DOCUMENT 1 FOI 24/25-0113
Practice Guide – Review of Decisions
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Contents
Practice Guide – Review of Decisions …………………………………………………………………………. 1
- Purpose ………………………………………………………………………………………………………. 3
- To be used by ………………………………………………………………………………………………. 3
- Scope ………………………………………………………………………………………………………….. 3
- Review of a reviewable decision ……………………………………………………………………… 4
- Timeframe for requesting a review ……………………………………………………………….. 4
- Who can request an internal review?…………………………………………………………….. 4
- How does a person request an internal review? ……………………………………………… 5
- The internal review process ……………………………………………………………………………. 6
- Who will conduct the internal review? ……………………………………………………………. 6
- How is the request for internal review prioritised? …………………………………………… 6
- How long does it take to get an internal review decision? ………………………………… 7
- How will the decision be communicated? ………………………………………………………. 7
- Automatic internal reviews …………………………………………………………………………… 8
- How do internal reviews and participant requested plan reviews differ ………………….. 8
- Participant requested unscheduled plan reviews (s 48 (2)) ………………………………. 8
- How are internal reviews (statement of supports) and participant requested plan reviews different? ……………………………………………………………………………………………….. 9
- Review rights …………………………………………………………………………………….––––– 9
- Key points to consider about internal reviews ……………………………………………….. 10
- Key points to consider about participant requested plan reviews: ……………………. 10
- Changes to plan management ………………………………………………………………………. 10
- Supporting material ……………………………………………………………………………………… 11
- Process owner and approver ………………………………………………………………………… 11
- Feedback …………………………………………………………………………………………………… 11
- Version change control ………………………………………………………………………………… 11
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1. Purpose
This Practice Guide will help you to understand the internal review process. This guide will explain:
- what a review of a reviewable decision is
- what types of decisions are reviewable
- who can request an internal review
- the differences between a request for a review of a reviewable decision, and a request for a plan review or other review type.
2. To be used by
- Plan Developers – Planners and Partners in the Community (LACs and Early Childhood Early Intervention [ECEI]).
- Business Support Officers (BSO’s).
- National Contact Centre (NCC).
- National Access Team (NAT).
3. Scope
Under the National Disability Scheme Act 2013 (the NDIS Act), certain decisions made by the National Disability Insurance Agency (NDIA) can be reviewed if requested by a person directly affected by the decision. These decisions are known as reviewable decisions and are listed in s 99 of the NDIS Act.
If a person directly affected by a reviewable decision is unhappy with the decision they can request the NDIA review it and make the decision again. This is called an internal review or s 100 review.
When an internal review is requested, a person not involved with making the original reviewable decision examines the evidence and information related to the decision, and makes a new decision to replace the original reviewable decision.
The most common decisions subject to review are:
- Access not met (s 99 (1) – 1) – A person requests access to the NDIS, and the NDIA decides they do not meet the access criteria to become a participant.
- Access revoked (s 99 (1) – 3) – A person was once a participant of the NDIS, but had an eligibility review and was found to not meet the access criteria, so their status as a participant was revoked.
- Statement of supports (s 99 (1) – 4) – The NDIA approves a participant’s NDIS plan, and the participant is unhappy with the supports/funding in that plan, the plan duration or the plan management decision.
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- Not to review a plan (s 99 (1) – 6) – The participant has requested a participant requested plan review under s 48(2) of the NDIS Act and the NDIA decided not to conduct that plan review.
A full list of reviewable decision types are listed in s 99 of the NDIS Act.
4. Review of a reviewable decision
Timeframe for requesting a review
A request for an internal review must be made within three months of receiving the original reviewable decision. The three month timeframe is set by s 100(2) of the NDIS Act. The NDIA calculates this by allowing 100 days from the date the original reviewable decision was made. This timeframe allows for postage time.
If a person requests an internal review more than three months from the date they receive the original reviewable decision, the NDIA cannot conduct an internal review. However, the person may initiate a participant requested plan review depending on their circumstances.
You should talk to the participant or their authorised representative about what a participant requested plan review involves. Tell them a delegate will look at if there is enough information to justify a plan review, not whether the supports in the plan are correct.
You should also tell the participant that a delegate may decide not to approve their request. If the participant understands this, and wants to proceed, lodge a participant requested plan review.
If they do not wish to proceed with lodging a plan review this information will be considered at the participant’s next scheduled review meeting.
For further guidance, refer to Practice Guide – Unscheduled Plan Reviews and Standard Operating Procedure – Plan review request.
Note: Only decisions listed in s 99 of the NDIS Act can be subject to internal review. If a participant’s plan was created as a result of a previous internal review decision or an Administrative Appeals Tribunal (AAT) decision, that plan cannot be subject to internal review.
Who can request an internal review?
A person directly affected by a reviewable decision can request the decision be reviewed by the NDIA. Who is considered to be a directly affected person will depend on the reviewable decision type and the individual circumstances of each request.
A directly affected person may include:
- a prospective participant (access not met decisions, access revoked decisions)
- a participant (plan related decisions)
- a person with parental responsibility for a child (decisions made relating to a child under 18 years of age, decisions to appoint, or not appoint a child’s representative)
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- a plan or correspondence nominee, or a person seeking to be appointed as a nominee (decisions to appoint, not appoint, suspend or revoke someone’s nominee status)
- a registered provider, or someone who applies to be a registered provider of supports (decisions related to providers)
- a person who owes a debt to the NDIA (decisions related to debts).
A person may also make a request on behalf of a directly affected person if they have authority or consent to do so. The NDIA needs consent, preferably in writing, from the directly affected person. This could include:
- a consent form signed by the directly affected person
- an email confirming the directly affected person gives their consent to lodge the review, or
- an interaction documenting a telephone conversation with the directly affected person where they provide their consent.
If you are unsure if a person requesting a review is able to do so, refer to Standard Operating Procedure – Consent and Authority.
How does a person request an internal review?
A person can request an internal review by:
- sending or delivering a written request (including by email) to the NDIA
- completing the Application for a review of decision from the NDIS website and lodging this form in person, by mail or email to NDIS enquiries.
- making a verbal request in person, by telephone or by other means at their local NDIS or partner office.
The person may provide any new evidence they would like the NDIA to consider as part of their internal review.
The NDIA or partner staff member who receives the internal review request must enter the details on the s 100 request form or in Feedback in the System. Refer to the Standard Operating Procedure – Documenting review of decisions – s 100.
The original reviewable decision will remain in place while the internal review is undertaken.
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5. The internal review process
Who will conduct the internal review?
When an internal review request is lodged, a member of the Internal Review Team (IRT) will determine if the request is valid. If the request is considered valid, an internal review officer will contact the requestor to acknowledge, and clarify the request. The request will then be allocated to an internal review delegate to complete the review.
The delegate will reconsider the facts, laws and NDIA policies related to the original decision and determine what the correct or preferable decision is. The delegate will also consider any new information provided. If needed they will consult with NDIA Subject Matter Experts and consider if any additional evidence is required.
The power to review a reviewable decision is detailed in the NDIS Operations Delegations – Instrument of Delegation.
If the review request is not considered valid a member of the IRT will discuss other options and next steps with the participant or their authorised representative.
How is the request for internal review prioritised?
Priority will be considered if there is evidence of:
- risk of harm to the health or well-being of a person
- risk to stability in the accommodation arrangements of the participant, including the risk of homelessness
- risk to stability in the care arrangements of the participant, including the risk of a primary carer not being able to provide care
- risk associated with the nature of the person’s disability, including the risk of rapid deterioration or progression
- the participant is hospitalised and is awaiting discharge
- the participant has an active request for Assistive Technology, Home Modifications or Supported Independent Living.
If the IRT determine the person is at high or extreme risk based on the NDIA’s Escalation and Prioritisation Matrix, the internal review will be assigned to a case officer or delegate as a priority. The IRT will prioritise requests based on the highest category of risk that applies based on the participant’s circumstances.
An IRT case officer or delegate will make contact with the person who requested the review within 48 hours of receiving escalation notification and tell them they will be completing the review as a priority. They will also gather any relevant information needed to complete the review.
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The IRT case officer or delegate will then complete the internal review as soon as reasonably practical. Case officers or delegates will also prioritise reviews based on the end date of NDIS plans to ensure participants receive continuity of supports.
Note: If there is an imminent risk of harm to the participant or someone else, refer to the NDIA’s Participant Critical Incident Framework.
How long does it take to get an internal review decision?
The NDIA has committed under the Participant Service Guarantee to completing all internal reviews within 90 days from 1 July 2020. By June 2021, the NDIA aims to have all internal reviews completed within 60 days from the date of the request. If this is not possible, the reviewer will contact the person who requested the review, explain the reason for the delay, and provide an estimated timeframe for completion.
How will the decision be communicated?
An IRT case officer or delegate has three options available to them when completing an internal review:
- Confirm the original decision – if they agree the original reviewable decision was correct. This means there is no change to the original reviewable decision.
- Vary the original decision – if they change the original reviewable decision.
- Set aside the original decision – if they set aside the original reviewable decision and make a new decision in its place.
The IRT case officer or delegate will contact the person who requested the internal review by phone (or their preferred contact method) when they have reached a decision. They will explain the outcome of the review and the reasons for their decision.
The IRT case officer or delegate will send a decision letter clearly setting out the decision and the reasons for the decision on the same day as or within one business day of this phone call. If the decision results in a new plan being made for a participant a copy of that plan will be sent with the letter. Decision letters are located on the Letters and Forms Intranet page.
The decision letter also sets out the person’s right to request a review of the decision by the Administrative Appeals Tribunal (AAT). The letter includes a link to the AAT’s website and their phone number to enable the person to seek further information.
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Automatic internal reviews
Internal reviews are automatically initiated by the NDIA when:
- s 21(3)(a) – The NDIA has decided a person does not meet the access criteria because an access decision was not made within 21 days of receiving the request. For example, if a request is made on 2 August, the 21 days will begin on 2 August.
- s 21(3)(b) – The NDIA has decided a person does not meet the access criteria because a formal request for information was made (under s 26 of the NDIS Act) and the access decision was not made within 14 days after receiving the last piece of information or report. For example, if the last information or report is received on 2 August, the 14 days will begin on 3 August.
- s 48(2) – The participant has requested a plan review, the NDIA must decide whether or not to conduct the plan review within 14 days after receiving the request. For example, if the request was received on 2 August, the 14 days will begin on 3 August. If a decision is not made within 14 days, the NDIA is deemed to have made a decision not to conduct a plan review. This decision will be internally reviewed automatically.
In the above situations the person or persons directly affected by the decision do not need to request the internal review – this will occur automatically.
If a person contacts the NDIA requesting an internal review in these circumstances you should not lodge a s 100 request form in the System.
6. How do internal reviews and participant requested plan reviews differ
Participant requested unscheduled plan reviews (s 48 (2))
A request for plan review under s 48(2) of the NDIS Act, also known as a participant requested unscheduled plan review or s 48, is a request for the NDIA to initiate the plan review process outside of the scheduled plan review. A participant or their representative can make a request for participant requested plan review at any time.
A participant requested plan review requires a delegate to consider if the participant’s circumstances have changed sufficiently since their plan was approved, to require a plan review before the scheduled review date.
If a participant requested plan review is declined, the person may request an internal review of that decision.
Participant requested plan review decisions are made by the National Review Team (NRT). For further information, refer to the Practice Guide – Unscheduled Plan Reviews and Standard Operating Procedure – Plan review request.
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How are internal reviews (statement of supports) and participant requested plan reviews different?
In some cases it can be difficult to distinguish between an internal review related to a participant’s plan and a participant requested plan review. You should consider the participant’s circumstances and needs when determining which review type is best for them. You should also talk with the person requesting the review about what option/s are available to them.
The main difference between an internal review and a participant requested plan review is the reason the person requests the review. For example, a request for an internal review of a statement of participant supports is a request to have a delegate reconsider the decision. This is because the participant believes the original planner made the wrong decision. A participant requested plan review is a request to have their plan reviewed, because the participant’s circumstances or needs have changed since the plan was approved.
Review rights
6.3.1 Participant requested plan review
If the participant is unhappy with a participant requested plan review decision they can apply for an internal review of the decision. If the participant receives an internal review decision about their participant requested plan review and they are still unhappy, they can apply for external review to the AAT within 28 days of receiving that decision. Participants cannot apply to the AAT without first having the NDIA complete an internal review of the original reviewable decision.
IRT staff may contact the person who requested the review to clarify their request if it is not immediately clear what the request is, or if it may be for the ‘wrong’ review type. IRT staff will ensure the participant receives the review type that best meets their needs.
6.3.2 Internal review
Once an internal review decision is made, the NDIA cannot complete additional internal reviews of the same reviewable decision, or re-make the internal review decision. If a person is unsatisfied with the decision and would like it reviewed, they must apply to the AAT. This is known as an external review or merits review.
The request for an external review must be made within 28 days of receiving written notice of the NDIA internal review decision. If the timeframe has passed the person can apply directly to the AAT for an extension of time by filling out an application for extension form on the AAT website, or by writing to the AAT directly.
Once the AAT makes a decision about the review, the NDIA will implement the decision.
Note: The internal review decision remains in place while the external review is undertaken. A request for external review does not prevent the NDIA from implementing the participant’s plan.
Further information is available on the AAT website or in the NDIA Operational Guideline - Review of Decisions – External Review.
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Key points to consider about internal reviews
To help identify if a person is requesting an internal review, you should consider the following:
- Is the request related to a reviewable decision?
- If related to a plan, was the plan created as a result of a plan review? If a participant’s plan was created as a result of a previous internal review decision, or an Administrative Appeals Tribunal (AAT) decision, that plan cannot be subject to internal review.
- Is the request made within three months of receiving the decision?
- For planning/statement of supports internal reviews - is the request being made because the person was dissatisfied with the plan decision and believes the plan decision was wrong from the outset? For example, the participant is not satisfied with the supports included in their recently approved plan because they asked for $50,000 in their core supports budget but only received $20,000.
Key points to consider about participant requested plan reviews:
- Is the request being made because of changed circumstances, or the plan no longer meets the participant’s needs? For example, the participant’s primary informal carer is no longer able to care for them and extra supports are required to compensate for that loss.
- Has the person provided new information, or are they requesting something new that they didn’t request at their last planning meeting?
7. Changes to plan management
When the participant requests a review or change to their plan management, it is important to check what type of review to progress. This is to make sure you use the correct review tool in the NDIS Business System and the request goes to the right team so they respond in a timely manner.
Below are two review types with examples to help you identify what type of review request to progress:
- Reviewable decisions (s 100) - When the delegate makes a decision not to approve the plan management type the participant requested and the participant disagrees with this decision. For example, the participant requested to self-manage and the plan delegate determined self-management would present an unreasonable risk to the participant and made the decision to have funded supports Agency managed. This must occur within three months of the participant being notified of the decision.
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- Unscheduled plan review (s 48) - When the participant wants to change their plan management type. For example, the participant is now able to self-manage with the help of informal supports and wishes to change their plan management to self-management. This can be requested any time after the plan has been approved.
8. Supporting material
- NDIS Act 2013 (s 100)
9. Process owner and approver
General Manager Participant Experience and Design.
10. Feedback
If you have any feedback about this Practice Guide please email Service Guidance and Practice In your email, remember to include the title of the resource you are referring to and to describe your suggestion or issue concisely.
11. Version change control
| Version No | Amended by | Brief Description of Change | Status | Date |
|---|---|---|---|---|
| 10.0 | KN0014 | Class 1 Approval. | APPROVED | 2019-07-15 |
| 11.0 | CW0032 | Class 2 Approved Annual review of guidance, including review and update of content by Business Owner. | APPROVED | 2020-08-24 |
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