FOI 24/25-1974 OFFICIAL
Model Litigant Obligations (MLO) Deep Dive
The contents of this document are OFFICIAL
Background
The Legal Services Directions 2017 (Legal Services Directions) are a set of binding rules issued by the Attorney-General about the performance of Commonwealth legal work. Agencies and its legal providers must behave as model litigants in the conduct of legal work in all courts and tribunals. Model Litigant Obligations (MLOs) are found in Appendix B of the Legal Services Directions.
The Office of the Legal Services Coordination (OLSC) administers the Legal Services Directions, and monitors the compliance of non-Corporate Commonwealth entities through mandatory reporting requirements outlined in the Legal Services Directions. The NDIA meets with the OLSC every six months to address emerging model litigant issues.
The NDIA, as a Corporate Commonwealth Entity (CCE), is required to comply with the MLOs under the Legal Services Directions. However, the NDIA is not required to report to OLSC on possible or apparent breaches of the Legal Services Directions. Nevertheless, the NDIA has established voluntary MLO reporting arrangements with the OLSC.
In 2023, the NDIA developed a Model Litigant Framework which outlines the commitment the NDIA has to the MLOs, as well as the MLO complaints process.
This Framework includes:
- Our model litigant guidelines | NDIS (published on the NDIS website)
- Standard Operating Procedures for Model Litigant Complaints
- Model Litigant Complaints Monitoring Process.
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Model Litigant Obligations (MLO) Deep Dive
MLO Data Summary
A summary of MLO complaints received and closed by the NDIA are outlined in the following table:
| Financial Year | Received | Closed | Open at end of FY | Breaches* |
|---|---|---|---|---|
| 2017-18 | 1 | 0 | 1 | 0 |
| 2018-19 | 2 | 0 | 3 | 0 |
| 2019-20 | 1 | 0 | 4 | 0 |
| 2020-21 | 4 | 0 | 8 | 0 |
| 2021-22 | 28 | 15 | 21 | 0 |
| 2022-23 | 108 | 110 | 19 | 6 |
| 2023-24 | 51 | 54 | 16 | 2 |
| 2024-25# | 26 | 22 | 22 | 1 |
Data to 31 January 2025 as at the date of data extraction (12 February 2025)
* Breach counted on the date the complaint is closed and the breach is confirmed, not the date the initial complaint was made.
There has been a significant decrease in the number of Model Litigant Complaints received by the NDIA in recent years, with the total number of complaints closed being greater than the total number of complaints received in FY2022-23 and FY2023-24. This has been as a result of a range of measures implemented by the NDIA, including developing a Model Litigant Framework. The Framework outlines NDIA’s commitment to the MLO and complaints processes.
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Model Litigant Obligations (MLO) Deep Dive
Summary of Breaches
Between 1 July 2019 and 31 January 2025, there have been 9 breaches of the MLO.
A summary of the breaches over this period is as follows:
- the Agency failing to provide adequate statements of reasons for support decisions and not informing the participant about information required
- the Agency causing unnecessary delay in handling the litigation; not resolving the dispute without litigation where liability (at least in part) was clear; not endeavouring to avoid, prevent and limit the scope of legal proceedings; and not keeping costs to a minimum and by contesting liability where the issue was quantum
- wide-spread procedural inadequacies, including document searches and an overly adversarial approach
- the Agency not providing agreed supports through an Alternative Dispute Resolution process
- the Agency causing unnecessary delay in the handling of the application and not dealing with the application promptly
- the Agency’s failure to use its best efforts to assist the former Administrative Appeals Tribunal (AAT), on the basis that the Agency was non-compliant with a direction and then failed to attend 3 consecutive directions hearings
- the Agency not following internal processes that delayed acting on instructions
- a Legal Service Provider failing to notify the Agency of a request from a participant to obtain records relating to phone records.
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Model Litigant Obligations (MLO) Deep Dive
Key themes and learnings from the MLO complaints:
The key learnings from MLO complaints include:
Timeliness:
- resolving matters early, appropriately and consistently where possible
- promptly implementing all Decisions and Orders (for example, by building and approving participant plans)
- timely notification to the participant or prospective participant and the Tribunal of any change in the Agency’s representation as soon as possible and communicating expected delays or identified human error
- promptly seek a variation of, or an extension of time in which to comply with, a procedural Direction with which the Agency suspects it may not be able to comply
- Acknowledge receipt of communication received by or on behalf of participants and prospective participants, to minimise complaints which relate a manifest lack of communication by or on behalf of the Agency.
Clear communication
- providing clear reasons for all decisions made by the Agency, and requests for information
- engaging in pro-active, open and appropriate communication style with participants and prospective participants and their representatives, and the Tribunal
- ensure that the Agency’s submissions are clearly communicated, and that all reasonable care and effort is made to obtain necessary information
- engage meaningfully in alternative dispute resolution by ensuring that a Case Manager is available to attend and participate on behalf of the Agency
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- negotiate with participants and prospective participants as soon as possible and in good faith, where it becomes necessary to rescind or withdraw an offer previously made to resolve the matter.
Key NDIA MLO initiatives
The NDIA considers feedback from all Model Litigant complaints, regardless of whether a breach is determined, and has improved and developed processes to ensure recommendations from model litigant investigations contribute to the dispute resolution improvement program.
To date, this feedback has been incorporated by:
- refining and improving the MLO complaint management and escalation process, templates and responsive actions
- focusing on resolving matters as efficiently as possible and reducing the number of outstanding ART matters aged greater than 12 months
- presenting a Model Litigant Series to ensure all staff involved in dispute resolution have a thorough understanding of the operation, effect and impact of MLOs. The MLO series for staff included participants, disability advocates and special guests, Ms Natalie Wade, and Mr Graeme Innes AM. All external law firms attend the Model Litigant Series.
- delivering training on the NDIA’s Model Litigant Obligations included in the legal divisions’ induction and Continuing Legal Education sessions. The MLO sessions have been programmed as part of the annual training calendar
- identifying and appointing case management complaint champions to support prompt investigation and response to MLO complaints, whilst championing the obligations across their teams.
- Establishing weekly engagement between the NDIA and the ART to review potential non-compliance issues. These meetings will ensure the NDIA meets its legislative obligations while improving participant outcomes.
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The NDIA has established and implemented a Legal Service Provider Quarterly Performance Management Framework that ensures regular reporting and feedback is provided to all ART external Legal Service Providers. This ensures that our panel firms embed continuous improvement on NDIA ART matters.
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