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National Disability Insurance Agency
Chief Counsel Division
Standard Operating Procedure: Resolved by Hearing
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Document Control
Document No. NDIA-ART CM-SOP-032
Date July 2024
Status DRAFT
Version 005
Document applicability National – Chief Counsel Division
Owner Director, Continuous Improvement
Approval Status Log
Version 005
Reviewed by Assistant Director, Policy, Continuous Improvement
Endorsed by Chief Counsel Procedures and Guides Working Group
Approved by Director, Continuous Improvement
Approval date
Revision History
Revision Date Sections Summary of Changes
1 07/12/2022 All Original
2 09/01/2023 All Amended following consultation
3 12/01/2023 All Updated SOP formatting
Periodic review; amended to reflect the creation of the 4 26/08/2023 All Appeals and Litigation Oversight Committee (ALOC)
5 All Periodic review
Note: Document uncontrolled in hardcopy
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Contents
- Introduction 3
1.1 Purpose 3
1.2 Scope 3
1.3 Roles and Responsibilities 3
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Considerations for Hearing 4
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Procedure 4
3.1 Identify when a matter is listed for Hearing 4
3.2 Preparation for the Hearing 4
3.3 Requesting TAPIB Advice 5
3.4 Independent Medical Expert (IME) Report/Assessment 5
3.5 Engaging Counsel or a Solicitor Advocate 5
3.6 Statement of Facts, Issues and Contentions (SFIC) 6
3.7 Hearing Certificates 6
3.8 Requesting an Internal Legal Officer (ILO) 6
3.9 Listing on the Pre-ALOC Agenda 6
3.10 Pre-ALOC Meeting 7
3.10.1 What is Pre-ALOC? 7
3.10.2 Who attends Pre-ALOC meetings? 7
3.10.3 What information do I need? 7
3.10.4 What happens after your presentation? 7
3.11 ALOC Meeting 8
3.11.1 Who are the ALOC members? 8
3.11.2 How do I prepare for ALOC? 8
3.12 Attend the Hearing 8
3.13 After the Hearing 9
3.13.1 Closing Submissions 9
3.13.2 Hearing Report 9
3.13.3 ART Decision 9
3.13.4 Appealing an ART Decision 9
3.13.5 Implementing the Decision and Closing the Matter 9
3.14 Process Flowchart 10
- Annexures 11
4.1 Annexure A – Email requesting allocation of an ILO 11
4.2 Annexure B – Pre-ALOC Summary Template 12
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- Introduction
1.1 Purpose
This Standard Operating Procedure will help Case Managers undertake the necessary steps when a matter progresses to a Hearing before the Administrative Review Tribunal (ART). This procedure includes guidance around how to prepare for Appeals and Litigation Oversight Committee (ALOC) and pre-ALOC meetings.
1.2 Scope
This procedure applies nationally across the ART Case Management Branch and the Dispute Resolution and Litigation Branch, and is to be used by:
Case Managers (CM)
Internal Legal Officers (ILO)
1.3 Roles and Responsibilities
The roles and responsibilities set out in the Standard Operating Procedure: Document Control apply also to this SOP.
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3.2 Preparation for the Hearing
To prepare for the Hearing, you will need to ensure you have the following: s22(1)(a)(ii) - irrelevant material
Independent Medical Expert (IME) report/assessment (if applicable) s22(1)(a)(ii) - irrelevant material
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3.4 Independent Medical Expert (IME) Report/Assessment
It may be necessary to engage an IME if independent expert or medical opinion is needed, regarding a person’s impairments and functional capacity, or to help determine whether the requested supports are reasonable and necessary. The Lawyer with carriage will generally advise whether an IME report or assessment is required. TAPIB may also make a recommendation to engage an IME.
You will need to seek approval from your EL2 to engage an IME, and ensure that their approval is appropriately recorded in LEX. When seeking approval, you will include a summary of the matter and whether the recommendation to engage an IME was made by a Lawyer or TAPIB.
The IME will either complete a report based on the evidence available (‘on the papers’), or following in-person assessment.
The Lawyer with carriage will recommend 2 – 3 IMEs with relevant experience and qualifications. You will need to review these recommendations and select an IME.
The Lawyer with carriage will then draft a brief to the IME, which you will need to review. You will need to forward the brief to your EL1 for clearance.
When the IME report/assessment is completed, you will need to review their recommendations and consider whether an offer can be made to settle the matter.
The IME may be required to give expert evidence at the Hearing as a witness. s22(1)(a)(ii) - irrelevant material
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3.7 Hearing Certificates
Hearing Certificates set out your availability to attend the Hearing, as well as the availability of the Lawyer with carriage, of Counsel or the Solicitor Advocate, and of any witnesses on behalf of the Agency (including, for example, an IME).
The Lawyer with carriage will draft the Hearing Certificate for your review and clearance. Once cleared, you will instruct the Lawyer to lodge a copy with the ART. s22(1)(a)(ii) - irrelevant material
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3.10.3 What information do I need?
You will be required to address the below criteria when presenting your matter for discussion by Pre-ALOC. A template to assist you in addressing the below criteria is contained at Annexure B – Pre-ALOC Summary Template. s22(1)(a)(ii) - irrelevant material Evidence
Are we waiting on any further evidence from the participant or prospective participant or an IME? s22(1)(a)(ii) - irrelevant material
s22(1)(a)(ii) - irrelevant material
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Flowchart CM-SOP-032-V005-DRAFT Process 3.14 NDIA-ART OFFICIAL