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STANDING INSTRUCTIONS A Administrative Appeals Tribunal

(October 2023)

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FOIOFFICIAL24/25-1246 Contents A: NDIA STANDING INSTRUCTIONS ……………………………………………………………………………………. 4 A.1 Purpose ………………………………………………………………………………………………………………………….. 4 B: APPROACH TO DISPUTE RESOLUTION …………………………………………………………………………….. 4 B.1. Overview ……………………………………………………………………………………………………………………….. 4 B.2. Litigation Principles …………………………………………………………………………………………………………. 5 C: AGENCY INSTRUCTIONS ……………………………………………………………………………………………….. 5 C.1 Agency Legal Operations and Early Assessment …………………………………………………………………… 5 C.2 NDIA Case Managers (CM) ………………………………………………………………………………………………… 6 C.3 Agency Internal Legal Officers (ILO, if any) ………………………………………………………………………….. 6 C.4 Internal ILOs and External LSPs – roles and responsibilities …………………………………………………… 6 D: KEY STEPS IN THE TRIBUNAL APPLICATION (for LSPs and ILOs) …………………………………………… 7 D.1 Tribunal documents (T-documents) ……………………………………………………………………………………. 7 D.2 Interlocutory Directions Hearings/ Jurisdictional and Extension of time matters/ Urgent Directions Hearings ……………………………………………………………………………………………………………………………….. 8 D.3 Case and Conciliation Conferences (CC) incl (First Case Conference (1CC) ………………………………. 9 D.4 Litigation Strategies …………………………………………………………………………………………………………. 9 D.5 Statements of Issues (SOIs) ……………………………………………………………………………………………… 10 D.6 Other Case or Conciliation Conferences (CC) ……………………………………………………………………… 11 D.7 Other Evidence (summons or medical evidence) ……………………………………………………………….. 11 D.8 Social media (and other surveillance evidence) …………………………………………………………………. 12 D.9 Statement of Facts Issues and Contentions (SOFIC) ……………………………………………………………. 13 D.10 Alternative Dispute Resolution ………………………………………………………………………………………. 13 E: SUBSTANTIVE HEARING PREPARATION AND ATTENDANCE ………………………………………………. 14 E.1 Hearing Certificate/ Appeals and Litigation Oversight Committee (ALOC) Paper …………………….. 14 E.2 Solicitor Advocate …………………………………………………………………………………………………………… 14 E.3 Briefing Counsel ……………………………………………………………………………………………………………… 15 E.4 Formal advice ………………………………………………………………………………………………………………… 16 E.5. Conduct of hearing ………………………………………………………………………………………………………… 16 F: POST CONFERENCE / HEARING ……………………………………………………………………………………. 16 F.1. Conference/ conciliation/ hearing reports ………………………………………………………………………… 16 G: ADVICE …………………………………………………………………………………………………………………… 17 G.1 Knowledge Bank and Advice generally ……………………………………………………………………………… 17 H: DECISIONS ………………………………………………………………………………………………………………. 17 H.1 Closing a file/implementation of decisions ………………………………………………………………………… 17

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H.2 New decisions ……………………………………………………………………………………………………………….. 17 I: APPEALS …………………………………………………………………………………………………………………… 18 I.1 Conduct of Appeals………………………………………………………………………………………………………….. 18 I.2 Instructions regarding Appeals ………………………………………………………………………………………….. 19 I.3 Non-Agency initiated Appeals …………………………………………………………………………………………… 19 I.4 Appeal books ………………………………………………………………………………………………………………….. 19 I.5 Transcripts/ Evidence ………………………………………………………………………………………………………. 20 I.6 Communications protocol regarding Appeals ……………………………………………………………………… 20 J: ESCALATIONS ……………………………………………………………………………………………………………. 20 J.1 Escalations ……………………………………………………………………………………………………………………… 20 K: COMMUNICATION PROTOCOLS AND DOCUMENT MANAGEMENT ……………………………………. 20 K.1 Self-Represented Participant ……………………………………………………………………………………………. 20 K.2 Accessible format of documents to Tribunal and/or Participant …………………………………………… 21 K.3 Correspondence …………………………………………………………………………………………………………….. 21 K.4 Written correspondence protocol …………………………………………………………………………………….. 21 K.5 Notification of notices …………………………………………………………………………………………………….. 21 K.6 Definitions …………………………………………………………………………………………………………………….. 22

Appendices and templates:

1. NDIA Legal Provider Management Framework

2. Summary of Standing Instructions

3.    Litigation Strategy template

4.  Statement of Issues / Position (SOI) (and chronology) template

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FOIOFFICIAL24/25-1246 A: NDIA STANDING INSTRUCTIONS A.1 Purpose

1. Legal service providers (LSPs) are engaged by the National Disability Insurance Agency (Agency or NDIA) to act on behalf of the NDIA Chief Executive Officer to support the management of Agency Administrative Appeals Tribunal (Tribunal) applications for review of reviewable decisions under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
2. Any request to deviate from these Standing Instructions:

a. in a particular case, should be raised with the CM (and Internal Legal Officer (ILO) if one is assigned/ if any) b. on more than a case-by-case basis, should be made to the Deputy Chief Counsel, AAT Dispute Resolution & Litigation (DCC DRL) cc Chief Counsel Division (CCD) Contract Relationship Manager. (See contact list at NDIA Legal Provider Management Framework (Framework) Appendix 1).

3. These Standing Instructions should be read in conjunction with the Framework and are aligned to, and comply with the following, which take precedence over the Standing Instructions to the extent of any inconsistency:

a. NDIS Act, including objectives b. NDIS Rules c. Agency Operational Guidelines d. Obligation to assist the Tribunal (section 33(1AA) and (1AB) Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)) e. AAT Practice Directions (incl Review of National Disability Insurance Scheme Decisions Practice Direction) f. Legal Service Directions 2017 (Directions), noting compliance for the Agency as a corporate Commonwealth entity (other than a government business enterprise) includes:

• Appendix B – The Commonwealth’s Obligations to Act as Model Litigant (MLOs) • Appendix D – Engagement of Counsel • Appendix F – Procurement of Commonwealth legal work, including when pro bono legal work is undertaken by a legal services provider • Handling of claims of public interest immunity • Reporting on litigation involving Constitutional issues and another Commonwealth agency • Reporting obligations on legal service expenditure and receipt of service of documents

4. Standing Instructions, all Appendices and the Framework will be subject to quarterly reviews and updates provided ahead of LSP quarterly meetings with the Agency.

B: APPROACH TO DISPUTE RESOLUTION B.1. Overview

1. The Agency’s focus is on the early assessment and resolution of applications by Participants (including prospective participants) to the Tribunal, having regard to the NDIS Act and correct or preferable decision-making, and noting the Agency and its representatives are required to OFFICIAL

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adhere to the MLOs in the Directions. Under the AAT Act, the Agency and its representatives are also required to assist the Tribunal and use best endeavours to assist the Tribunal to make its decision in relation to the proceeding.

2. The Agency seeks to ensure that all Tribunal applications, including those outsourced to external law firms/ LSPs, are managed proactively, appropriately, and in a timely manner (i.e., wherever possible within 12 months) with an aim to resolve each application as quickly, fairly, and efficiently as reasonably practicable (having due regard to the CCD mission (as set out in the Framework) and Litigation principles (below).

3. Participants seeking external review of Agency decisions in the Tribunal frequently have a lifelong relationship with the Agency and may make an application at times of pressure in Participant’s lives. Adversarial approaches to the resolution of applications are not appropriate, may have long-term adverse impacts on the Participant and their relationship with the Agency, and may cause significant relationship damage with the Tribunal and other stakeholders (such as advocacy groups that assist Participants in proceedings). LSPs are strongly encouraged to take an inquisitorial, rather than adversarial, approach to Tribunal matters. B.2. Litigation Principles

4. The LSP’s partnership with the Agency for reviews under the NDIS Act will promote Tribunal matters that build trust in the Agency based on MLOs, assisting the Tribunal, promoting the correct or preferable decision, and compliance with law.

5. Many Participants, and their families and carers, may find Tribunal proceedings overly legalistic, adversarial, confusing, and distressing. When undertaking matters for the Tribunal, both LSPs and ILOs, are instructed by the CM, and have a responsibility to assist Participants having regard to Agency litigation principles including: a. human and Participant-centred interactions, based on respectful, empathetic approach seeking to understand all perspectives b. disability and trauma informed engagement c. an inquiring / non-adversarial and minimally legalistic approach d. promoting plain English and accessibility e. practical, evidence-based, risk-based, whole-of-person resolution focus f. integrity, equity, and good conscience g. objectivity and considering strategic Scheme issues in analysis and advice h. attention to detail, accuracy, reporting, record-keeping, and timeliness i. collaborative, professional, and supportive approach when working with others j. proactive case management, and k. innovation and attention to continuous improvement.

6. The Framework provides an overview and measurement of Key Performance Indicators and the NDIS Specific Performance Measures, including acting consistently with the NDIA’s Participant Service Charter, and also informs litigation approaches. s22(1)(a)(ii) - irrelevant material

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D.7 Other Evidence (summons or medical evidence) 26 The scheduling of summonses and additional assessments should be raised with the Tribunal at the 1CC. The ILO/LSP should draft terms of summons which are narrowed as far as possible, to limit privacy impacts for the Participant. The ILO/LSP should provide these to CM for instructions.

27 Before providing instructions on the terms of the summons, the CM will speak to the Participant to check if the material can be obtained directly, and regarding any suggestions to narrow the summons and the reasons for this suggestion. The CM will provide the ILO/ LSP instructions to issue a summons (if any).

28 In relation to a summons, the ILO/ LSP are then provided standing instructions to:

a. arrange inspections of summonsed material on return of summons; b. provide a copy of material and a summary of summonsed material within 10 days of inspection of summons material (unless CM agrees to further time); and c. update Litigation Strategy/ Update and chronology (from SOI) within 10 days of inspection of summons material. 29 s47E(d) - certain operations of agencies

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30 Before providing instructions on these arrangements, the CM with the ILO/LSP will speak to the Participant to explain the evidence gaps that this expert will address and seek voluntary agreement to the arrangements. This may be done at 1CC but if not, should be done by phone prior to a second or other CC.

31 When an ILO/LSP is drafting a letter to an expert, the questions should be drafted to draw the expert’s attention to the issues relevant to the decision before the Tribunal and, where appropriate, issues which are relevant to the general management of the claim, including in compliance with such briefing of expert templates and/or guides (provided to the ILO/ LSP from time to time by the Agency). The Agency bank of questions should be consulted prior to sending the question to the Participant. The material provided to the expert should include all other relevant expert evidence, and materials from T-documents and extracts of summonsed material, and if available a Statement of Lived Experience (SOLE) from the Participant. Questions should be narrowed as far as possible, to limit privacy impacts for the Participant.

32 Medico-legal assessments may need to be deferred until the parties have obtained clinical notes under summons (although preliminary arrangements for the assessment should generally occur prior to a summons being issued).

33 TAB advice should be sought through the CM, if and as required on relevant experts and questions for experts.

34 When obtaining a medical or other assessment, the ILO/ LSP must comply with the AAT’s Guidelines for Persons Giving Expert and Opinion Evidence (a copy of which must be attached to the brief to the expert).

35 Where a report of an assessment, medico-legal or otherwise, is obtained the ILO/ LSP are instructed to:

a. provide a copy of the report and a summary of the report to CM (cc to ILO, if any) within 5 days of receipt of report (unless CM agrees to further time); b. provide advice in relation to the report and recommendations as to next steps and the impacts, if any on the outcome of the application, in an updated Litigation Strategy/ Update, within 5 days of receiving report. c. file and serve the report within 2 working days of instructions being provided, or as directed by the Tribunal; and

• if clarification regarding information in a report is recommended, any such clarification should be sought and obtained in writing from the original expert using a similar process to the original request process. (This requirement is separate to Counsel’s proofing of medico-legal specialists in preparation for a hearing).

36 The Agency reports quarterly on the total amount and expenditure of Independent Medical Experts that are engaged on our internal and external matters (see Framework). s22(1)(a)(ii) - irrelevant material OFFICIAL

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K.6 Definitions 10 In these Standing Instructions:

Agency means the National Disability Insurance Agency Agency Tribunal email means s47E(d) - certain operations of agencies @ndis.gov.au BM CM means the Business Manager of the AAT Claims Management branch, Chief Counsel Division CM means a Case Manager who is the Instructing Officer in the AAT Claims Management branch, Chief Counsel Division DCC DRL means the Deputy Chief Counsel of the AAT Dispute Resolution and Litigation branch, Chief Counsel Division ILO means Agency internal legal officer of the AAT Dispute Resolution and Litigation branch instructed as solicitor on record for a matter LSP means an external legal service provider ILO/ LSP throughout this document means ILO if they are the lawyer with carriage OR LSP if they are the lawyer with carriage Legal Operations means the Legal Operations team in the Chief Counsel Division, responsible for compiling T-Documents and other administrative matters. NDIS or Scheme means National Disability Insurance Scheme NDIS Act means National Disability Insurance Scheme Act 2013 Participant means the person or entity that applied for Tribunal review of a Reviewable Decision, including a prospective participant, and their representatives, unless the contrary intention appears Tribunal means the Australian Tribunal that conducts independent merits review of administrative decisions made under Commonwealth laws of the Australian Government

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