NDIA Accountability Project

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GUIDING PRINCIPLES: NDIA’s Dispute Resolution Policy

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FOI 24/25-2051

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ndis:

GUIDING PRINCIPLES: NDIA’s Dispute Resolution Policy

The dispute resolution policy is guided by overarching principles about how the NDIA engages with participants, makes decisions and acts in litigation proceedings. The principles will make litigation a less adversarial process for participants and contribute to NDIA’s commitment to early resolution and improvements.

HOW WE WILL MAKE DECISIONS

  • The NDIA is responsible for administering a beneficial scheme. Where a benefit can be provided, it will be provided.
  • We will be participant-centric in everything we do.
  • We will resolve matters as quickly and as fairly as possible.

HOW WE WILL WORK WITH AND SUPPORT PARTICIPANTS

  • The participant’s direct contact will be the decision maker, not a lawyer. The direct contact details of the decision maker (Case Manager) will be provided to the participant.

  • We will involve legal representatives only where necessary.

  • We will help participants to connect with the appropriate advocacy services.

  • We will help participants understand the dispute resolution process and use plain English when engaging with them.

  • At all times, we will act in line with the Participants Services Charter by providing a service that is:

    o Transparent - We will make it easy to access and understand our information and decisions

    o Responsive - We will respond to individual needs and circumstances

    o Respectful - We will recognise your individual experience and acknowledge you are an expert in your own life

    o Empowering - We will make it easy to access information and be supported by the NDIS to lead your life; and

    o Connected - We will support you to access the services and supports you need.

In confidence and subject to legal professional privilege (and may be subject to common interest privilege, where applicable). It is recommended that NDIA Legal Services be conferred with prior to any intended distribution to ensure privilege is not waived.)

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HOW WE WILL ENSURE WE ACT LAWFULLY

  • We must comply with the law and the legal directions, particularly with:
    • The National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act)
    • NDIS Amendment (Getting the NDIS Back on Track No. 1) Bill 2024
    • the Legal Services Directions 2017
    • the Administrative Review Tribunal Act 2024 (ART Act)
    • any applicable case law
    • the ART Practice Directions;
    • any applicable Commonwealth Government or NDIA policies such as the Model Litigant Obligations and Legal Services Directions.
  • We are committed to the United Nation Convention on the Rights of Persons with Disabilities.

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DOCUMENT 2

NDIA Model Litigant Obligations (MLO)

Breaches, themes and learnings

Athena redacted: s22(1)(a)(ii) - irrelevant Senior Lawyer

4 April 2023

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Acknowledgment of Country

FOI 24/25-2051

It’s the vibe

It’s justice. If’s law. Ifs the vibe…

The model litigant obligation

  • Appendix B of the Legal Services Directions 2017
  • Overseen by the Attorney General through the Office of Legal services Directions (OLSC)
  • NDIA MLO guidelines are on the web

2A Tribunal’s objective

In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

(a) is accessible; and

(b) is fair, just, economical, informal and quick; and

(c) is proportionate to the importance and complexity of the matter; and

(d) promotes public trust and confidence in the decision-making of the Tribunal.

National Disability Insurance Agency v Davis [2022] FCA 1002

The Agency has no ‘stake’ in the outcome of an AAT application other than assisting the Tribunal to reach the correct or preferable decision.

(Mortimer J as she then was at [44])

Complaints investigated

  • More than 80 complaints have been investigated and recommendations made
  • Of these, the number of actual determined breaches has been low – 5
  • However, there have been multiple areas of concern and ‘near misses’

What does the data say?

[Pie chart showing percentages: Delay 27%, Adversarial approach 37%, Evidence 15%, IME 9%, Non-compliance 6%, Other 6%]

What is an adversarial approach?

Based upon complaints made, an adversarial approach is one where:

  • NDIA is relying on legal technicalities or communicating in legally technical language
  • There is a power imbalance between a legally represented NDIA and a self-represented applicant
  • NDIA delegates do not attend conferences and/or do not participate in the conference
  • Counsel has been engaged, instructed by a lawyer, to appear at a hearing, particularly an interlocutory hearing
  • The scope of the issues before the Tribunal ‘creeps’ on the initiative of the NDIA
  • Perception that lawyers are acting unethically

Evidence and IME’s

  • Complaints about evidence tended to focus on:
    • NDIA requiring more evidence to be filed when the participant feels all the evidence requested has been filed but it is ‘never enough’
    • Summonses that are late or intrusive
  • Complaints about IME’s tended to focus on:
    • Briefing issues – what evidence was included or not included in the brief
    • Unnecessary IME
    • Late IME

Tribunal/Court commentary

GXFS and NDIA [2020] AATA 4555

  • The NDIA sought consent to a release from the implied undertaking in circumstances where a participant may have felt that agreement on the substantive application was dependant on the agreement to the release of the implied undertaking.

NDIA v Davis [2022] FCA 1002

  • The NDIA ‘deluged’ the Tribunal with submission in contrast to the ‘more manageable’ submissions by the participant

NJDF and NDIA [2022] AATA 2138

  • The NDIA did not comply with directions of the AAT due to the “complex supports needs team” within the Agency in circumstances where the challenging but achievable agreed timetable had been set in the best interests of the child participant

Please note – pages 15 to 26 of this document bundle have been removed pursuant to

section 47C (deliberative processes) and section 47F (personal privacy) of the FOI Act

(1982).

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Conclusion

  • NDIA has an obligation to :
    • assist the Tribunal to make its decision (LSD)
    • Assist the Tribunal to fulfill its s 2A objectives (AAT Act)
  • Assisting the Tribunal goes much further than just assisting it to make a correct or preferable decision on the material before it – this is only one of the obligations on the NDIA
  • We are also required to assist the Tribunal to be accessible, fair, just, economical, informal and quick.

Questions?

Delivered by the National Disability Insurance AGeNnGye 28 or 28