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AAT Case Management Guide

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AAT Case Management Guide

DOCUMENT 1

Supportable Impairments

OFFICIAL For Internal Use Only

Field Content Reference Documents
Title Supportable Impairments
Purpose This document is part of a suite of guidance documents for case managers to use in formulating their approach to managing individual cases before the Administrative Appeals Tribunal (AAT). Section 24 of the National Disability Insurance Scheme Act
Scope A participant’s disability or impairment can permanently and substantially reduce their functional capacity or their ability to undertake activities.
For the purposes of this document an impairment can be:
  • intellectual;
  • cognitive;
  • neurological;
  • sensory;
  • physical;
or one or more of the above to which a person’s disability is attributable.
Escalation to Hearing Oversight Committee (HOC) If a matter is within the parameters of this document, escalation to Branch Manager may occur prior to hearing. Where there is any doubt that the matter is outside the parameters of this document, the matter should be referred to HOC.
Current National Disability Insurance Agency (NDIA) policy on the subject The NDIS process is often seen as stressful and adversarial by the participants and our focus should be on resolving issues as practicably and quickly as possible. The role of the NDIA is to assist the AAT and the participant in reaching the best possible resolution for the participant by agreement. Participants are generally ineligible to receive NDIS funding if:
  • their impairment is temporary; or
 NDIA Dispute Resolution Policy
Appendix B to the Legal Services Directions 2017
Section 24 of the National Disability Insurance Scheme Act 2013

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AAT Case Management Guide

Supportable Impairments

OFFICIAL For Internal Use Only

e their impairment is treatable, whether treatment is ongoing or whether there are unexplored treatment options available to the participant.

The NDIA is also unable to fund supports which would more appropriately be funded by other mainstream service delivery systems.

List B: Conditions that

are likely to result in a permanent impairment

NDIA Posture in relation to this subject

Whether the NDIA is able to offer support funding in relation to a particular impairment will typically hinge on whether or not:

  • the impairment is, or is likely to be, permanent; and
  • whether the support needed is appropriately funded by the

National Disability Insurance Scheme Act 2013

Most impairments and health conditions are managed or remedied by the health system.

Where this is the case, a participant receives support for a particular impairment through the health system, the participant is generally eligible to receive funding from the NDIA for that same impairment. This means that supports available to a participant through the health system may mean that the impairment is not or is not likely to be permanent, or because this could represent a disruption of funding.

The primary concern of the NDIA is the participant’s wellbeing. The NDIA will rely on the available evidence and best practice when considering whether a participant is eligible to receive funding from the NDIA for a particular impairment.

The NDIS AAT will refer to evidence from health and allied health providers, expert evidence, opinion evidence and witness statements. The NDIA will also closely consider a participant’s daily support needs as a result of their impairment when considering the appropriate level of funding to provide, wherever possible.

Providing evidence of

your disability

Persons Giving Expert and Opinion Evidence Guideline | Administrative Appeals Tribunal

Other

considerations

Some participants may have an impairment which will improve over time, meaning that the participant will require progressively less disability support over time. In those circumstances, participants may be eligible to receive early intervention support funding.

Do you need early

intervention?

Sections 24, 25 and 27 of the National

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AAT Case Management Guide

Supportable Impairments

OFFICIAL For Internal Use Only

In those circumstances, the NDIA will consider:

  • whether the impairment is likely to be permanent;
  • whether early intervention supports are likely to reduce the need for future supports; and
  • whether the early intervention needed is most appropriately funded by the NDIA.

Disability Insurance Scheme Act 2013

Rule 6.9 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016

The question is not whether the impact of a participant’s impairment is significant in general terms, or whether a support is actually funded by another mainstream service delivery system.

Previous matters that may advise the NDIA position

redacted: s47F - Personal privacy

The AAT affirmed a decision of the NDIA on the basis that it was not satisfied these legislative requirements were met, on the available evidence.

Document admin 10 September 2024

Approved Director, Continuous Improvement 10 September 2024

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DOCUMENT 2

OFFICIAL For Internal Use Only

Case Management Guide

Supportable Impairments

Field Category Reference Documents
Title Supportable Impairments
Purpose This document is part of a suite of guidance documents for Case Managers to use in formulating their approach to managing individual matters before the Administrative Review Tribunal (ART).

This Guide applies nationally to the conduct of all matters within the Administrative Review Tribunal Case Management Branch. | | Scope | | A participant’s impairment and associated disability can permanently and substantially reduce their functional capacity or their ability to undertake activities.

For the purposes of this document, an impairment can be:

  • intellectual: Do you meet the disability requirements?

Does your impairment substantially reduce your functional capacity?

Do you have an extreme functional impairment or very high support needs?

  • neurological;

  • cognitive;

  • sensory;

  • physical:

  • an impairment to which a psychosocial disability is attributable.

| Section 24 of the National Disability Insurance Scheme Act 2013 Operational Guideline – Applying for the NDIS | | NDIA policy on this subject | | The ART process is often seen as stressful and adversarial by participants and prospective participants of the Scheme. The NDIA will adopt a participant-focused approach to resolving disputes before the ART, and will work directly with participants and prospective participants to provide better and earlier outcomes, where possible.

The role of the NDIA is to assist the ART in reaching the correct and preferable decision, including by assisting participants and prospective participants in reaching the best possible resolution by agreement.

Participants are generally ineligible to receive NDIS funding if:

| NDIA Dispute Resolution Policy Appendix B to the Legal Services Directions 2017 Section 24 of the National Disability Insurance Scheme Act 2013 List B: Conditions that are likely to result in a permanent impairment |

NDIA-ART CM-GDE-001-FINAL OFFICIAL Page 1 of 3

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Case Management Guide

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F01/24/25-0759

Supportable Impairments

Field Category Reference Documents
e their impairment is temporary; or
e their impairment is treatable, whether treatment is ongoing or whether there are unexplored treatment options available to the participant.
The NDIA is also unable to fund supports which would more appropriately be funded by other mainstream service delivery systems.
NDIA posture in relation to this subject Whether the NDIA is able to offer support funding in relation to a particular impairment will typically hinge on whether or not:
  • the impairment is, or is likely to be, permanent; and
  • whether the support needed is most appropriately funded by the NDIA.
 Operational Guideline — Applying for the NDIS Section 25 of the National Disability Insurance Scheme Act 2013
Where the engagement with health is aimed at curing the impairment, the NDIS would not provide supports. A person can have engagement with the health system and still require disability supports that work alongside the health system’s management of permanent impairments.
Evidence recommended to inform NDIA position in a matter before the ART The primary concern of the NDIA is the participant’s wellbeing. The NDIA will rely on the available evidence and best practice when considering whether a participant is entitled to receive funding from the NDIA for a particular impairment. The NDIA will refer to evidence from health and allied health providers, expert evidence, opinion evidence and witness statements. The NDIA will also closely consider a participant’s daily support needs as a result of their impairment when considering the appropriate level of funding to provide, wherever possible. Providing evidence of your disability Persons Giving Expert and Opinion Evidence Guideline Administrative Review Tribunal
Other considerations Some participants may have an impairment which will improve over time, meaning that the participant will require progressively less disability support over time. Do you need early intervention?

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Case Management Guide

Supportable Impairments

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Category Reference Documents
In those circumstances, participants may be eligible to receive early intervention support funding.
In those circumstances, the NDIA will consider:
  • whether the impairment is likely to be permanent;
  • whether early intervention supports are likely to reduce the need for future supports; and
  • whether the early intervention needed is an NDIS support
 Sections 24, 25 and 27 of the National Disability Insurance Scheme Act 2013
Rule 6.9 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016
Case Management Guide — Access to the NDIS

The question is not whether the impact of a participant’s impairment is significant in general terms, or whether a support is actually funded by another mainstream service delivery system. Instead, the test is whether or not the legislative requirements are met; which is to say, whether a participant’s impairment is permanent and substantially reduces their functional capacity, and whether or not support funding in relation to that impairment is most appropriately provided by the NDIA, and not another mainstream service delivery system.

The AAT affirmed a decision of the NDIA on the basis that it was not satisfied these legislative requirements were met, on the available evidence.

Allen and National Disability Insurance Agency [2018] AATA 3851

Document Control

Responsible Person Date
Document author: Continuous Improvement October 2024
Document approver: Director, Continuous Improvement 28 October 2024

NDIA-ART CM-GDE-001-FINAL

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Case Management Guide

DOCUMENT 3

Model Litigant Obligations (MLO)

Field Category Reference Documents
Title Model Litigant Obligations (MLO)
Purpose This document is part of a suite of guidance documents for Case Managers to use in formulating their approach to managing matters before the Administrative Review Tribunal (ART).
This Guide outlines the Model Litigant Obligations with which the NDIA is required to comply.		 Appendix B to the Legal Services Directions 2017
NDIA Participant Service Charter (page 9)
Section 56 of the Administrative Review Tribunal Act 2024
Scope This Guide applies nationally to the conduct of all matters within the ART Case Management Branch.
Policy statement The NDIA acts honestly and fairly in litigation by:
  • handling matters promptly;
  • making an early assessment of the prospects of success in legal proceedings, and the potential liability in claims against the Commonwealth;
  • acting consistently in the handling of claims and litigation;
  • endeavouring to avoid, prevent, and limit the scope of legal proceedings wherever possible, including by giving consideration in all cases to the alternative dispute resolution before initiating legal proceedings, and by participating in alternative dispute resolution processes where appropriate;
  • where it is not possible to avoid litigation, keeping the costs of litigation to a minimum, including by:
    • not requiring the other party to prove a matter which the Commonwealth or the NDIA knows to be true;
    • not contesting liability if the Commonwealth or the NDIA knows that the dispute is really about quantum;
 NDIA Model Litigant Guidelines
NDIA Dispute Resolution Policy

Case Management Guide

Model Litigant Obligations

Field Category Reference Documents
o not taking advantage of a person who lacks the resources to litigate a matter;
o not relying on technical defences unless the interests of the Commonwealth or the NDIA would be prejudiced by the failure to comply with a particular requirement; and
o not undertaking and pursuing appeals unless the NDIA believes that it has reasonable prospects of success, or the appeal is otherwise justified in the public interest; and
e apologising where the Commonwealth or the NDIA is aware that it (or its lawyers) has acted wrongfully or improperly.

MLO Complaints

The NDIA will make all reasonable efforts to comply with the Model Litigant Obligations and the Participant Service Charter. All allegations or concerns (from any source) that the NDIA has not met its obligations will be referred by the person that has become aware of the allegation or concern, to the NDIA MLO Team at redacted: operations of agencies.

Standard Operating Procedure: Model Litigant Obligation Complaints NDIA Model Litigant Obligations — Breaches, Themes and Learnings

The manner in which the allegation or concern will be referred will vary according to the source of the allegation or concern, as outlined below.

Internally identified

Where an NDIA staff member becomes aware of a possible MLO issue, the issue is to be reported to the NDIA MLO Team by email at redacted: operations of agencies.

Externally identified

External complaints and allegations are directed by the Feedback and Complaints area to the NDIA MLO Coordinator. If necessary, the MLO Coordinator may refer the allegation to an external party for further investigation. Lawyers with carriage, Case Managers, and their Directors may be asked to provide information to support that investigation.

Case Management Guide

Model Litigant Obligations

Reporting

The Agency is responsible for reporting all alleged or proven MLO breaches — whether identified internally or externally — to the Office of Legal Services Coordination (OLSC).

The MLO Coordinator will also report to the Senior Leadership Team (SLT) on any significant issues and emerging trends, as they arise.

Document Control

Responsible Person Date
Document author Continuous Improvement
Document approver Director, Continuous Improvement

OFFICIAL For Internal Use Only

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