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How to navigate the NDIS Appeals process for participants

Discussions about the status and future of the National Disability Insurance Scheme (NDIS) were prevalent in the lead up to the recent election, particularly in light of a reported increase in appeals against NDIS decisions by an estimated 400% between July 2021 and January 2022 (source: ABC news 19 April 2022).

Of the 4.4 million people in Australia with a disability, approximately 500,000 are NDIS participants, and after five years of the rolled-out plan, many participants have now experienced at least one review of their plan.   In recent plan reviews, some participants found their funding levels significantly reduced without clear explanation, prompting appeals which have ended up in the Administrative Appeals Tribunal (AAT).

The NDIS appeals process begins with an internal review of the decision.  If the decision is upheld (at least to an extent that is still unacceptable for the participant), the AAT is the Tribunal with jurisdiction to determine whether to uphold the original decision or amend the decision.

Participants may find this process overwhelming as, although it is designed for individuals to be able to represent themselves, the National Disability Insurance Agency (NDIA) (the statutory agency that implements the NDIS) will have legal representation - often hiring some of the most experienced (and expensive) lawyers in the country to assist in each appeal. This generally means that a self represented participant is confronted with a 'David and Goliath' situation.

The AAT process generally starts with an initial hearing which may be directed to a conciliation conference (or mediation) to give the participant and the NDIA an initial opportunity to reach agreement.  Sometimes this is successful, and the NDIA will make an offer to the participant that is acceptable for their needs.

However, where agreement cannot be reached, there are a number of steps required of both parties in preparation for and leading up to a final hearing where the matter is determined by a Tribunal Member.

The primary role of lawyers assisting a participant at this stage of the proceedings is to assist with the preparation of the Statement of Issue Facts and Contentions, a critical document which outlines the basis for, and strength of, the claim.  There may also be witnesses to identify and obtain witness statements from and the preparation of responding material to that submitted by the NDIA. In some instances, as a result of the current backlogs at the AAT, lawyers may also be required to prepare written closing statements and responses to lodge with the Tribunal before the matter is decided by the Member.

There is no doubt that it can be an overwhelming process, and many questions may arise.

Burke & Associates NDIS Appeals service

At Burke & Associates Lawyers, we have extensive knowledge and experience in representing participants at the Administrative Appeals Tribunal in appealing an NDIS decision. We are often engaged by participants in circumstances where the discrepancy between the required supports and approved funds is significant, in one such recent matter it was more than $100,000 per annum.  We understand what is involved and can support you every step of the way.

If you would like to discuss further or find out how we may be able to assist you, please contact Rohani Bixler, Special Counsel on rbixler@burkelawyers.com.au or  contact our office on +61 3 9822 8588.

Insights by Rohani Bixler

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Rohani Bixler

Special Counsel

Rohani Bixler

Special Counsel
LL.B (Hons) BA (PSYCH)
Rohani holds a Bachelor of Arts (Psychology) and a Bachelor of Laws (Honours) from Monash University, and has practiced exclusively in the areas of estate planning, deceased estate administration and estate litigation and disputes since...

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