NDIS: Jurisdiction to review

QQNH v National Disability Insurance Agency [2016] AATA 220 saw an application (by a mother for her child) for review by the Tribunal of the applicant’s most recent plan, as made by the Agency.

However a procedural issue arose, as to whether  necessary internal steps by the Agency had been completed, so as to give rise to a reviewable decision: [22].

The Tribunal was impliedly critical of the Agency’s “poorly worded and often ambiguous communications”, but ultimately held that a primary decision had not yet been made. Accordingly there was no decision by a reviewer under s 100 which could be reviewed by the Tribunal under s 103: [29].

At [30] comment was made:

… it is extremely unfortunate that the applicant’s mother was not better assisted and informed by the NDIA as to the decision-making and merits review process, and what part of the process was in fact occurring at which time.  It is clear that part of the reason the applicant’s mother was misled (unintentionally) is that the Agency staff she dealt with did not themselves understand the applicable merits review framework.  As this matter makes clear, the phrase “internal review” can be used to describe the process of ongoing consideration of the content of a plan before it is finalised, and escalation of certain issues to more senior staff.  However, that is not the same thing as a formal “internal” review by a reviewer of a reviewable decision pursuant to s 100 of the Act.  It is important for Agency staff to understand this distinction, and correctly explain the distinction to participants.  Clearly that did not occur in this case.




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