In December 2023, the Australian Government proposed legislation to replace the Administrative Appeals Tribunal (AAT) with a new entity called the Administrative Review Tribunal (ART). Subsequently, in February of this year, the government introduced a transitional provision bill.
What was the role of the AAT?
The AAT was responsible for independently reviewing administrative decisions made under Commonwealth Laws. This involved decisions made by various Australian Government entities such as ministers, departments, and agencies, including those handling child support, workers' compensation, civil aviation, and customs to name a few.
With regards to the National Disability Insurance Scheme (NDIS), the AAT had the authority to review several types of decisions, including:
Determining access to the NDIS
Approving supports within a participant's plan
Making decisions regarding guardianship or parental responsibility for a child
Appointing plan nominees or correspondence nominees
However, there were limitations to the AAT's jurisdiction:
In most cases, they couldn't review decisions that the National Disability Insurance Agency (NDIA) hadn't internally reviewed. There was an exception if the NDIA hadn't made an internal decision within 90 days or another specified timeframe.
Certain decisions from the NDIA were exempt from AAT review, although these are not specified.
The AAT can’t address complaints made directly about the NDIA.
They lack the authority to change existing laws.
[Source: AAT Website]
How do your customers access the AAT review?
If your customer feels like their concerns haven't been addressed even after an internal review of a decision, especially regarding the level or type of support they've received, you can help them access the NDIS appeals program. This program connects them with a disability advocate in their State or Territory who can assist with the appeal process. While support coordinators may sometimes assist with appeals, it's generally recommended to involve an advocate due to the potential for conflicts of interest.
There has been a precedent in favour of a support coordinator taking the role of advocate, you can click the link provided.
What can we expect will change with the AAT to ART?
The main concern with the current system is that they notoriously slow, under resourced, inaccessible, unfair, and too formal. This combination in a setting where they are dealing with folk that have disabilities and sometimes live very difficult lives can be soul destroying.
There was also speculation that the Tribunal members did not earn their positions on the skill of their experience or knowledge, but were rather affiliated with political parties, which is hardly impartial.
It was likewise suggested that they were ineffective in holding their judgements up. In short, they were like a broken compass, not good for finding your way, let alone making the bigger decisions.
There have been favourable outcomes for NDIS participants, but the system could be enhanced and as we spoke about in our blog post Continuous Improvement - How it shapes your NDIS business – everyone including the AAT and the NDIS should be accountable and lead by example on how they improve their systems for people living with a disability.
The new ART Bill aims to create a more unified and effective Tribunal with flexible powers and procedures to help all applicants. Its main job is to protect community members' rights and ensure the government and public service act lawfully.
The bill promises fair treatment, meaning it will operate in a less formal way, ensuring accessibility for everyone. It will follow rules of evidence and give each party a fair hearing. The Tribunal will be empowered to resolve issues quickly and cost-effectively.
To maintain integrity, a review system will monitor its operations, and Commonwealth officials will receive relevant training. The selection process for Tribunal members will be transparent and merit-based to ensure independence and high quality. A code of conduct will be publicly available, and members failing to perform or having conduct concerns may be restricted or removed.
The Tribunal's structure will include a President, Deputy President, Senior Member, and General Member, overseeing eight jurisdictions including the NDIS.
The bill aims to streamline and improve the application process, with more details expected soon. Notably, the Tribunal may appoint a litigation supporter for individuals who may struggle to participate in proceedings, even with support.
These changes aim to support those who rely on NDIS services.
All this is encouraging and lets hope that the changes that come into effect will support the people who need it most, our NDIS customers.
We wish you well, as always
The Lama Care Team
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