The Administrative Appeals Tribunal (AAT) plays a crucial role in reviewing decisions made by the National Disability Insurance Agency (NDIA) regarding the National Disability Insurance Scheme (NDIS). Understanding how the AAT makes these decisions involves delving into the legal framework and criteria that guide their assessments. This blog post explores the application of the law, specifically Section 34(1) of the National Disability Insurance Scheme Act 2013 (NDIS Act), which outlines the criteria for what constitutes reasonable and necessary supports.
Application of Law: Section 34(1) Criteria
To be considered reasonable and necessary, each support provided under the NDIS must meet the following criteria under Section 34(1):
a) Assist the Participant to Pursue Their Goals, Objectives, and Aspirations
The primary aim of the NDIS is to empower participants by helping them achieve their personal goals and aspirations. When the AAT reviews a decision, it assesses whether the proposed support will assist the participant in this regard. This includes evaluating personal development goals, educational and employment objectives, and social and recreational aspirations.
Example: If a participant’s goal is to gain employment, the AAT will consider whether funding for vocational training or assistive technology will effectively support this objective.
b) Assist Them to Undertake Activities that Facilitate Their Social and Economic Participation
The AAT ensures that supports enable participants to engage in activities that promote their social and economic participation. This involves looking at how the support will help the participant interact with their community, maintain relationships, and participate in the workforce.
Example: Funding for transport services may be considered reasonable and necessary if it enables a participant to attend community events, work, or education, thus enhancing their social and economic participation.
c) Represents Value for Money
Value for money is a critical criterion. The AAT examines whether the cost of the support is reasonable relative to the benefits it delivers. This involves a comparative assessment of alternative supports and their associated costs.
Example: If a participant requires a specific therapy, the AAT will consider the cost of this therapy against the benefits it provides and compare it with other available therapies that might offer similar benefits at a lower cost.
d) Be Effective and Beneficial, Having Regard to Current Good Practice
Supports must be both effective and beneficial, aligning with current best practices. The AAT looks at evidence-based outcomes and the professional standards related to the proposed supports.
Example: When evaluating the provision of a particular medical treatment or intervention, the AAT will review current medical guidelines and research to ensure the support is recognised as effective and beneficial.
e) Takes Account of What is Reasonable to Expect Families, Carers, Informal Networks, and Community to Provide
The NDIS is designed to complement, not replace, the support provided by families, carers, and communities. The AAT considers the level of support that can reasonably be expected from these informal networks.
Example: If a participant needs daily living assistance, the AAT will assess the extent to which family members can reasonably provide this support before determining the additional support required from the NDIS.
f) Be Most Appropriately Funded or Provided Through the NDIS and Not More Appropriately Funded or Provided Through Other General Support Services
The AAT evaluates whether the support requested is best funded by the NDIS or if it falls under the remit of other general support services, such as health or education systems.
Example: If a participant requires surgery, the AAT will determine that this is more appropriately funded by the healthcare system rather than the NDIS, whereas post-surgery rehabilitation might be considered under the NDIS.
How the AAT Applies These Criteria
When the AAT reviews a decision, it undertakes a detailed analysis of the participant’s circumstances, the evidence presented, and the criteria set out in Section 34(1). Here’s a step-by-step overview of the process:
- Review of Evidence: The AAT examines all evidence provided by the participant, NDIA, and any expert witnesses. This includes medical reports, assessments, and statements regarding the participant’s needs and goals.
- Application of Criteria: Each piece of requested support is evaluated against the Section 34(1) criteria. The AAT ensures that all aspects of the criteria are met before determining that a support is reasonable and necessary.
- Consideration of Individual Circumstances: The AAT takes into account the participant’s unique situation, including their personal goals, living arrangements, and the availability of informal supports.
- Balancing Competing Interests: The AAT balances the participant’s needs with the principles of value for money and appropriateness of funding sources. This ensures that supports are not only necessary but also financially sustainable and appropriately funded.
- Decision Making: After thorough consideration, the AAT makes a decision to affirm, vary, or set aside the NDIA’s original decision. The decision is communicated with detailed reasons, explaining how the Section 34(1) criteria have been applied.
Importance of Professional Advice
Navigating the complexities of the NDIS and AAT can be challenging. It is advisable for participants to seek professional advice from Local Area Coordinators (LACs), NDIS planners, support coordinators, or legal professionals specialising in disability services. These experts can provide guidance on how to present a strong case, ensure all relevant evidence is included, and help interpret the legal criteria.
Conclusion
The AAT’s role in reviewing NDIS decisions is guided by strict adherence to the law, particularly Section 34(1) of the NDIS Act. By understanding the criteria for reasonable and necessary supports, participants can better navigate the appeals process and advocate for the supports they need to achieve their goals. Professional advice and thorough preparation are key to successfully presenting a case to the AAT, ensuring that decisions are fair, transparent, and in the best interest of the participants.
