Only a tiny proportion of appeals that people with disability bring to the AAT are actually heard by the Tribunal – the rest are negotiated by the NDIA. The AAT’s own figures show the National Disability Insurance Agency (NDIA) is potentially using undue influence to get participants to back down or to accept lesser claims.
Why are so few cases actually heard by the AAT?
When a person with a disability asks the AAT to review a decision, they do not automatically get heard by a tribunal member. The AAT has a procedure for NDIS matters (a “practice direction”) that prescribes a consultation between the person and the National Disability Insurance Agency (NDIA). This is intended to be both less daunting for the person and more likely to get disagreements resolved quickly. In fact, in 2018/19, only 3% of NDIS cases brought to the AAT were actually resolved through a hearing.
What’s wrong with this process?
The danger is that it can be very unfair. It means that a person with disability is sitting across the table from the very agency whose decision they are challenging. The NDIA may also have their internal lawyer. The NDIA may also have external legal representation. A person with little or no knowledge of the system is faced with the experts in the system who have both an interest and the skills to persuade the person to accept a reduced claim, or even to give up. In 2018/19, over 31% of cases were withdrawn by participants, and another 1.4% of cases were affirmed by consent (the participant agreed that the decision was correct). In both situations, we don’t know how much influence was brought to bear. More importantly, we don’t know how many of those were actually wrong in law and might have been affirmed by a tribunal member if a hearing had been held.
Don’t people with disability have assistance at the AAT?
Very few people with disability have legal representation. Most cannot afford private legal help and there is certainly not enough legal aid funding for all the people who go to the AAT.
Some people with disability gain access to a disability advocate to assist with the process, but not all. While advocates certainly help, advocates are not lawyers, and may not be sufficiently qualified to counterbalance the presence of staff, internal and external lawyers that the NDIA may bring to a conference.
How many decisions may be the result of this power imbalance?
Up to 91.4% of the decisions taken in the 2018/19 period may not be entirely fair. The AAT has presented figures for their cases for 2017/18 and 2018/19:
But here’s another way of looking at those numbers. In every case where a decision is the result of a person with disability sitting across the table from the agency with heavy hitters, there is potential for undue influence. Even in those cases where the decision has been varied by consent there is potential for undue disadvantage to the person with disability – while they are presumably better off because of the decision, we don’t know how what more favourable decision they might have got from a tribunal hearing.
Only 2.4% of cases are actually heard by a tribunal member. Half are affirmed, half are not. 91.5% of cases are not heard, and may be producing unfair results because of the approach.
The Administrative Appeals Tribunal has clear objectives. The Administrative Appeals Act says:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
a) is accessible; and
b) is fair, just, economical, informal and quick; and
c) is proportionate to the importance and complexity of the matter; and
d) promotes public trust and confidence in the decision‑making of the Tribunal.
It is not clear that the NDIS Appeals process is at all fair or just when over 90% of the cases may be subject to undue influence by the NDIA – the very body whose actions are being questioned in the AAT.
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