NDIS Appeals: Internal Review

Written by:
Angela Cox

Angela Cox

Principal Lawyer

In this article:

What is internal review?

Internal review is a process whereby someone in the National Disability Insurance Agency (NDIA) with appropriate delegated authority, and who was not involved in the making the original decision, ‘reviews’ the plan decision on its merits: section 100(5), the NDIS Act 2013 (Cth) (NDIS Act).

That is, the internal reviewer examines the information and evidence provided by the participant and forms their own view as to whether it meets the relevant legislative criteria and any operational policy guidelines. 

Am I eligible to apply for internal review?

To be eligible to apply for internal review, the decision must be a ‘reviewable decision’ as specified in the big table in section 99(1) of the NDIS Act. 

The following two types of decisions – the ones that in practice give people with disability and their families the most grief! – are reviewable decisions:

  1. Access – ‘A decision that a person does not meet the access criteria’ (Item 1, table); and
  2. Plan funding – ‘A decision not to approve the statement of participant supports in a participant’s plan’ (Item 4, table).

In the case of access and plan decisions, the prospective participant or participant (as the case may be), their parent or primary carer is a person directly affected by the decision and would satisfy this criteria.

Note, if you are a plan nominee, you are eligible to appeal the NDIS plan decision on the participant’s behalf pursuant to section 78(2), NDIS Act.

How long do I have to ask for internal review?

You must ask for internal review within three (3) months after receiving your plan: section 100(2), NDIS Act. 

How do I ask for internal review?

You can make a request to the NDIA for internal review orally or in writing: section 100(3), NDIS Act.

In practice, this means you can request internal review in the following ways:

  • Telephone or email your Local Area Coordinator/Partner in the Community (LAC) contact or the NDIA and ask, in your own words, for an internal review of the decision. Briefly explain why you disagree with the plan decision. I recommend that you also get a receipt number for the call, in case you need evidence of the conversation later on in the appeals process.
  • Complete the internal review request form on the NDIA’s website, and email the completed form to your LAC or the NDIA. The advantages of completing the form is that it helps you to articulate and structure your request, and the completed and lodged form becomes clear evidence that you made the request on a certain date. 

Can I submit further evidence for my internal review?

Strictly speaking, the internal reviewer’s job is to review the original decision, and the evidence (such as medical and provider reports) that were available at the time of the original decision. 

However, in practice, the NDIA is usually open to receiving, and considering as part of the internal review process, any new and additional evidence that may clarify your (or your family member’s) support needs. This may be a functional assessment or other medical report obtained after the initial plan meeting or decision. 

I strongly recommend that you provide further evidence to the NDIA as soon as possible, or at least tell the NDIA that you intend to submit further evidence for the purposes of the internal review. This will reduce the risk of the internal review decision being made before you have had a chance to provide further relevant evidence.

How long will my internal review take?

The NDIA should take no more than 90 days to finalise your internal review. This is the timeframe the NDIA has committed as part of its ‘Participant Service Guarantee’ (the PSG), which commenced from 1 July 2020.

Until the PSG is legislated (and at the time of publication, the proposed amendments, namely the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021, were still being considered by the Australian Parliament), it forms part of the NDIA’s operational policy framework only.

That is to say, currently, the NDIA is not legally bound to honour the 90-day time frame. It’s legal obligation is to complete the internal review ‘as soon as practicable’: section 100(6), NDIS Act. Yes, I am sorry to say this wishy-washy legal language may well allow the NDIA to get away with taking longer than 90 days to complete your internal review!

What if my internal review takes longer than 90 days?

If the NDIA takes longer than 90 days to finalise your internal review, then I recommend making a complaint to the NDIA, politely explaining that they are in breach of their advertised PSG timeframe, and how the delay is affecting your daily life.  

I know that most readers are understandably very tired of writing complaints to bureaucracies, but the NDIA online complaints form is relatively quick to complete. In my experience, the lodgement of a well-founded complaint often triggers a quick response from the NDIA.

What happens to my plan while I am waiting for my internal review decision?

If you have sought internal review of a plan decision, this does not affect the operation of the plan while the review is pending. That is, it you can and should continue to implement the plan while you are waiting for a decision on the internal review: section 100(7), NDIS Act.

What if I change my mind about the internal review?

If after asking for an internal review, you decide for any reason that you do not wish to proceed with the process, you can stop the process by simply asking your LAC or the NDIA in writing (email or letter) or by telephone to withdraw your request for internal review.

What decisions can the internal reviewer make?

Under section 100(6), NDIS Act, on completing their review, the NDIA internal reviewer may decide to:

  • confirm the original decision;
  • vary the original decision (For example, re a plan decision, increase funding of a particular support or support category, or add a new support that you asked to be funded); or
  • set aside or cancel the original decision, and make in its place a brand new decision. 

The NDIA will send you a letter setting out the internal review decisions and reasons. 

For plan decisions, if the decision is to confirm your original plan, that plan simply remains on foot. You do not need to do anything.

However, if the decision is to vary or substitute the original plan, effectively creating a new plan, then you must start the plan implementation process afresh.

What if I don’t agree with the internal review decision?

If you are not satisfied with the internal review decision, you can ‘appeal’ the decision to the Administrative Appeals Tribunal. This process is called ‘external review’ and is explained in more detail here.

How Special Voices can help you with internal review?

Special Voices can assist by representing you in the internal review process, or by providing you with professional and personalised advice on your situation, to support you to self-advocate to achieve the fairest and best outcome.

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DISCLAIMER: The information provided in this article is general only. While it may provide guidance on a issue or matter that you may have, it should not be relied on as legal advice. We recommend that you obtain legal advice specific to your issue or matter.

© A. Cox 2021 All rights reserved. This article is copyright. Apart from any fair dealing for the purpose of private study, research or as permitted under the Copyright Act 1968 (Cth), no part of this article may be reproduced or copied in any form or by any means without prior permission from the author.