If you have appealed an NDIS decision to the AAT, do you still have a plan review?
Can assistive technology be added to your plan?
What if things change and you need a change of circumstances review?
Complicated legal words
Before we get into the details, there is a legal concept that is important here. “Functus officio” is a fancy latin phrase for a simple concept. Basically it means the job is done.
In this case it means that when the NDIA made the internal review decision, their job was done, and that is that. They can’t go back and change it.
The only way to look at it again is if the participant appeals to the AAT.
The bit where that gets complicated is when the AAT hasn’t finished the appeal, but either:
- Something changes for the participant; or
- The annual plan review is due.
The NDIA’s job is done, and the AAT need to do their job. But the NDIA now have another job to do, and that job could impact the job the AAT has been asked to do.
Where it is simple
Let’s say your appeal is about a wheelchair. You can’t ask the NDIA to make a different decision about a wheelchair, ask for a different wheelchair, or include the wheelchair in your plan review.
That is quite simple – a decision about a wheelchair is the job of the AAT now, and the NDIA can’t do it.
It is less simple if you’re talking about something else. Can the NDIA consider extra core supports if your situation changes and you need more supports? Can they approve other equipment that is recommended in the meantime? Can they do the annual review?
The law doesn’t answer these questions.
Where it is more complicated
There is another question related to this one.
What can the AAT consider in an appeal?
Let’s say your appeal is about a wheelchair. It is clear the AAT can consider the wheelchair issue.
Meanwhile your situation changes, and you need more core supports. Can the AAT consider this?
The NDIA hasn’t made a decision on your changed circumstances and the extra core supports.
So if they haven’t done their “job” of making a decision, then the AAT can’t consider it. (That’s basically what the AAT said in QDKH)
That’s one way of looking at it, but not the only way.
The NDIA has the “job” of deciding what are the reasonable and necessary supports in the circumstances, not just deciding about the wheelchair. If the NDIA could have considered the extra core supports when they made the original decision, the AAT can consider it. (That’s basically what the AAT said in VXVL and YLLJ)
So if you had talked about extra core supports at plan review, and that your situation was going to change, which would mean you need more core supports, the AAT could consider them.
So whose job is it?
The short answer is it’s not clear.
The longer answer is that because it’s not clear, different approaches have been taken, and so there is not a lot of consistency. We have summarised the different situations below.
The other question is how the process is actually working. We discuss that at the end.
Change of circumstances
(Also known as a COC or s 48)
This could include things like:
- A therapist made a new recommendation, and you want to ask for that to be funded in your plan
- You have changed your living arrangements and need different supports
- COVID lockdowns stopped you attending group activities and you need funding for 1:1
In this case the NDIA hasn’t made a decision, so it’s clearly not the job of the AAT to consider an appeal. But the process of review has the potential to impact things that are being appealed at the AAT, especially when you’re talking about core supports.
Scheduled plan review
Plans have an end date, and if the end date is coming up, then the plan needs to be reviewed or the participant will not have access to supports.
This is the job of the NDIA, but it can also impact things that are being appealed at the AAT.
How does the process work?
When a person has an appeal at the AAT, they may be able to negotiate an agreed outcome with the NDIA. That means the AAT doesn’t get asked to make a decision about what the right answer is.
The agreement is written down and the AAT is then asked for a “remittal”.
That means the AAT agrees to let the NDIA make the decision that was agreed, and they send it back to them to do that. (You might hear this being called a section 42D or section 42C remittal)
That same process is often used to make other decisions along the way. If a plan is about to end, or if something has changed, the AAT can agree to send that issue to the NDIA to make a decision about.
In our experience, this is used to make a new pro rata plan, or a short term plan, to extend the funding for some time while the AAT does their job.
This can also happen when some of the supports that have been appealed to the AAT have been agreed on, but some haven’t. The AAT sends the decision about those supports back to the NDIA to make a new plan including those supports, and the AAT still has the job of handling the decision about the supports that haven’t been agreed.
If you have an appeal at the AAT and your plan is about to end, or something has changed and needs to be sorted out urgently, you can talk to the NDIA’s representative about how an agreement can be made to ask the AAT to send this decision to the NDIA to make.