Further clarification about pathways for review of decisions involving Statements of Participant Support (SoPS) - LQTF and NDIA

Key Points

• The Tribunal's decision in LQTF and NDIA [opens in new window] provides a useful breakdown of the different ways in which a review of a SoPS can happen. 
• The Tribunal makes clear that a person can seek review of a decision of the NDIA to not conduct an unscheduled review of a plan, and then apply to the Tribunal if the NDIA affirms the decision to not review. However, in such a case the Tribunal can only decide whether or not the plan should be reviewed; it cannot decide anything about the substance of the plan.
• It is much more straightforward for applicants to seek internal review of a decision to approve a SoPS made pursuant to s 33 of the Act [opens in new window] than to seek an unscheduled review pursuant to s 48 of the Act [opens in new window], because it avoids the hurdle of the NDIA deciding whether or not to review the plan. 
• Applicants should be clear about the fact that they are seeking internal review of a s 33 decision, rather than a s 48 unscheduled review. They can make this clear by referring to s 33 in their correspondence with the NDIA, and by applying ASAP after being notified of the approved plan.

The Decision

The facts of this decision are complex and I won't go into them in any detail in this post. In a nutshell, the applicant was unhappy about the fact that his SoPS did not provide for 1:1 care, or for a placement in supported accommodation. The applicant sought review of the NDIA's decisions not to provide for 1:1 care, or for a placement in supported accommodation in his SoPS.

The usefulness of this decision lies in the good analysis by Deputy President Forgie of the various pathways for review of decisions made by the NDIA in relation to SoPS.

At [20] the Tribunal explained that there are 4 pathways in s 48 of the Act [opens in new window] for review of a plan:

1. In the circumstances mandated by the NDIS Rules. (I could not identify any NDIS Rules that require a review to take place.) Reviews under this pathway are mandatory.
2. If the plan itself requires a review. Reviews under this pathway are mandatory.
3. At the CEO's initiative. This is discretionary - a CEO does not have to decide to carry out a review.
4. At the request of the participant. This is discretionary - a participant can request a review at any time, but the CEO does not have to carry out a review. 

A key point of the decision in LQTF is that there is a difference between applying for a review of a decision to approve a SoPS under s 33 of the Act [opens in new window], and applying for a review of a plan pursuant to s 48 [opens in new window] (referred to as an 'unscheduled review'). The difference is that if the application is made pursuant to s 33, then the plan will go straight to internal review, and from there on to the Tribunal if the person is still unhappy. If the application is made pursuant to s 48, then the NDIA first has to go through the process of deciding whether to review the plan.

If the NDIA decides to not review a plan:

As the Tribunal explains at [25] of the decision, a decision by the CEO to not review a plan is not equal to a decision to approve the same SoPS. If the CEO fails to review a plan within 14 days of the request being made, this is deemed to be a decision to not review the plan, but again this is not equal to a decision to approve the same SoPS.

If a person is unhappy at a decision or deemed decision to not review their plan, they can seek internal review of that decision. As [31] of the decision makes clear, the internal reviewer can only decide whether or not to review the plan; they cannot vary or affirm the plan. 

If the internal review confirms the decision to not review the plan, then the person can seek review of that decision at the Tribunal. However, the Tribunal can only decide whether or not the plan should be reviewed. They cannot decide anything about the substance of the plan even if it decides that the plan should be reviewed. If the Tribunal decides the plan should be reviewed, then it will go back to the NDIA for review. 

If the Tribunal decides that the plan should be reviewed, then it will go back to the NDIA for review (see the next section).

If the NDIA decides to review a plan:

If the NDIA decides to review the plan, the review should be carried out 'as soon as practicable'. At [39] the Deputy President reaffirmed her decision in KRBG (see my previous blog post here [opens in new window]). This has the consequence that an applicant cannot apply to the Tribunal until the NDIA completes its internal review of the plan. The Deputy President acknowledged the frustration that this causes NDIS applicants.

If the NDIA decides to affirm a plan, or vary the plan in a way that the applicant is still unhappy with, then the person can seek internal review. Once the internal review is complete, if the person is still unhappy they can apply to the Tribunal, and the Tribunal will be able to affirm, vary or replace the plan as it sees fit.

Conclusion

The decision is a useful and relatively clear explanation of the different reviews that can be done in relation to decisions involving SoPS. The key point for NDIS participants and their supporters is this: It is better to avoid the 's 48 pathway', because then the applicant does not need to satisfy the NDIA that the plan should be reviewed. Instead, the 's 33 pathway' should be utilised if it is available. A participant can do two things to make this happen. 

1. Be clear about the pathway you are using. In writing to the NDIA, state e.g. "I am applying for internal review of the decision pursuant to s 33 of the Act to approve a SoPS dated [date]..." Part of the confusion that arose in LQTF was that the NDIA treated the applicant's requests for review as having been made pursuant to the 's 48 pathway' - see [52] of the decision.
2. Apply for internal review ASAP after receiving notification of the plan. An applicant only has 3 months after notification of the approved plan to apply for internal review - see s 100 of the Act [opens in new window]. Also, NDIA internal guidance [opens in new window] shows that they are more likely to treat an application to review a plan as having been made pursuant to s 33 if it is made immediately after notification of the approved plan.