NDIS ART Appeals: What Happens When You Challenge an NDIS Decision?

Receiving an NDIS decision that you believe is wrong can be incredibly frustrating. You may have provided reports, assessments and evidence, only to receive a plan that does not appear to reflect your actual disability-related needs.

For some participants, the next step may be to challenge the decision through the Administrative Review Tribunal (ART).

The ART is the independent body that can review certain decisions made by the National Disability Insurance Agency (NDIA). It was previously known as the Administrative Appeals Tribunal (AAT).

But what does an ART application actually involve?

Is it a court case? Do you need a lawyer? Will you have to attend a hearing? What happens to your NDIS funding while the matter is being considered?

This blog explains the process in plain English.

What is an NDIS ART appeal?

The ART provides an external review of certain NDIS decisions.

Before you can generally go to the ART, you must first ask the NDIA to conduct an internal review of the decision.

The internal review is the first opportunity for the NDIA to reconsider its decision.

If you remain unhappy with the outcome of the internal review, you can then apply to the ART for an external review.

The ART is independent of the NDIA. Its role is to review the decision and determine what the correct decision should be based on the relevant law, facts and evidence.

 What NDIS decisions can be challenged?

There are a number of NDIS decisions that may be reviewable.

Common examples include decisions about:

- NDIS eligibility

- whether a person remains eligible for the NDIS

- supports included or excluded from an NDIS plan

- changes to an NDIS plan

- refusal to conduct a plan reassessment

- refusal to vary a plan

- certain decisions relating to nominees and representatives.

Not every NDIA decision is reviewable, so it is important to check whether the particular decision can be challenged.

 Step 1: Understand the original NDIS decision

Before starting an appeal, participants should carefully read the decision they have received.

Ask: What exactly has the NDIA decided?

For example:

- Has funding been reduced?

- Has a particular support been removed?

- Has a request for additional funding been refused?

- Has the NDIA decided that a support is not reasonable and necessary?

- Has eligibility been refused?

- Has a plan variation or reassessment been refused?

It is important to identify the specific decision being challenged rather than simply stating that the participant is unhappy with their plan.

The stronger approach is to identify the decision, explain why it is considered incorrect and identify the evidence supporting the participant's position.

Step 2: Request an internal review

The first formal step is generally an internal review by the NDIA.

Participants have three months from the date they receive the original decision in writing to request an internal review.

If you lack clarity as to why the decision was declined you can request further information from the NDIS under the Freedom of Information Act 1982 (Cth) by contacting the NDIS Commission’s FOI team via email, post, or phone.

When applying for a review the participant should explain:

- what decision they are asking the NDIA to review

- what they believe the decision should have been

- why they believe the decision is incorrect

- what evidence supports their position

- whether previously provided evidence should be reconsidered

- whether they have new evidence.

https://www.ndis.gov.au/participants/changing-your-plan/decision-reviews/guide-decision-reviews

Evidence may include reports from treating professionals, functional assessments, medical information, support documentation and information demonstrating how the participant's disability affects their everyday life.

The NDIA aims to complete internal reviews within 60 days, although the circumstances of individual matters can vary.

Step 3: Receive the internal review decision

The NDIA will provide the participant with the outcome of the internal review.

There are several possible outcomes.

The decision may:

-          Stay the same: The NDIA may decide that the original decision was correct.

-          Change partially: The NDIA may agree with some aspects of the request but not others.

-          Change completely:  The NDIA may accept the participant's request and change the decision.

If the participant still disagrees with the internal review outcome, they may be able to apply to the ART.

 Step 4: Applying to the ART

The ART application is the next stage.

For NDIS matters, there is no application fee for a participant applying to review an NDIA decision.

The ART has an online application process specifically for NDIS decisions.

Generally, participants should apply within 28 days after the internal review decision.

The ART may have discretion to allow additional time in some circumstances, but participants should not assume that an extension will automatically be granted.

Don't wait until the last minute

If you believe you need an ART review, it is important to pay attention to the deadline.

You do not necessarily need to have every piece of evidence completed before lodging the application.

The important thing is to make sure the application is lodged appropriately and within the required timeframe.

Additional information and evidence can generally be provided as the review progresses.

What happens after the ART application is lodged?

This is where many participants become overwhelmed.

An ART application does not necessarily mean you immediately go to a tribunal hearing.

There are a number of steps that can occur before a final hearing.

Once the ART receives the application, it checks the information provided and notifies the NDIA.

The NDIA will provide relevant documents from its case file to the ART and the participant. The ART states that these documents are usually provided within 28 days.

This can be a significant moment for participants because they may receive a large amount of information about their NDIS history.

 The NDIA's evidence and documents

Participants may receive a substantial bundle of documents.

This can include information relating to:

- previous NDIS applications

- assessments

- plan decisions

- internal reviews

- correspondence

- reports

- previous evidence

- information considered by the NDIA.

It is important to read these documents carefully.

Sometimes the information contained in the NDIA's records may be incomplete, outdated or may not accurately reflect the participant's current circumstances.

If something is incorrect or important information has been overlooked, this should be identified and addressed through the review process.

What happens at an ART case conference?

A case conference is  a meeting between the ART representative, NDIS Representative and the Participant/Nominee and their representatives. It is most commonly held over a phone call.

It can provide an opportunity for the participant and the NDIA to discuss:

- what issues remain disputed

- what evidence is available

- whether further evidence is required

- whether assessments may be needed

- whether an agreement can be reached

- what the next steps should be.

The aim may be to resolve some or all of the dispute without proceeding all the way to a final hearing.

The ART explains that it uses informal processes such as conferences, conciliations and mediations in many types of cases to help parties reach an agreement.

Don't be surprised if more evidence is requested

One of the most important things for participants to understand is that an ART matter can involve additional evidence.

The Tribunal or NDIA may seek further information to help determine the dispute.

Depending on the issue, this may include:

- updated functional assessments

- occupational therapy reports

- psychology or psychiatry reports

- medical evidence

- speech pathology reports

- physiotherapy reports

- behaviour support information

- evidence from support workers

- information about daily functioning

- evidence about risks and the consequences of not receiving the requested support.

This information may need to be provided by the existing support and allied health team, or the NDIS may request and independent assessment:

In person – assessment conducted with the participant

Desktop – qualified professional assessed the reports/information already submitted

The important question is not simply:

"What diagnosis does the participant have?"

The focus needs to be on how the person's disability affects their functioning and why the particular support being requested is relevant to their disability-related needs.

What happens to the participant's NDIS supports while the ART matter is happening?

This is an important concern for many participants.

The NDIS states that participants can continue using the supports described in their existing plan while the Tribunal process is underway.

However, participants should not assume that lodging an ART application automatically gives them access to every support they are seeking.

The existing plan and the disputed decision need to be considered carefully.

If there is an immediate risk to a person's safety, housing, health, independence or ability to remain in their current circumstances, this should be clearly communicated and supported with evidence.

Do you need a lawyer?

No.

Participants can represent themselves at the ART.

However, they can also seek assistance from:

 - a lawyer

- a disability advocate

- a family member

- a trusted person

- another appropriate representative.

The ART specifically recognises that participants may need assistance to fully participate in the review process.

The NDIS Appeals Program may also provide assistance to people seeking review of an NDIS decision.

You can find a few support options here: https://www.health.gov.au/our-work/ndis-appeals-program?language=en

Can a Support Coordinator represent you?

This is an important distinction.

A Support Coordinator can assist a participant with understanding and coordinating their supports, but NDIS funding cannot be used to pay a Support Coordinator or other provider to represent the participant as their legal representative at the Tribunal.

The NDIS explains that NDIS funding cannot be used to pay for someone to represent a participant at the Tribunal, including a lawyer, Support Coordinator or other provider.

A Support Coordinator may still have an important role in helping the participant coordinate their broader support team and obtain relevant information, subject to the participant's circumstances, service agreement and appropriate professional boundaries.

Where a provider has a financial interest in the outcome, the ART notes that they may be able to provide a report as an expert witness, rather than acting as the participant's representative.

What if the participant needs accessibility support?

Participants have the right to participate in the process in a way that accommodates their disability-related needs.

This may include requesting appropriate adjustments such as:

- interpreters

- captioning

- communication assistance

- accessibility arrangements

- assistance accessing Tribunal premises.

The ART states that it aims to ensure people can fully participate in the review process.

Participants should communicate their needs early rather than waiting until a hearing or case event.

What happens if the matter goes to a hearing?

A hearing is more formal than a case conference, although it is still designed to be accessible.

The Tribunal member will generally explain what will happen.

Depending on the circumstances:

- the participant or their representative will present their case

- the NDIA's representative may respond

- evidence may be discussed

- witnesses may give evidence

- questions may be asked

- the Tribunal member may ask questions

- the parties may explain what outcome they are seeking.

The ART explains that witnesses may be questioned by the parties and the Tribunal member.

The hearing can occur by telephone, video or in person depending on the circumstances.

What evidence makes an NDIS ART case stronger?

There is no single report that guarantees success.

Strong evidence usually connects the dots between:

Disability → functional impact → support need → proposed support → expected outcome.

For example:  

Rather than simply saying:

"The participant needs 1:1 support."

Evidence should explain:

- what the participant cannot safely or independently do

- why their disability causes these difficulties

- what happens without support

- the frequency of the support required

- why the level of support requested is appropriate

- what alternatives have been considered

- what risks exist without the support

- how the support assists the participant to achieve greater independence, participation or safety.

This functional connection is often much more useful than simply providing a list of diagnoses.

A participant's story matters too

Professional reports are important, but participants should not underestimate the importance of explaining their own experience.

A participant can provide information about:

- what daily life actually looks like

- what happens on difficult days

- what happens when supports are unavailable

- the impact on family members and informal supports

- previous attempts to manage without the requested support

- changes in functioning

- risks

- goals

- what independence means to them.

The evidence should tell a coherent story.

The Tribunal needs to understand not just what support is being requested, but why it matters to this particular person.

What if the NDIA offers a settlement?

A matter may be resolved before a final hearing.

The participant may receive a proposal from the NDIA to resolve some or all of the disputed issues.

This is an important decision.

Participants should carefully consider:

- what is being offered

- what issues remain unresolved

- whether the proposed supports are sufficient

- whether there are conditions attached

- whether accepting the proposal means withdrawing other parts of the application.

Where legal advice is available, it can be particularly valuable when considering a settlement.

What if there is no agreement?

If the matter cannot be resolved, it may proceed toward a final hearing.

Ultimately, the Tribunal will consider the evidence and relevant legislation before making its decision.

The outcome may depend heavily on:

- the specific decision under review

- the evidence

- the participant's circumstances

- the applicable NDIS legislation and rules

- whether the requested support meets the relevant legal requirements.

Not every ART matter will result in the participant receiving everything they requested.

The ART process can be emotionally exhausting

It is important to acknowledge this.

For many participants, an ART application is not simply an administrative process.

It can involve:

- uncertainty

- lengthy correspondence

- large amounts of paperwork

- repeated requests for evidence

- assessments

- meetings

- deadlines

- discussions about highly personal circumstances

For people who already experience difficulties with executive functioning, communication, anxiety, fatigue or information processing, the process can be particularly demanding.

This is why having an appropriate support network around the participant can be valuable.

How can participants prepare?

If you are considering an ART application, start by creating a clear evidence folder.

1. Keep the original NDIS decision

Save the decision letter and any accompanying documents.

2. Keep the internal review decision

This is particularly important because it explains the NDIA's position after reconsideration.

3. Create a timeline

Record:

- original application

- previous plans

- changes in circumstances

- reports

- requests for reassessment

- decisions

- internal review

- ART application

- important correspondence.

4. Identify the exact issues

Write down:

What am I asking the Tribunal to review?

Then separate each disputed support or decision.

5. Gather evidence

Collect relevant reports and information that directly address the disputed issues.

6. Keep evidence current

If circumstances have changed, make sure the Tribunal has current information.

7. Keep copies of everything

Create one central folder for:

- correspondence

- reports

- evidence

- Tribunal directions

- appointment dates

- submissions

- decisions.

8. Ask for help if needed

Participants do not have to navigate the process alone.

The NDIS Appeals Program, disability advocates and legal services may be able to assist depending on the participant's circumstances.

A simple way to think about the ART process

For participants, the process can be simplified into:

NDIS decision

↓

Request internal review

↓

Internal review decision

↓

Still disagree?

↓

Apply to ART

↓

ART acknowledges application

↓

NDIA provides relevant documents

↓

Case management / case events

↓

Additional evidence and assessments if required

↓

Negotiation or resolution may occur

↓

If unresolved → hearing

↓

Tribunal decision

The exact pathway can vary between cases, so participants should follow the directions and deadlines issued by the ART.

Don't confuse advocacy with representation

Another important distinction is between supporting a participant and representing a participant.

A participant may have several people around them, including:

- Support Coordinator

- occupational therapist

- psychologist

- support worker

- family member

- advocate

- lawyer.

Each person can have a different role.

A Support Coordinator may help coordinate evidence and services.

An OT may provide functional evidence.

A psychologist may provide evidence about functional impacts.

A support worker may provide information about day-to-day support requirements.

An advocate may help the participant communicate their position.

A lawyer may provide legal advice and representation.

Clear roles are important because an ART matter can become complicated quickly.

The most important thing to remember

An ART application is not simply an opportunity to say that an NDIS decision is unfair.

The strongest approach is to clearly demonstrate:

What decision was made → why it is incorrect → what the participant's actual circumstances are → what evidence supports this → what decision the participant is asking for instead.

The process can feel intimidating, but participants have rights throughout the review process and can seek assistance.

Most importantly, don't wait until the hearing to start preparing.

Good preparation begins from the moment you receive the original NDIS decision.

Need help navigating an NDIS review?

If you are an NDIS participant considering an internal review or ART application, consider getting independent advice about your individual circumstances.

The Administrative Review Tribunal provides information about the review process, representation and accessibility support, while the NDIS provides information about decision reviews and the NDIS Appeals Program.

This blog is general information only and is not legal advice. NDIS and ART processes can change, and participants should check the current requirements and deadlines that apply to their individual matter.

Good luck!