This Fact Sheet is about your rights as a person using the NDIS or as a person who wants to use the NDIS. If you want more information about how the NDIS works, including on issues covered in this Fact Sheet, go to Advokit.
AAT: The Administrative Appeals Tribunal. This is a panel of people who can decide whether or not the NDIA should change a decision you are unhappy with.
The Agency: Another name for the National Disability Insurance Agency. They deliver and administer the NDIS.
Complaints mechanism: A technical term to describe the steps you can go through when you are not happy with some aspect of the service and support you are getting from the NDIS.
Hearing: A formal meeting where the Administrative Appeals Tribunal listens to why you want the NDIA to change some of their decisions about your participant plan. The Administrative Appeals Tribunal will then decide whether or not the decision should be changed.
NDIA: The National Disability Insurance Agency. They deliver and administer the NDIS.
NDIS: The National Disability Insurance Scheme. This is the name of the overall program set up to organise your supports and services.
NDIS Act: The National Disability Insurance Scheme Act. Sometimes it is just called ‘the Act’, or ‘the legislation’. It is the legislation that outlines how the National Disability Insurance Scheme will work.
Necessary and reasonable supports: This is the term used in the NDIS Act to describe the extent of support you are entitled to receive. It means that the support you get must not exceed what you require, and it must be support that is reasonable. There can sometimes be a lot of debate about what this will mean for a particular person.
Participant: A person with a disability who is getting support through the NDIS.
Participant plan: This sets out the sort of supports a participant will get through the NDIS.
Rules: The NDIS Rules provide details about how the NDIS is to operate. The NDIS Act says what sorts of issues the Rules should address. The Rules are then used alongside the NDIS Act.
Scheme: A short way of saying ‘the National Disability Insurance Scheme.
Throughout the process of dealing with the NDIS, you will need frequent access to information. Some of this will be provided for you by the Agency and some you will want to seek out yourself. This Information Sheet is about your rights in relation to access to information.
The importance of advocacy:
The information on this sheet is only basic information. Working out how to apply it to your circumstances can be complex, because everyone’s situation is different.
It is important to obtain further information and advice from an advocate if you find yourself in a position of needing to make a complaint or pursue your rights on anything covered by this Fact Sheet.
1. What the NDIS says about access to information
Section 15(2) of the NDIS Act says that the National Disability Insurance Agency “must use its best endeavours to provide timely and accurate information to people with disability and other people in order to assist them in making informed decisions about matters relevant to the National Disability Insurance Scheme”.
2. Information and your rights
The NDIS Act recognises that information is important to being able to make decisions and exercise control over your life and over the support you get. You are entitled to expect information to be accessible and easy to understand. It should be provided to you in plenty of time for you to read it and digest it before you have to start making decisions based on it.
Here are some important rights issues to keep in mind in relation to your access to information.
a. The NDIS Act
The Principles of the NDIS Act stress the importance of you having control and choice over the supports you receive, and over your life in general.
In order to be able to realise those Principles, some of the implications for your access to information will include:
- Knowing ahead of time what the various NDIS assessment processes will involve, and what you will be expected to demonstrate, so that you have enough time to prepare;
- Knowing what sorts of services and supports are, or could be, available to enable a person in your situation to meet their personal goals and aspirations and to participate socially and economically in community life;
- Knowing what your rights are if there are disputes about decisions made by the Agency;
- Knowing who to talk to if you need something clarified, and how to contact them.
It may be useful for you to ask for this information at the very beginning of your contact with the Agency. You do not want to be in a position where important information is provided at the last minute, such as when you are about to go into an important meeting about the support you will receive (your Participant Plan), without having time to digest it properly.
Remember – the main test of whether the Agency is meeting its obligations to provide you with the information you need when you need it is whether or not it is sufficient to enable you to make informed decisions about matters relevant to the NDIS. If you need more information, or you need it earlier, then the Agency has an obligation under the Act to use its best endeavours to provide it to you.
You may need to ask for meetings to be postponed while you wait for this information to be provided.
b. Human rights legislation and instruments
Article 9 of the UN Convention on the Rights of Persons with Disabilities stresses your right to information in accessible formats.
This means that if the Agency provides you with information in a format that you are unable to understand, then you can ask for it to be provided to you in a different format. If the Agency says that it does not have it available in a format that is accessible for you, then you can ask them to produce it in that format. They should do this if it is reasonable for them to do so.
If the Agency fails to make the information available to you in an accessible format, it may be contravening the Convention as well as engaging in unlawful indirect disability discrimination under Section 6 of the Disability Discrimination Act 1992.
3. Pursuing your rights about accessing information under the NDIA
When making a complaint about access to information, usually you will start by asking the Agency to change a decision it has made or you may want to make a complaint about how they have handled the information you need. If this doesn’t work, you may need to go to the AAT. You don’t have to argue legal issues when you make a complaint. You just have to show why you think the decision is incorrect, or why it has not enabled you to have access to information in the way you need to. Having an advocate or lawyer help you, especially if you are arguing your case to the AAT, can help keep you on track and give you a better chance of having your side of the story heard properly.
i. The NDIA
The National Disability Insurance Agency has its own internal complaints handling processes.
If your complaint is about how the staff at the Agency has treated you, or about delays in getting things done, or anything else to do with the way the Agency operates, there is a complaints-handling process within the Agency for dealing with this. The staff is required to explain this process to you, if you want to make this sort of complaint. If you are not happy talking about this with the staff member you have been dealing with, then you can talk to another staff member about it. It can be very helpful to have an advocate to support you in this.
If your complaint is about a decision that has been made, such as whether or not you are eligible for support, or what sort of support you can get, then there is a different process. This involves:
- First, asking the Agency to review the decision;
- Second, asking the Administrative Appeals Tribunal (AAT) to review the decision.
You should ask the Agency to review the decision before going to the AAT.
Here’s a little bit more about what the process of making complaints involves, and what your rights are:
In making a complaint under the NDIS Act, you are entitled to expect the matter to be handled fairly and as quickly as possible.
You are also entitled to have an advocate support you. This can be whatever advocate you choose. It does not have to be an advocate suggested by the Agency.
In arguing for a decision to be reviewed under the NDIS Act, you don’t have to prove any particular legal issue. You just have to explain why you don’t like the decision that was originally made.
But your chances of getting the decision changed, and getting the decision you want, are likely to be better if you can couch your argument in terms of one of the laws that the Agency is expected to be upholding. This can mean arguing things such as:
- There is a better way to help you meet your personal goals and aspirations than the first decision;
- There are better ways of helping you become included in the community than the first decision;
- The first decision doesn’t really represent good value for money;
- The first decision doesn’t respect your choices adequately, or didn’t give you enough of a chance to have your say;
- The first decision in some way discriminates against you because of your disability;
- The first decision doesn’t respect one or more of your rights under the UN Convention.
ii. The AAT
Complaining about a decision the Agency has made usually begins with asking the Agency to review the decision. If you are still unhappy with their decision, you can take the matter to the AAT.
If you want the AAT to review a decision the Agency has made, you normally have to ask for this within 28 days of the Agency making the first decision. The AAT can sometimes extend this time if they think it is reasonable to do so, but you have to apply for this and explain why it is reasonable to give you more time beyond the 28 days.
Once you have applied to the AAT for the Agency’s decision to be reviewed, usually a Case Conference will be held. This involves you and someone from the Agency meeting with a staff member from the AAT to work out the best way to handle your case. Sometimes you can come to an agreement at this stage.
If you don’t come to an agreement at the Case Conference, the staff member from the AAT will work out with you whether to try to resolve things at a Conciliation meeting. This is another way of trying to come to an agreement. Again, it involves sitting down and trying to talk through what you think, and what the Agency thinks, and trying to come to an agreement. A staff member from the AAT will help run the meeting.
If this doesn’t work, then your case would need to go to a Hearing. This is much more formal, although not quite as formal as a court would be. Some people have a lawyer represent them at the Hearing. You can do this if you wish. The Agency might also be represented by a lawyer at the Hearing. Whether you go to the Hearing with a lawyer or without, you should at least get some legal advice beforehand, or help from an advocate, to help prepare yourself. You may need to bring a lot of paperwork and other evidence to support your argument.
Most Hearings are open to the public, but you can ask for the Hearing to be closed to the public if you wish,
There is no cost in applying to the AAT.
You can find out more about the AAT process on their website.
4. The Australian Human Rights Commission
You can pursue the matter with the Australian Human Rights Commission by making a complaint under the Disability Discrimination Act 1992.
The Commission will try to resolve the matter through conciliation. This means a staff member from the Commission will meet with you and the Agency and try to come to an agreement together.
If you cannot come to an agreement through conciliation, then you can take the matter to Court. This would involve going to either the Federal Magistrates Court or the Federal Court of Australia. This can be very expensive and it is vital that you seek legal advice before taking this step. Be aware that you have 60 days from the date the Australian Human Rights Commission finalises the complaint to apply to the Federal Court of Australia or the Federal Magistrates Court.
5. How the United Nations Convention on the Rights of Persons with Disabilities is relevant to your rights
Australia is a signatory to the UN Convention, which recognises a large number of important rights for people with disabilities. Some of these will be very relevant in arguing how the NDIS Act should be understood and applied. If you want to pursue a matter under the United Nations Convention, remember that it is mainly relevant to how the law should be interpreted and implemented. It is therefore always important to relate the right from the Convention back to the actual interpretation of the NDIS Act, or to the way the Agency is administering it, whichever of these is most relevant to your particular issue.