This fact sheet was last reviewed on 10/10/2023. Please note that the law and practices relating to NDIS appeals change frequently. The fact sheet provides general information and suggestions only. The fact sheet does not provide legal advice, and might not apply to your circumstances. If you need legal advice, you can find an advocate or a lawyer to help you using the links below at ‘Getting your own advice’.

If you have a case at the Administrative Appeals Tribunal (AAT) and feel the NDIA or its lawyers are not treating you fairly, you can raise a complaint.

We understand it can be tiring to raise complaints, particularly if you feel the NDIA is not listening or that things are not going to change. But we encourage you to make complaints where possible, so there is a record of the problems. When many people make complaints about similar issues, this can show that systems need to be improved. 

The NDIA’s Model Litigant Obligations

As an agency of the Australian Government, the NDIA is expected to uphold very high standards when it is involved in cases at the AAT or in courts. These expectations are set out in a document that lists what are called its “Model Litigant Obligations” (MLOs).  Some of the most relevant MLOs require the NDIA to:

• Deal with cases promptly and not cause unnecessary delay
• Try its best to settle cases early (including through negotiations or alternative dispute resolution) wherever possible, especially if a person has a strong case
• Act consistently from one case to another
• Try and save time and resources for the AAT and the applicant, including by not making unnecessary technical arguments 
• Not take advantage of a person’s lack of resources to support them running their case
• Say sorry, where it is clear the NDIA or its lawyers have done the wrong thing.

Some common issues we hear about from people when dealing with the NDIA at the AAT may go against (‘breach’) the MLOs. These include where the NDIA:

• Repeatedly fails to meet deadlines set by the AAT, delaying the progress of a case
• Doesn’t attend AAT events like case conference, or is unprepared when attending
• Files unnecessarily long submissions of documents and information
• Refuses to settle cases, or only settles them at the last minute before a hearing, when it could have settled them much sooner 

If you think the NDIA is breaching the MLOs in your case, you can complain and ask the NDIA to fix the breach.

How to complain about a breach of the NDIA’s Model Litigant Obligations

If you think the NDIA has breached an MLO, you should raise that with the NDIA’s lawyers, who are responsible for upholding the MLOs. 

You should raise a possible breach as soon as possible after you become aware of the issue. You can write an email to the NDIA’s lawyers. 

If you become aware of the breach based on something the NDIA or its lawyers say to you in a conversation, you can raise the possible breach verbally. But consider also sending a follow up email confirming your concerns, so you have a written record of the issue. 

To raise a breach, you could politely ask the NDIA’s lawyers whether they are acting consistently with their MLOs, or say you are concerned they may not be acting as their MLOs require. This might allow the NDIA’s lawyers the opportunity to clear up a misunderstanding, and avoid causing unnecessary conflict or offence.

If you think there is a breach of an MLO during an AAT case conference or another AAT event, you can mention it immediately; but otherwise, it is not generally appropriate to include the AAT in these discussions. For example, it is not usually helpful to write to the AAT to complain about a breach of the MLOs.

Once you raise a breach of the MLOs with the NDIA’s lawyers, if they agree there has been a breach they should act immediately to fix it and say sorry. If they don’t agree that they have breached the MLOs, they should clearly explain why.

If you are not satisfied with the NDIA lawyers’ response, you can make a formal complaint by writing to the NDIA’s legal team using our formal complaint template.

It can be difficult to know whether something the NDIA has done is a breach of the MLOs. If the NDIA’s legal team does not think there has been a breach of an MLO, they will generally refer your complaint to the NDIA’s general complaints team. 

If the NDIA’s legal team agrees there has been a breach of an MLO, they will take action to fix it and should also say sorry to you for it.

If you’re not sure whether the NDIA has breached its MLOs in your case, you can think about getting legal advice from the organisations listed below at ‘Where can I get advice if I need help understanding my options?’.

General complaints about the NDIA

You may have a general complaint about how the NDIA has acted in your AAT case that does not relate to the MLOs. This might include where:

• You believe the NDIA or its lawyers have been insensitive or rude to you
• You think the NDIA has a policy that is inappropriate or unlawful
• You believe the NDIA or its lawyers have not acted in a way that properly considers your disability-related needs, or other needs (such as acting in a trauma-informed way)
• You believe the NDIA has made administrative or legal mistakes in handling your case

Making a general complaint to the NDIA

To raise an issue, fill out the complaint form on the NDIS website.

You can email your complaint form to feedback@ndis.gov.au, drop it off at an NDIS office, or post it to: National Disability Insurance Agency GPO Box 700 Canberra ACT 2601

Include any written evidence or records you have that help explain and support your complaint. You should also make clear what you would like the NDIA to do, which may include changing a decision they have made, saying sorry, or changing a practice or a policy they have.

Making a complaint to the Commonwealth Ombudsman 

The Commonwealth Ombudsman (‘the Ombudsman’) is an independent body that oversees Australian Government Agencies like the NDIA, and resolves complaints between agencies and the people they serve.

If you have made a complaint to the NDIA and you are unhappy with the response, you could consider making a complaint to the Ombudsman. Find more information at the Ombudsman’s website.

The Ombudsman cannot change a decision made in your case, or force the NDIA to act differently. The Ombudsman’s role is to investigate complaints and make findings or recommendations. These could include finding the NDIA has done the wrong thing, or recommending the NDIA say sorry to you, but the Ombudsman cannot force the NDIA to do these things.

Where can I get advice if I need help understanding my options?

You may be able to get advice about your options for requesting a review and help with other questions about the NDIS from a legal service. It will depend on the type of problem you have, and where you are located.

If you need help from a lawyer, National Legal Aid has the contact details for your local Legal Aid office.

If you need help from an advocate, the AskIzzy Disability Advocacy Finder is an online tool to help you find to search for advocacy providers using your suburb or postcode.

You can also look at our other fact sheets about this, including:

• How to: Request a review of an NDIS decision that I don’t agree with
• How to: Apply to the AAT for an external review
• How to: Get the reasons why the NDIA has made a decision
• How to: Request access to documents about me from the NDIS
• How to: Ask for more time to apply to the AAT
• How to: Understand the T-Documents the NDIA files in my AAT case
• How To: Read a Statement of Issues from the NDIA
• How to: Ask for a Fast-Track Hearing at the AAT
• How to: Get ready for and attend a case conference

Learn more

UpSkill has a recorded webinar about the NDIS appeal process and the role of the AAT. Visit the website here to enrol and learn more.

People with disability and their families can email UpSkill at upskill@summerfoundation.org.au for free access to this webinar.

Who made this factsheet?

The Housing Hub and the Public Interest Advocacy Centre (PIAC) made this together. Since 2021, PIAC and the Housing Hub have worked together to provide advice and assistance to participants seeking SDA funding. This factsheet is part of a series about challenging NDIS decisions.