What is a settlement?

A settlement is a legal term for an agreement between both sides about how their case should be resolved. In NDIS appeals, this happens when you and the NDIA agree on what the result of your case should be.

Sometimes, a settlement will be something in between what you want and what the NDIA wants. You might agree to a settlement even though you don’t get everything you want but you do get some things you want, to avoid the time, stress and cost of going through a full AAT appeal. 

The AAT will usually make orders to officially record the settlement. These orders will:

• Tell the NDIA to do the things it has agreed to do as part of the settlement
• Tell you to do anything you have agreed to do as part of the settlement
• End your AAT appeal

Settlement orders are legally binding. This means both you and the NDIA have to do whatever the settlement orders say.

When might I talk about settling my case with the NDIA?

A settlement offer can be made or talked about at any time. But there are times when settlement discussions are more likely to happen.

• The NDIA might contact you to discuss settling your case within the first few weeks after you file at the AAT, if they think the NDIA internal review decision was wrong.
• When the NDIA sees the evidence you have provided to the AAT (for more information, see our fact sheet How To: Decide what evidence I need for my NDIS AAT appeal), they might decide you are right and should get at least some of what you have asked for. This could lead them to make an offer to settle your case.
• In some cases, you might attend a conciliation conference arranged by the AAT so you and the NDIA can talk to each other about the case. This is a good opportunity to discuss with the NDIA whether your case can settle, as conciliation conferences are designed to help cases settle if possible. 
• As your case gets close to a hearing, the NDIA might want to discuss settling the case to save the cost and stress of a hearing. (For more information about hearings, see our fact sheet How To: Get ready for and attend a hearing at the AAT).

What things should I think about when considering a settlement offer?

There are different ways the NDIA might make an offer to settle your case. They may:

• Send you an email (either from the NDIA or their lawyers)
• Call you to talk about a possible settlement
• Send you a Statement of Issues with what they are prepared to offer you
• Tell you what they are prepared to offer you at a conciliation conference or a case conference

Before you agree to a settlement, you should make sure you understand exactly what the NDIA is offering you. If the NDIA tells you about a settlement offer on the phone or at a meeting, it is a good idea to ask them to send you the details of their offer in writing so you can think about it carefully.

If you are not sure that you understand everything about settlement offer means, you can ask the NDIA to give you more detail about exactly what they are offering. You can also think about getting legal advice from one of the organisations listed below at ‘Where can I get advice if I need help understanding my options?’.

When you think about a settlement offer, some questions you could ask yourself are:

• What parts of my case are most important to me? Am I willing to give up on some of the things I have asked for, iso that I can get other things I care about more?
• If I don’t settle the case now, how much longer will it take for me to have a hearing and get a decision? And how likely do I think I am to win my case?
• If I accept the settlement offer, what would this mean for me practically? Can I use what the NDIA is offering me to get the supports I need for my disability?

It might help to speak to your support coordinator if you have one, or therapists you work with (such as occupational therapists, doctors, and other allied health professionals) about a settlement offer. They might be able to give you ideas about how you can use the things being offered in a settlement, or whether it is important that other things are included in the settlement.

SDA cases

Cases about Specialist Disability Accommodation (SDA) can be complicated, because SDA is a complex type of support that affects lots of parts of a person’s life. There are special things that should be considered when a settlement offer is related to SDA.

Details of SDA funding: If the NDIA has offered to give you funding for SDA, you should think about if the funding offered is enough for the type of SDA you want to live in. You should check that:

• The funding being offered is for the right design category of SDA. The design category refers to the specialised disability support features of the SDA. It will be either ‘High Physical Support’, ‘Fully Accessible’, ‘Improved Liveability’, or ‘Robust’.
• The funding being offered is for the right building type of SDA. The building type refers to whether the building is an apartment, villa/duplex/townhouse, or house, and the number of bedrooms and people in the building.
• The funding being offered is for the location where you want to live.
• The funding being offered includes the cost of sprinklers, and/or onsite overnight assistance if you need these things.

You should speak to your support coordinator about what SDA funding you need and if the funding being offered matches it. If you have already chosen an SDA home you want to live in, you could also talk to the SDA provider to see if funding will let you live in your preferred home.

Living supports funding: Most people who live in SDA housing also need funding to pay for support workers who will help them with their support needs. An NDIA settlement offer that includes SDA should also include how much funding they will offer to pay for your support workers. If the settlement offer does not include these details, you should ask the NDIA for them.

Once you know how much the NDIA is offering for living supports, you should check with your CoS, and your occupational therapist (if you have one) to see if the funding can pay for the support hours you need. You should also check whether the funding can be used to pay for the right model of support hours (like if it provides funding for an on-call, on-site support worker if you need one, or for sleep-over shifts if you need them). 

Assistive Technology funding: Even though SDA homes are built to suit people with disability, most people will require some assistive technology (AT) at their new SDA home. This might include automated doors and blinds, grab rails in the bathroom, or equipment like a hoist or a therapeutic bed.

If you have an occupational therapist, you should ask them what AT they recommend for you. If you have already selected an SDA home that you want to live in, you can speak to the SDA provider about what AT needs to be installed, and what AT is already installed. If the settlement offer does not include funding for AT, you should check with the NDIA whether they will fund AT that your occupational therapist says you need.

What if I’m not happy with a settlement offer?

If you don’t want to accept a settlement offer, you can tell the NDIA you don’t agree to the offer. If there is a reason why you are not happy, you could explain this and see if the NDIA will change their offer to make it more acceptable to you.

Or, you can make an offer to the NDIA, that explains a settlement you would accept. You should make sure that any offer you make has everything you need in it. You should also think about how the NDIA might react to your offer, and how your offer might affect any future discussions with them. You should also think about if you can reasonably ask the NDIA for more funding or supports to be included in the settlement, based on the evidence you have provided.

What if I am happy with a settlement offer and want to accept it?

If you and the NDIA agree on a settlement, you will need to make a document that says what you have agreed to. This document is called a Terms of Agreement. 

If you don’t have a lawyer helping you, the NDIA’s lawyers will normally prepare a draft Terms of Agreement, which you should read carefully, to make sure it includes all of the things you and the NDIA have agreed on.

When you and the NDIA agree on the Terms of Agreement, you will both have to sign it,  then tell the AAT you want to settle the case, then send the AAT a copy of the Terms of Agreement. If the AAT is happy with the Terms of Agreement, it will make orders that finalise your AAT case and record what you and the NDIA are each required to do for the settlement.

The NDIA sometimes suggests that people settle a case by withdrawing their AAT application with an agreement that the NDIA will do a plan review. In most cases this is NOT a good idea, because you can’t be sure the NDIA will give you what you want after you withdraw your AAT case. If the NDIA wants to settle your AAT case, it should usually do so by getting the AAT to make settlement orders.

If the NDIA has asked you to withdraw your case, or if you aren’t sure you understand the draft Terms of Agreement the NDIA has prepared, you can think about getting legal advice from one of the organisations listed below at ‘Where can I get advice if I need help understanding my options?’.

Once settlement orders are made by the AAT, they will usually look something like this:

***Example of Tribunal Settlement Orders***

After these orders are made, your AAT case will be complete and settled, and it is up to you and the NDIA to follow through on the things you have agreed to do in the settlement.

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.

Who made this factsheet?

Housing Hub and the Justice and Equity Centre (JEC) made this together in October 2023. It was updated by the Housing Hub in 08/10/2023. Since 2021, JEC and 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.