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Guidelines

3. Civil law matters

3.18. National Disability Insurance Scheme

3.18.1 Complex or novel factors

A Grants Officer may, with the consent of the AAT applicant (or their legal guardian), obtain information and documents about the matter from the NDIS for the purpose of assessing whether the matter raises a complex or novel legal issue.

The factors to which a Grants Officer may have regard in making a decision that a matter raises a complex or novel legal issue include, but are not limited to, the following:

Factors relating to the National Disability Insurance Scheme Act 2013 (NDIS Act) and rules

a) Whether interpretation or application of a provision under NDIS Act, or rules made under the NDIS Act (rules):

  • has been considered and fully addressed by the AAT or a court;
  • is not comparable to another provision that has been considered and fully addressed by the AAT or a court;
  • is not well understood or does not have an obvious meaning, including where there is ambiguity.

b) The evidence base (including where there is limited or no evidence base) in relation to a disability, therapy or support.

Factors relating to the administration of the National Disability Insurance Scheme (NDIS)

c) Whether a decision in relation to the matter:

  • will clarify an uncertain or contentious area of law in relation to the NDIS Act or rules or the application of policy;
  • will resolve an important question of law arising under the NDIS Act or rules;
  • may result in improvements or beneficial changes to the administration of the NDIS;
  • is likely to affect a significant number of participants in the NDIS.

Other considerations

d) If a case is determined to raise a complex or novel issue, the Grants Officer may also have regard to the following considerations:

  • the reasonable prospect of success of the application to the AAT;
  • the number and relative merits of other applications for funding for legal services;
  • good use of public money;
  • whether the application is frivolous or raises only speculative arguments.

e) The merit of a matter is not determinative of whether it raises a complex or novel legal issue.

f) The Grants Officer may determine the weight to be given to relevant factors.