Understanding the New Guidance and Appeals Panel in the Administrative Review Tribunal

The October 2024 reform of the Administrative Appeals Tribunal (AAT), now renamed the Administrative Review Tribunal (ART), introduced a significant change: the creation of the Guidance and Appeals Panel (GAP). This new appeals body operates within the ART and offers applicants a fresh option for reviewing decisions. This post explains what the GAP is, how it differs from the Federal Court of Australia (FCA) appeals, and what this means for applicants, especially those involved in National Disability Insurance Scheme (NDIS) matters.

What is the Guidance and Appeals Panel?

The GAP was established under Part 5 of the Administrative Review Tribunal Act 2024 (Cth). It serves as a new internal appeals body within the ART. Before this reform, if an applicant was unhappy with a decision made by an ART Member—often after a hearing about NDIS access or funding—the only option was to appeal to the Federal Court of Australia. This appeal was limited to legal errors under section 44 of the Administrative Appeals Act 1975 (Cth).

Now, applicants can choose to apply to the GAP for a review or appeal to the FCA, or even pursue both routes. The GAP offers a second merits review, which means it looks at the case afresh, including all evidence, not just legal errors.

How the GAP Differs from Federal Court Appeals

The Honourable Justice Emilios Kyrou AO, the inaugural President of the ART, clarified the key difference in an April 2024 paper. He explained that the GAP’s review is broader than the FCA’s appeal because it involves a second merits review rather than focusing solely on errors of law.

Key Differences

• Scope of Review

The GAP can consider all evidence, including new evidence not presented in the original hearing. It can make new findings of fact and reassess the merits of the case. The FCA, by contrast, only reviews whether the original decision contained an error of law.

• Cost

Applying to the GAP is free for NDIS applicants. The FCA requires a lodgement fee to be paid, though some exemptions exist, such as for applicants under 18 years old.

• Formality and Speed

GAP proceedings are less formal and may be quicker than FCA proceedings. This can make the process more accessible and less intimidating for applicants.

• Representation

Applicants can represent themselves in both GAP and FCA proceedings. However, the FCA’s formal procedures often make self-representation more challenging.

Practical Implications for NDIS Applicants

For many NDIS applicants, the introduction of the GAP offers a more accessible and affordable way to challenge ART decisions. For example, if an applicant disagrees with a decision about their NDIS funding or access, they can now apply to the GAP for a full merits review without the financial burden of Federal Court fees.

Example Scenario

Imagine an applicant who was denied funding for a specific support service by the ART. Previously, their only option was to appeal to the FCA, which could be costly and time-consuming. Now, they can apply to the GAP, which will review the entire case, consider any new evidence, and potentially overturn the original decision. This process is free and less formal, making it easier for applicants to seek a fair outcome.

How to Apply to the GAP

Applicants wishing to apply to the GAP must follow the procedures set out in the ART Act and the tribunal’s rules. Key steps include:

• Lodging an Application

The application must be made within the specified time frame after the ART decision.

• Providing Evidence

Applicants can submit new evidence to support their case.

• Hearing Process

The GAP may hold a hearing, but the process is designed to be less formal than Federal Court proceedings.

Applicants should carefully review the ART’s guidance materials or seek legal advice to ensure their application is complete and timely.

Benefits and Challenges of the GAP

Benefits

• Wider Review Scope

The GAP’s ability to conduct a second merits review means applicants have a better chance to have their case reconsidered fully.

• Cost Savings

Free applications for NDIS applicants reduce financial barriers.

• Faster Resolution

Less formal procedures can lead to quicker decisions.

Challenges

• Limited Precedent

As a new body, the GAP’s processes and decisions are still developing, which may create some uncertainty.

• Potential for Multiple Reviews

Applicants might face decisions being reviewed multiple times, which could extend the overall timeline.

• Need for Clear Evidence

While new evidence can be submitted, applicants must ensure it is relevant and persuasive to succeed.

What This Means for the Future of Administrative Review

The introduction of the GAP marks a shift towards more accessible and comprehensive review processes within the ART. It reflects a broader trend of making administrative justice more user-friendly and less costly, especially for vulnerable groups like NDIS applicants.

Applicants now have more options to challenge decisions and seek fair outcomes. This reform could lead to better decision-making and increased confidence in the administrative review system.

Summary

The Guidance and Appeals Panel offers a new, wider avenue for applicants dissatisfied with ART decisions. Unlike Federal Court appeals, the GAP conducts a full merits review, considers new evidence, and is free for NDIS applicants. This change makes the review process more accessible, less formal, and potentially faster. Applicants should understand their options and consider applying to the GAP when seeking to challenge ART decisions.

For those involved in NDIS matters or other administrative reviews, the GAP provides a valuable opportunity to have decisions reconsidered without the high costs and complexity of Federal Court appeals. Understanding this new panel is essential for navigating the updated administrative review landscape effectively.

At Bespoke Legal Group our team of Lawyers (NDIS Lawyers) can assist with your NDIS legal needs. We work in the area of Disability Law, Administrative Law and have an excellent understanding of the Healthcare Industry.

Call today to discuss your legal needs 0756200558

Disclaimer

This article is provided for general information purposes only and does not constitute legal advice. The law in this area is subject to frequent change, and readers should verify whether any updates have occurred since the time of publication. While care has been taken in preparing the content, readers must exercise their own due diligence before acting on any information. Professional legal advice should always be obtained for specific circumstances.