Consistent Decision Making – SDA Services’ Decisions Register
By Greg Barry, SDA Services Founder and Principal Consultant
Courts and tribunals recognise the need for consistency within administrative decision-making to safeguard against arbitrary decisions and to deliver natural justice.[1] Commonwealth agencies including the NDIA are obliged to act as model litigants. Those obligations include a responsibility to act consistently in the handling of matters.[2]
The NDIA’s Operational Guideline on Reasonable and Necessary Supports states:
While we need to consider your individual circumstances and disability needs, we also need to make consistent decisions and treat people fairly. This means participants with similar circumstances and disability needs should receive similar amounts of supports in their plans.[3]
The importance of consistency for NDIA SDA decision-making was addressed by the Administrative Appeals Tribunal “AAT” in Kennedy v NDIA where the AAT member found that Mr Kennedy ought to be approved for SDA upon similar terms as persons with similar circumstances and disability needs.[4]
SDA Services started keeping an internal SDA Decisions Register back when our total number of participant engagements was approximately 250. The singular motive for doing that was to be able to deploy this data optimally for all participants we support by assisting NDIA SDA decision-makers to practise consistency. That data assists all levels of decision-making - initial Home and Living decisions, subsequent NDIA internal Section 100 review decisions, and any subsequent AAT process.
The matters which are recorded in the register include, amongst other things;
● Participants’ diagnoses, impairments and support needs,
● Scorings from OTS’ assessments of persons’ functioning and needs,
● The SDA building type (including living arrangement) which was sought,
● The SDA design category which was sought,
● The SDA decisions outcomes, journeys’ milestones, and destinations.
For Mr Kennedy’s matter, SDA Services produced deidentified tables of past NDIA SDA decisions from the decisions register where cases’ circumstances and decisions outcomes aligned with Mr Kennedy’s quest. The AAT member stated in his decision that the tables had shown “critically” that a participant in like circumstances “was accepted for SDA funding to enable …” an outcome like Mr Kennedy had sought.[5]
Unrelated to our initial motive the Register’s data now aids analyses of trends like SDA eligible participants’ needs, preferences, and outcomes across Australia.
SDA Services’ Decisions Register now contains more than 1300 entries and serves its original purpose better as the numbers grow. By our best estimate, there have been approximately 7,000 new build SDA participant NDIA approvals (as distinct from Legacy situations) made by the NDIA since the SDA Rules were first legislated in February 2017. SDA Services has made a proud contribution to the number of SDA new build participants’ approvals nationally.
[1] Segal v Waverley Council (2005) 64 NSWLR 177, 201.
[2] Judiciary Act 1903 (Cth) s 55ZF; Legal Services Direction 2017 (Cth) app B.
[3] Operational Guideline page 4
[4] Kennedy v NDIA [2022] AATA 265, [52].
[5] Kennedy v NDIA [2022] AATA 265, [50].