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McIllwraith, Janine; Madden, Bill --- "NDIS - a clearer picture?" [2018] PrecedentAULA 69; (2018) 149 Precedent 20

NDIS – CLEARER PICTURE?

By Janine McIlwraith and Bill Madden

The National Disability Insurance Scheme (NDIS or scheme) commenced with a transitional phase launch on 1 July 2013. It is now close to full rollout, scheduled to be completed by 2020. At full rollout it is anticipated that approximately 460,000 Australians will be receiving assistance through the scheme. As the number of participants has increased, personal injuries lawyers have become more cognisant of the importance of understanding the scheme and its potential impact on their clients.

As the name explicitly states, the NDIS is an insurance scheme. The move from disability support being a social welfare scheme to an insurance scheme has a number of consequences. The objects of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) are set out under s3 and are to be achieved by adopting an insurance-based approach, informed by actuarial analysis, and with an emphasis on financial sustainability. Financial sustainability is relevant not only to who accesses the scheme and what supports are funded but also to ensuring that appropriate repayments and adjustments to plans are made when someone receives compensation for an injury leading to their disability. The scheme is largely funded via a levy on taxpayers. Thus any shortfall in funding is likely to require an increased levy and would potentially jeopardise public support for the scheme.

The NDIS has been heralded as the biggest social change in Australia since the introduction of Medicare. Given the enormity of the change, teething problems are hardly surprising. However, many of these initial problems are in the process of being addressed. Part of the mechanism for providing an appropriate response for participants has been via judicial review, which assists in bringing transparency to the decisions of the National Disability Insurance Agency (NDIA, or Agency) and clarity regarding interpretation of the statute.

JUDICIAL REVIEW

In the first few years of the scheme the number of cases progressing to the Administrative Appeals Tribunal (AAT, or Tribunal) was small, but those numbers have increased significantly in 2018. The most recent quarterly report in June 2018 states that there had been 1,021 AAT cases. Of those cases only 25 proceeded to a substantive decision.^[1]

The number of matters being dealt with, presumably at the conciliation stage, is high, which may have negative consequences for transparency in terms of the overall pattern of disputes. The 25 cases that proceeded to hearing fall into three broad categories, concerning:

1. What constitutes ‘reasonable and necessary supports’; or

2. Whether a person is eligible to become a participant; or

3. Whether the tribunal has jurisdiction to hear the matter.

The majority of reported decisions fall into category 1. Given that each of the cases is heavily fact-dependent, it is difficult to discern any particular principles being developed; however, some themes may be emerging. This article provides the detail of a few recent cases with the aim of illustrating some of the issues that are being addressed regularly by the Tribunal.

Reasonable and necessary supports

The first emerging theme is an emphasis on ensuring that the supports requested by participants align with the goals and aspirations set out in their statement of goals and aspirations.

David and NDIA [2018] AATA 2709 (8 August 2018)

Mr David is a young man who suffers from a condition known as nemaline myopathy, which is a muscular disorder that leads to severe weakness and respiratory failure. As a consequence, he requires 24-hour ventilatory support. The condition is severe and progressive and renders Mr David wheelchair-bound. He is dependent on others for care needs and lives with his mother in the family home.

Mr David sought funding for taxis for work, family contact, sporting and volunteer commitments, and hospital appointments. He also sought funding for a carer’s airfares and participation fees so that a carer could travel with him to interstate sporting events.

The Tribunal noted that Mr David’s plan stated his goals as increased independence in preparation for moving out of home, the pursuit of a career in sports management and participation in competitive sport. His plan allowed for $6,000 per year for transport. The Agency was prepared to commit a further $1,000 to facilitate participation in interstate sport but opposed the other aspects of the application.

The Tribunal noted that in McGarrigle and NDIA [2017] FCA 308 (28 March 2017), Mortimer J came to the view that each support must be identified and determined to be reasonable and necessary. Further, once an item like transport was found to be reasonable and necessary, the NDIS was liable to pay for the full cost of the item: ‘the support must be fully funded’ (at [100]).

The Tribunal considered evidence from Mr David, his mother, medical practitioners and two occupational therapists with regard to his capacity to travel by various means including public transport, and the practicalities of different modes of transport. The Tribunal noted the available public transport options were problematic given the distance from his home to the station and possible interruptions to services. Public transport also involved a risk of accidental or malicious disconnection of his ventilator and/or inability to switch systems in the case of a malfunction. The Tribunal accepted that the ability to use taxis would increase Mr David’s independence, his ability to pursue a career and to participate in sport.

‘In the context of both the objects of the Act and the section 34 criteria, funding for taxis as sought will assist the Applicant pursue [his] goals, objectives and aspirations... It does not seem an unreasonable cost in terms of value for money and has certainly taken into account the contribution from his family, carers and other informal networks towards this pursuit.’^[2]

Choice and control

The second emerging theme is that participants should be afforded choice and control as set out in the objects of the Act.

Munday and NDIA [2018] AATA 355 (2 March 2018)

Mr Munday lives in rural NSW. He suffers from hereditary spasticity paraplegias which results in impaired walking due to weakness in his legs. It is generally a progressive condition. Mr Munday became a participant in the NDIS in 2016, when his plan did not make any allowance for a motorised wheelchair. He applied for internal review and his plan was altered to include funding for a powered wheelchair, but not the powered wheelchair he wanted. Mr Munday subsequently appealed to the AAT seeking funding for his preferred powered wheelchair.

Mr Munday sought funding for a Zoom ATV, whereas the NDIA had approved a Glide Centro TDS. Both models were similarly priced, but the Zoom ATV’s top speed exceeds that allowed by the road rules for wheelchairs to be used on footpaths, (however a speed inhibitor could be installed to overcome that problem). Mr Munday gave evidence that he wanted the Zoom ATV as it had a wider wheelbase and would allow him to participate in activities he enjoyed like going to the beach and the snow.

The NDIA asserted that the Zoom ATV did not represent value for money because of its limitations. An occupational therapist gave evidence that the Zoom ATV did not have capacity to accommodate Mr Munday’s changing needs as his disability progressed and was not suitable for travel on public transport.

The Tribunal noted that the life of a powered wheelchair was between three and five years; that the Zoom ATV would allow Mr Munday to pursue his stated goals; and commented on the legislative requirement to enable people with disability to exercise choice and control, leading to a finding that the Zoom ATV did represent value for money. In balancing the limitations of the Zoom ATV against its benefits, the Tribunal also found that it was beneficial, having regard to current good practice.

That left the question of whether the Zoom ATV would be likely to cause harm or pose a risk to Mr Munday or others. As the occupational therapist had indicated that one option was for Mr Munday to utilise his own funds to buy a Zoom ATV, the Tribunal took that to mean it was not unsafe. The member noted that in his opinion the Zoom ATV must have the speed inhibitor in order to be safe. Thus the NDIA decided that Mr Munday would receive funding to purchase a Zoom ATV with a speed inhibitor fitted.

‘If owing to the progression of his HSP, Mr Munday is no longer able to transfer in and out of the Zoom ATV and is thus unable to drive it, he runs the risk of being housebound again. Mr Munday is an adult and he must live with the consequences of seeking a Zoom ATV.’^[3]

Eligibility by reference to appropriateness of funding by the NDIA

One issue that has previously been subject to consideration by the Tribunal is whether a particular support being sought is most appropriately funded by the NDIS or should be funded as part of another universal service obligation, most frequently the health system. In the following two cases, the same issue was raised in relation to eligibility to become a participant.

BBMC and NDIA [2018] AATA 386 (6 March 2018)

The applicant was a 33-year-old female who had lodged an application to become a participant in the NDIS. Her GP listed her disabilities as:

o generalised anxiety disorder – severe;

o severe irritable bowel syndrome;

o sicca syndrome; and

o cluster migraine.

The NDIA accepted that she met the age and residency requirements but decided she did not meet the disability requirements under s23 of the Act. The applicant conceded she did not meet the disability requirements but contended she met the early intervention requirements under s25. At the hearing the NDIA conceded and the Tribunal accepted that the applicant met the s25(1) and (2) requirements. At issue was s25(3) – whether the support was most appropriately funded through the NDIS or whether it should be funded through general systems of service delivery such as the health system.

The applicant gave evidence that she has had mental health impairments since childhood. Since 2012 she has had a Mental Health Care Plan and a Chronic Disease Management Plan. Once that funding is exhausted she self-funds her weekly psychology sessions for the remainder of the calendar year. There was evidence before the Tribunal from two clinical psychologists and a consultant psychiatrist confirming the applicant’s long-term mental health impairment.

The Tribunal noted that the NDIS (Supports for Participants) Rules 2013 clearly state that the Agency will not be responsible for supports related to mental health that are clinical in nature, including continuing care. The member went on to find that the psychotherapy the applicant was seeking to have funded was clinical in nature and therefore did not satisfy the early intervention requirements.

‘“it does not follow that the NDIS should assume responsibility for the applicant’s psychotherapy support simply because she does not receive adequate treatment and support through the health system.’^[4]

Pomeroy and NDIA [2018] AATA 387 (6 March 2018)

Mrs Pomeroy lodged an access request to become a participant. Her application was supported by a staff specialist who listed her disabilities as:

o inability to mobilise for more than a few metres without assistance of another person and walking aid;

o severe bilateral osteoarthritis of the knee;

o severe low back pain; and

o morbid obesity.

Mrs Pomeroy was seeking access to the NDIS to provide home modifications to the bathroom and entrance to her home and to receive assistance from a dietician and physiotherapist. The NDIA accepted that she met the age and residence requirements but not the disability requirements, nor the requirements of the alternative access criteria under s21(2).

The evidence was that gastric surgery was likely to remedy Mrs Pomeroy’s obesity impairment. She requires assistance with bathing, toileting and dressing but not with communication, social interaction, learning or self-management. The medical opinion was that Mrs Pomeroy’s mobility was declining secondary to obesity and osteoarthritis and that she required extensive physiotherapy. An occupational therapist gave evidence that Mrs Pomeroy had been bedbound for 8 months and requires 24-hour care. Her daughter gave evidence that she is unable to get her mother to medical appointments as her wheelchair does not fit in any transport vehicle.

The NDIA accepted that Mrs Pomeroy suffers from morbid obesity and chronic osteoarthritis and conceded that chronic osteoarthritis is a disability within the meaning of the Act. However, the Agency submitted that morbid obesity is not an impairment as it is a diagnosis made when a person’s weight falls within a certain range. The Tribunal did not accept that submission, finding instead that while morbid obesity is a diagnosis based on an individual’s weight, in the applicant’s case it is an impairment because it substantially reduces her physical functioning. The Tribunal found that Mrs Pomeroy’s morbid obesity and chronic arthritis are disabilities. However, it also found that the medical evidence showed that there may be treatments to remedy both the arthritis and obesity and therefore neither impairment was permanent.

The Tribunal then considered whether the early intervention requirements were met and decided that there was insufficient evidence to be satisfied that early intervention supports would benefit the applicant in the ways specified in ss25(1)(b) and (c).

The alternative access criteria are set out in s21(2) and are supplemented by the Prescribed Program Rules. Those Rules state that a person may be able to access the NDIS if they were receiving supports from a ‘qualifying program’ during the relevant ‘qualifying period’. Mrs Pomeroy did receive services from a qualifying program but only for a portion of the qualifying period. The Tribunal therefore held that the requirements were not met.

‘Based on the reports of Dr Karram and Dr Saddiq, I am satisfied that the applicant’s impairments are health conditions that are most appropriately treated and provided for through the health system. Consequently, I find that the applicant will not require assistance under the NDIS for her lifetime.’^[5]

Permanence of impairment

The following two cases addressed the interplay between health conditions, disability and impairment with a particular focus on when an impairment might be considered permanent and require assistance from the NDIA for a lifetime.

Sheldon and NDIA [2018] AATA 2560 (30 July 2018)

Mr Sheldon lodged an access request form completed by his GP. The GP had listed Mr Sheldon’s disabilities as:

• chronic back problem (multiple disc prolapse);

• cervical stenosis;

• diabetic neuropathy; and

• sleep apnoea.

The NDIA determined that Mr Sheldon did not meet the access criteria.

Mr Sheldon gave oral evidence. He is a 57-year-old male living on the mid-north coast of NSW with his wife and three children. He is in receives a disability support pension and his wife receives carer payments. In 2000 he fell down the front steps of his house. X-rays showed three bulging discs in his lumbar spine and two in his cervical spine. He received workers’ compensation and had not been employed since the accident.

His evidence was that Dr Hsu, spinal surgeon, had told him in 2011 that surgery was risky and was only 50/50 as to whether it would help. Mr Sheldon’s current treatment was exercise, hydrotherapy and pain medication. He gave evidence that he had difficulty mobilising and required assistance with activities of daily living (ADL).

A consultant physician in geriatric medicine and pain management provided a report indicating that Mr Sheldon’s spinal injury affected his ADL. He stated that continued treatment was medication and exercises. In 2007 another doctor considered it highly likely that Mr Sheldon’s disabilities would continue and he would be unfit for activities involving heavy lifting.

In 2017 Mr Sheldon’s solicitor sought a further report from Dr Hsu, although Mr Sheldon had not seen Dr Hsu since 2011. Dr Hsu indicated that Mr Sheldon’s pain and functionality will not improve. He also stated that no treatment other than surgery would be likely to improve Mr Sheldon’s condition and it is ‘possible but unlikely’ that such surgery would worsen his condition. However, Dr Hsu indicated he had never discussed surgery in depth with Mr Sheldon.

The Tribunal was satisfied that Mr Sheldon’s spinal condition is an impairment and a disability. However, as Mr Sheldon had not undertaken any recent medical review with regard to alternative treatments, the Tribunal concluded that Mr Sheldon’s condition could not be considered permanent.

Furminger and NDIA [2018] AATA 1872 (26 June 2018)

Mr Furminger completed an access request form outlining his primary disability as a degenerative spinal condition, spinal canal stenosis and chronic pain. He indicated he had a further disability which he detailed as clinical depression and post-traumatic stress disorder (PTSD). The NDIA refused his application.

A psychologist provided two reports which indicated that Mr Furminger experiences a substantial reduction in functional capacity and that intervention would help to reduce the long-term impacts of his condition. Mr Furminger’s GP believed that Mr Furminger’s conditions are likely to be lifelong and that Mr Furminger will require ongoing support with ADL.

There was no issue that Mr Furminger met the age and residence requirements. The NDIA also accepted that Mr Furminger has a disability attributable to a physical impairment or to one or more impairments attributable to a psychiatric condition.

The Tribunal found that Mr Furminger’s degenerative back condition was permanent. However, it concluded that it was not possible to find that the mental health conditions were permanent due to a lack of evidence documenting the PTSD. The Tribunal found that Mr Furminger had capacity for social and economic participation and was unable to find that the applicant was likely to require assistance for his lifetime. Further, there was no evidence that the early intervention requirements had been met.

‘The fact that the applicant was able to drive to Victoria by himself and make the necessary arrangements for accommodation, self-care and food as well as his involvement in the model railway club is, in my view inconsistent, with the need for such support.’^[6]

Jurisdiction

A few Tribunal decisions have commented on less than ideal correspondence from the NDIA to participants. In the following case it would appear that the Tribunal is minded to ensure that any deficit in the Agency’s processes and procedures will not be allowed to preclude participants from a right of review to which they would otherwise have been entitled.

Hassett and NDIA [2018] AATA 4 (4 January 2018)

The applicant was 17 years old and had a plan formulated which included $1,475 for home modifications. The applicant’s mother raised concerns about the adequacy of the funding with the NDIA. In response, the allocation for home modifications was increased to $81,842.05.

The NDIA’s decision letter did not outline the legislative basis for the review but it did state that the applicant had a right of review with the AAT. The parties requested that a decision be made on the papers as to whether the Tribunal did in fact have jurisdiction to hear the matter, on the basis that there had in fact been an internal review as required by s100(6) of the Act.

The Tribunal found that the wording of the NDIA’s letter was unambiguous and indicated that the decision was the result of an internal review. The author of the letter stated that they were a delegate of the CEO and there was no indication that they had been involved in the original decision. A significant increase in funding for reasonable and necessary supports was subsequently approved. The Tribunal held that, in the circumstances, the letter was a decision made under s100(6)(b) and thus it had jurisdiction to review it.

‘The delegate of the CEO for the respondent does not reference making the decision under a particular section of the Act. At this early stage of the implementation of the NDIS it would be unfair to be unduly critical in the wording of the decision of 3 November 2017. I have previously decided that the Act does not impose a statutory requirement for a decision-maker to refer to the statutory provision under which the decision is made. However in the future, it would be desirable to avoid any uncertainty if a decision referred to the statutory provision under which it was made.’^[7]

Simpson and NDIA [2018] AATA 1326 (22 May 2018) also concerned the issue of whether an internal review decision had been made. The Tribunal found that a decision was not made by the NDIA as soon as reasonably practicable and as such the application for review was deemed to have been refused. The refusal was therefore a reviewable decision.

Other cases

The cases that follow do not fit neatly into the categories identified above, but deal with interesting issues that may not have been addressed previously by the Tribunal.

PNFK and NDIA [2018] AATA 692 (28 March 2018) involved a baby who was born with severe hypoxic ischemic encephalopathy, said to have resulted from deprivation of oxygen during birth. The Tribunal held that the best interests of PNFK is a primary consideration when interpreting s34(1) of the NDIS Act because of the impact of the United Nations Convention on the Rights of Persons with Disabilities Article 7 point 2, which states ‘the best interest of PNFK who is a child with disabilities is a primary consideration when interpreting section 34(1) of the NDIS Act’ (at [106]). No mention was made of whether or not negligence proceedings had been considered.

In FFVQ and NDIA [2018] AATA 1968 (2 July 2018), the Tribunal held that a participant can claim reimbursement retrospectively if they have funded supports at a higher level than sanctioned and they then successfully challenge the decision not to fund those supports.

In FJKH and NDIA [2018] AATA 1294 (15 May 2018), the Tribunal considered whether ‘“as soon as reasonably practicable”’ is an ascertainable timeframe. In this case a participant having had made a request for internal review and the NDIA had failed to make a decision within six months. The Tribunal concluded that ‘as soon as reasonably practicable’ was a ‘prescribed period’ for the purposes of s25(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and a deemed affirmation.

In Way and NDIA [2018] AATA 983 (11 April 2018), Ms Way has an acquired brain injury as a result of a motor vehicle accident. She lives in a group home. Her brother was her advocate and sought an additional six hours per week of funding to allow her to go on outings twice a week with the support of two carers. The Tribunal looked at the issue of underspent funding in other areas of her plan and held that further funding was not reasonable and necessary in the circumstances.

In SSBV and NDIA [2017] AATA 2174 (17 October 2017), SSBV’s plan was due to end before the application for review could be determined. By consent of the parties, the reviewable decision was altered. The Tribunal retained jurisdiction to determine the application for review.

Watson and NDIA [2018] AATA 2247 (8 June 2018) was an extension of time application. The application was refused. The appellant applied to the AAT for a review of a decision by the NDIA that she did not meet the access criteria. The application was lodged with the AAT on 11 April 2018, the decision having been made on 21 July 2017. On 3 May 2018, the appellant lodged an application under s29(7) of the AAT Act for an extension of time to make her application. The NDIA opposed the extension of time sought. The application was refused on the basis that there would be prejudice to the NDIA if an extension was granted, that there had been considerable delay and that the appellant had ‘rested on her rights’. Therefore, it was held that an extension of time was not ‘reasonable in all the circumstances’.

NDIS AND COMPENSATION

Under s99 of the Act, a decision not to waive a debt and a decision not to treat the whole or part of a compensation payment as not having been fixed by a judgment or settlement are both reviewable decisions. However, as far as the writer is aware these issues have not been considered by the AAT as yet.

There has been some comment by the judiciary in other courts. Most recently, Lonergan J made some comments regarding the potential repayment obligations of an NDIS participant who was to receive compensation for an injury. Sharpe v Homecare Service of NSW [2018] NSWSC 1319 was primarily an application for approval of a proposed settlement of a claim that was commenced for a person under legal incapacity. There was uncertainty as to whether a repayment would be due to the NDIS. Justice Lonergan commented that under s107 the NDIA can claim repayment of services provided in relation to the participant’s impairment. However, while that may be valid generally, in this particular claim the ‘impairment’ for which the plaintiff was being compensated was not one that the NDIS has provided any services,^[8] that being her care and support as a result of a new injury that was the subject of the compensation payment. Accordingly, Lonergan J concluded that no repayment was due, based on the fact that the injury to which the claim referred was not the injury for which the NDIA provided reasonable and necessary supports.

In observing the delay that the NDIA’s position and conduct in this matter had occasioned, Lonergan J at [44] agreed with and adopted the comments of Johnson J in AB by her Tutor MB v State of New South Wales and Anor.^[9] In that case the failure to provide certainty to the plaintiff seeking compensation was noted to be unsatisfactory and Johnson J felt that, as a result, the NDIS should not pursue any sum against the plaintiff or their tutor.^[10]

NDIS and damages calculations

In the recent ACT case of Nouri v Australian Capital Territory [2018] ACTSC 275, Elkaim J made comment regarding a plaintiff’s entitlement to seek damages for future attendant care needs in light of the existence of the NDIS, and a likely entitlement on the part of their child to receive funding for reasonable and necessary supports. In obiter Elkaim J, in calculating what damages might flow, stated:

‘With some reluctance I have come to the view that notwithstanding the moral obligation that will continue to motivate the parents after Saba turns 18, they are not entitled to damages after this time. My decision is reinforced by the fact that after Saba reaches 18 there will be a legal obligation on NDIS to support her. I have no doubt this will not be to the same extent as the obviously excellent care she receives from her parents. Nevertheless, she will be entitled to support from this scheme.’^[11]

This is a difficult issue, which perhaps arose here only because the plaintiffs in the claim were the parents and the NDIS participant was the child. To that extent the court may have been considering the equivalent of social security offsets against future parental expenses in a wrongful birth claim setting. However, in a future judicial consideration of these issues, the courts may be required to consider more carefully whether the NDIS assessment of reasonable and necessary supports is or is not the same as reasonable compensation in a tort law context.

SUMMARY

 There has been a significant increase in the number of cases before the AAT in the last six to eight months.

 Participants should be afforded choice but will bear the responsibility of their decisions.

 The Tribunal will look with scepticism if the supports provided in one plan are subsequently decreased in the following plan with no change in circumstances to justify same.

 Where a participant has not used all of their funding it is imperative to set out the reasons why and why the requested supports should still be considered reasonable and necessary.

 Supports sought need to be closely aligned to the participant’s goals.

As a significant body of case law begins to develop in this area, greater clarity as to rights and entitlements is likely to follow. As plaintiff lawyers we have an obligation to ensure that our clients are as well-equipped as they can be to interact with the NDIA and we should be prepared to assist in communications with the NDIA wherever appropriate.

Janine McIlwraith is a Principal Lawyer, Medical Law, Slater & Gordon, and an Adjunct Associate Professor at the University of New England. EMAIL Janine.McIlwraith@slatergordon.com.au. Bill Madden is Special Counsel for Carroll & O’Dea Lawyers, Sydney. EMAIL bmadden@codea.com.au.

^[1] Of those 25 decisions of the AAT: 14 affirmed the Agency’s decision; 8 varied the Agency’s decision; 3 set aside the Agency’s decision; and 0 overturned the Agency’s decision.

^[2] David and NDIA [2018] AATA 2709, [66].

^[3] Munday and NDIA [2018] AATA 355, [100].

^[4] BBMC and NDIA [2018] AATA 386, [40].

^[5] Pomeroy and NDIA [2018] AATA 387, [50].

^[6] Furminger and NDIA [2018] AATA 1872, [60].

^[7] Hassett and NDIA [2018] AATA 4, [19].

^[8] Sharpe v Homecare Service of NSW [2018] NSWSC 1319, [32].

^[9] AB by her Tutor MB v State of New South Wales and Anor [2018] NSWSC 765, [20].

^[10] Sharpe v Homecare Service of NSW [2018] NSWSC 1319, [44]-[45].

^[11] Nouri v Australian Capital Territory [2018] ACTSC 275, [447].