Brookes, Libby; Ballantyne, Tom --- "Review and appeal rights in the NDIS" [2019] PrecedentAULA 54; (2019) 154 Precedent 8

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REVIEW AND APPEAL RIGHTS IN THE NDIS

By Libby Brookes and Tom Ballantyne

The ideas and principles underpinning the National Disability Insurance Scheme (NDIS) are to be applauded: promoting and facilitating increased independence, community and economic participation for those living with a disability, and helping all Australians to reach their full potential.

THE PROBLEMS

However, for many participants, the reality of the scheme has not lived up to its initial promise and there are ongoing concerns over the planning process. There seem to be increasing numbers of complaints from participants and their families/carers about delays in receiving an NDIS plan, the lack of experience and expertise of NDIS planners, the lack of communication about the proposed plan, and also the contents of the plans themselves. This comes against the backdrop of participants and their families having struggled for decades to access appropriate services, therapy, equipment and care.

NDIS participants report that the planning process is frustrating, that the plans do not reflect the participants’ needs, and that it is difficult to get an unsuitable plan changed. In this sense, there is a real risk that the NDIS will simply replicate many of the frustrations and problems of the previous system.

Many disputes arise when the supports and funding included in a plan are not sufficient to meet a participant’s needs. Others arise where a potential participant is deemed not to have met the eligibility criteria. There remains significant confusion about the interpretation and application of the legislation, rules and relevant criteria. For example, the NDIS will only fund those supports it deems ‘reasonable and necessary’ to manage the participant’s disability.^[1] When deciding whether a support is ‘reasonable and necessary’, the decision-maker is to have regard to a list of criteria, which include ‘value for money’, ‘best practice’ and what supports the NDIS can reasonably expect families or others to provide to the participant.^[2] These are clearly subjective terms, but there is little guidance as to how they should be interpreted. Unfortunately this uncertainty is replicated in other areas of the legislation, including those relating to eligibility.

The lack of certainty and ongoing confusion about the correct interpretation of the rules clearly increase the risk of incorrect decisions being made, particularly when coupled with inexperienced or unskilled NDIS planners. There are also other factors likely to be feeding into the problem, including internal policy positions and financial pressures. However, the onus of responsibility shifts to the participant to contest and correct the plan and, as we shall see, this process has its own problems.

The NDIS system allows for both internal and external review (to the Administrative Appeals Tribunal and then the Federal Court) of certain decisions. There are a number of NDIS decisions deemed ‘reviewable’, including those about eligibility for the scheme and the contents of plans.^[3] The review system is beset by problems and creates a number of barriers for participants. Indeed, in our view, the NDIS review process does not promote confidence and accountability in the scheme and actually undermines access to justice for participants.

INTERNAL REVIEW

Under s100 of the National Disability Insurance Scheme Act 2013 (the Act), a participant may request that the National Disability Insurance Agency (the Agency) conduct an internal review of the decision in question (which includes approval of a support plan). Such a request must be made within three months of receiving the decision. There is no corresponding time limit for the Agency to complete the review, with the legislation saying nothing more than that it should occur ‘as soon as reasonably practicable’.^[4]

The Agency may affirm, vary or set aside the decision. In the case of a planning decision, this may mean that the Agency can decide that the original plan was appropriate, vary the plan or set the plan aside and issue a new one.

There is also scope for a more informal review of a plan under s48 of the Act. When a participant or their nominated person requests a review of a plan under these provisions, the Agency must decide whether to conduct a review within 14 days of receipt of the request. If the Agency does not make a decision, this is considered to be a decision to not conduct a review and an internal review of that decision will automatically commence.

It is important to note that a request for review under s48 does not entitle a participant to later seek external review, unlike a request for formal internal review under s100. This has led to confusion among participants.

ADMINISTRATIVE APPEALS TRIBUNAL

In the event that the Agency affirms the decision, or if a participant is not content with the extent of any variation, a participant has 28 days to file an application in the Administrative Appeals Tribunal (AAT).

There is no application fee. The AAT is also a no-cost jurisdiction and is designed to be a conciliatory process. The Agency will be required to provide Tribunal documents – a set of all documents within its possession which are relevant to the application and the decision in dispute. Supplementary Tribunal documents can be requested by the participant or the AAT if any documents have been omitted.

The AAT appeals are case-managed by the Tribunal and can involve a number of preliminary case conferences and alternative dispute resolution (ADR) via a conciliation conference. It is open to a participant to put new evidence to the Agency through this process, which may take the form of new expert evidence or more evidence from the participant themselves and/or their support network.

If the matter does not resolve at a conciliation conference, it will be listed for hearing by the Tribunal. Legal representation is not strictly necessary and, indeed, is difficult to obtain due to the ‘no costs’ nature of the jurisdiction.

If the AAT appeal is not successful, the participant can appeal to the Federal Court, which must be done within 28 days of the Tribunal decision. Adverse costs orders can be made in the Federal Court, so legal advice should be obtained as there may be costs implications associated with an unsuccessful appeal.

ACCESS TO JUSTICE?

Ensuring accountability through a robust and transparent system of internal and external review is essential for any insurance scheme, as it promotes trust and confidence in the scheme and its decision-making. It also ensures fairness and consistency across participants. Unfortunately, the review process outlined above provides only a nominal level of accountability and creates a number of barriers to participants seeking independent and thorough review of Agency decision-making.

The Agency’s handling of internal reviews has been particularly problematic. The Commonwealth Ombudsman received 400 complaints about the Agency’s handling of reviews in an 18-month period to January 2018, which represented 32.5 per cent of all complaints about the NDIS.^[5]

Reports from participants and other anecdotal evidence to date suggest that internal reviews have also been of limited use in changing plans, particularly when the plan under review relates to complex and/or high care needs. In our view, a number of factors may be contributing to this.

First, it is generally unclear whether the person undertaking the review has any additional expertise or experience in disability supports and care needs. If they don’t, then the problems created by the original planner’s lack of expertise are simply replicated. This is particularly problematic in cases of catastrophic disability and complex care needs.

Secondly, the ability of participants to obtain additional expert evidence about their needs (for example, from an occupational therapist) is extremely limited in most cases. It is therefore uncommon for the person conducting the internal review to have access to any new evidence that might influence their decision.

Finally, there seems to be significant confusion over the correct interpretation of the legislation and associated instruments across the Agency. This leads to inconsistent application of the rules and different outcomes depending on who is making the decision at any point in time.

There have also been significant problems with delays during the internal review process, something that was highlighted by the Commonwealth Ombudsman in a 2018 report.^[6] As noted, while participants must file a request for a review within three months of receiving notice of the decision, there is no timeframe imposed on the Agency to actually complete the review. Many participants report waiting months for any response,^[7] by which time their current plan may have expired, whereupon the process has to start again.

The AAT appeal in Simpson v National Disability Insurance Agency^[8] highlighted this problem. The appeal involved a request for internal review of an unsuccessful eligibility application and a delay of over nine months in the Agency completing the review. The AAT found that the delay was unreasonable as there was nothing complex or unusual about the request, and that the applicant was therefore entitled to lodge an appeal in the AAT despite the internal review not being completed. The AAT also specifically noted that this situation was not unusual and it had identified other people in the applicant’s position.

The Commonwealth Ombudsman also highlighted a number of other problems with the internal review process, including participants being encouraged or warned not to request a review,^[9] requests for review triggering a new plan, which restarts the whole process,^[10] and the Agency providing incorrect advice about review rights.^[11]

The AAT review process itself is also proving to be problematic in many cases. The ‘no costs’ nature of the AAT prevents firms from offering a ‘no win, no fee’ service and precludes most participants from accessing legal representation because of the cost. Legal Aid has received some funding for these appeals but resources are likely to be limited. A number of disability advocacy groups have also been funded to provide support but most are only able to provide advice rather than formal legal representation.

This means that most participants will have to rely on pro bono representation or be self-represented. However, the value of supports under dispute can amount to tens or hundreds of thousands of dollars per year. Many involve complex disabilities, high-care needs and require sophisticated expert evidence, which most participants will not be able to afford or arrange. The legislation and rules are also unclear, difficult to interpret and subjective. Finally, some disputes involve complex questions of statutory interpretation, or the interaction between the NDIS and other sources of support (for example, Medicare and the health system).

Difficult legal issues therefore often arise, making the barriers to engaging legal representation entirely inappropriate, particularly when the NDIS itself invariably engages legal representation from the defendant insurance firms. Simply put, this situation results in the most uneven of playing fields, is grossly unfair, and does little to promote trust and accountability.

Undermining the external review process in this way does nothing to improve decision-making within the Agency. Instead of encouraging good decision-making at first instance or in the internal review phase (and thereby minimising legal disputes), the restrictions against accessing legal representation simply shield the Agency from taking responsibility for poor decision-making. If participants could access appropriate legal representation and the Agency was also liable for legal costs in unsuccessful matters, it seems likely that more attention would be paid to getting the plan right in the first place.

The lack of effective legal representation in AAT appeals also means that jurisprudence will be slow to develop and the scope and nature of disputes will not be incrementally limited or narrowed by previous decisions. This will lead to unnecessary administrative and legal costs for the Agency and ongoing uncertainty and hardship for participants.

That said, the benefit of the ‘no-costs’ jurisdiction is that participants can appeal to the AAT without fear of an adverse costs order being made against them. For many, particularly those with smaller disputes, this is likely to promote greater access to justice, even if the balance is tipped against them once their appeal is heard.

IMPLEMENTING THE PLAN

If a participant seeks to have a plan reviewed, this does not stop the participant from accessing the supports that are provided for in the plan and in many cases it is advisable to continue to access supports throughout the internal and AAT review process. In such a case, it should be made clear that the participant’s continued reliance upon the plan does not in any way indicate their acceptance of the adequacy of the plan.

CONCLUSION

The aims and principles upon which the NDIS was founded are to be applauded. However, experience to date highlights that these are being undermined by a deficient planning process, and a review process that fails to function as it should because of a lack of transparency and accountability. Unless the problems are quickly addressed, the NDIS risks replicating the problems of the past, alienating its participants and jeopardising satisfactory outcomes for the hundreds of thousands of Australians who live with a disability.

Libby Brookes is a Principal Lawyer at Maurice Blackburn Lawyers, NSW Law Society Accredited Specialist in Personal Injury and head of the NSW Medical Negligence Department. She has a keen interest in issues faced by participants in relation to the NDIS. EMAIL [e-mail].

Tom Ballantyne is a Principal at Maurice Blackburn Lawyers and head of the Victorian Medical Negligence Department. He is a Law Institute of Victoria Accredited Specialist in Personal Injury and is active in NDIS issues for both Maurice Blackburn and the wider community. EMAIL [e-mail].

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^[1] National Disability Insurance Scheme Act 2013 (Cth), Part 2, s34.

^[2] Ibid.

^[3] Ibid, Pt 6, s100.

^[4] Ibid.

^[5] Commonwealth Ombudsman, ‘Administration of reviews under the National Disability Insurance Scheme Act 2013’, May 2018, 2.3.

^[6] Commonwealth Ombudsman, ‘Administration of reviews under the National Disability Insurance Scheme Act 2013’, May 2018.

^[7] Ibid.

^[8] [2018] AATA 1326 (22 May 2018).

^[9] Ibid, 4.34.

^[10] Ibid, 4.30.

^[11] Ibid, 4.16.