Inquiry into the Capability and
Culture of the National Disability
Insurance Agency
Submission to the Joint Standing Committee on the National Disability Insurance Scheme
16 December 2022
National Legal Aid Secretariat GPO Box 1422 Hobart TAS 7001 nla@legalaid.tas.gov.au 03 6236 3813
Inquiry into the Capability and Culture of the National Disability Insurance Agency
National Legal Aid (NLA) welcomes the opportunity to make a submission to the Joint Standing Committee on the National Disability Insurance Scheme’s Inquiry into the Capability and Culture of the National Disability Insurance Agency.
NLA understands that the Terms of Reference of the Inquiry are that the Committee will inquire into and report on the implementation, performance, governance, administration and expenditure of the National Disability Insurance Scheme (NDIS), with particular reference to:
a. the capability and culture of the National Disability Insurance Agency (NDIA), with reference to operational processes and procedures, and nature of staff employment b. the impacts of NDIA capability and culture on the experiences of people with disability and NDIS participants trying to access information, support and services from the Agency; and c. any other relevant matters.
NLA brings together the practice experience of the eight Australian state and territory legal aid commissions (LACs). In the 2020-21 financial year, LACs provided over 1.9 million legal services to people across the country.1 These services included approx. 161,120 services to people with disability through Your Story Disability Legal Support supporting the Disability Royal Commission, and services to assist people in relation to the National Disability Insurance Scheme, mental health advocacy and guardianship, disability discrimination, accessible community legal education, and services in the criminal, and family, family violence and child protection justice systems.
Based on this work, NLA is able to provide examples of NDIA practice that indicate where implementation, administration and governance of the NDIS can be improved to provide better outcomes for people with disability.
NLA recently made an extensive submission to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Disability Royal Commission). This submission draws from that NLA submission to the Disability Royal Commission. It is anticipated that the Disability Royal Commission will make a range of recommendations related to improving supports provided to people with disability, including the legislation that guides this. It is therefore recommended that the timeframes of this Inquiry are aligned to ensure that it can incorporate both the Disability Royal Commission findings and recommendations.
The NLA submission to the Disability Royal Commission highlighted the importance of developing disability policy, programs and services within a framework that promotes inclusion and human rights. One of the key recommendations in the NLA submission was that all governments should elevate and resource disability lived experience, leadership and self-advocacy and ensure people with lived experience co-design all reforms. It is therefore
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recommended that this is a priority consideration in assessing, improving and implementing any changes to the NDIS and the NDIA.
NLA also has some specific examples where NDIA capability and culture impacts on the experiences of people with disability and NDIS participants trying to access information, support and services from the Agency. These specific examples highlight the importance of the NDIA having capability for, and a culture of, having a person-centred approach that prioritises the needs of people with disability and taking a solutions based approach to this. The four examples below were also provided to the Disability Royal Commission.
Culturally Safe Supports for First Nations peoples
First Nations peoples face barriers to accessing culturally safe supports. The NDIS Act creates a broad obligation on the NDIA to communicate in language and terms that are appropriate for the people receiving the information.2 NLA supports the initiatives of the NDIA to improve its engagement with First Nations peoples and become more flexible, accessible, and culturally safe. NLA in this regard refers to the NDIA’s Aboriginal and Torres Strait Islander Engagement Strategy progress update issued in July 2021 and looks forward to the issuing of the refreshed Strategy.
Challenges accessing the NDIS are a particularly acute issue for young First Nations peoples in detention in the Northern Territory. Young people accepted on to the NDIS, but who are not legally represented, have been told by the NDIA that their NDIS plans cannot commence until they are released from detention. In matters where young people have been represented and plans have commenced when a young person is in detention, the NDIA has been slow to respond to changing circumstances (e.g. on the transfer to another detention centre thousands of kilometres away or on the release of that young person from custody). Such delay leaves the young person without the reasonable and necessary supports that should be available to them in detention and on release. A culturally safe approach would understand the importance of supporting First Nations people in detention, providing supports and plans for release and responding in a timely manner.
Supporting evidence – application of stringent approach to reporting and lack of awareness of impact of financial hardship
The NDIA typically requires people with disability to provide specialist practitioner reports and supporting evidence in order to approve access for a particular support need. Many people cannot afford to pay for these reports, and they can face long delays in gaining access, significant stress, and financial hardship.
Medical practitioners often complete the access request form with sufficient information to satisfy the criteria under the NDIS Act for the NDIA to determine whether the person should
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access specific supports. However, the NDIA commonly requests further, more detailed reports from the same medical practitioners (often at the person’s own cost) or requires specific language to be used by clinicians. Often the highly detailed information requested about disability is not required under the NDIS Act. Where a person does not respond within the required timeframe, the NDIS Act enables the NDIA to treat their access request as withdrawn.
LACs have often found the NDIA unwilling to consider requests to fund medical reports for people who are unable to pay for reports themselves, notwithstanding legislative power for the NDIA to do so. This imposes an increased burden, including an administrative burden, on the resources of other agencies, such as state health services, therapists, disability advocates, the Administrative Appeals Tribunal (AAT), and the LACs.
Gary’s story below demonstrates the adverse effects that can occur when multiple, staggered requests for new and different assessments are made by NDIA.
Gary’s story* (Vic)
I applied for the NDIS in around June 2017. When I applied, I had been living with debilitating back pain since 2012, which meant I had to stop working. As a result, I developed anxiety which led to severe depression.
Having worked throughout my life, I thought the Government would be there to support me to get things like a mobility scooter to help me get around and do the small and simple things in life. Instead, I have faced four years of delay after delay – every time I think I’m finally going to get the support I need, they just turn around and ask for more reports, more documents, new assessments. I feel invisible and abandoned.
Sometimes, it has all become too much to cope with. As well as the NDIS, it took years and going to the AAT before I finally got access to the DSP in 2019. About six months ago, I was so distraught because of the delays by the Government, feeling like I was not believed, and would never get any help. I felt worthless. I overdosed on my prescription medication, recorded a video saying goodbye to my kids. I woke up to the ambulance people in my house taking me to hospital. They said I was lucky to be alive.
But still the Government did not hear me or see me. I have jumped through every hoop – I just had a new occupational therapy assessment and the report said I should have access to the NDIS. Now, they want three more new assessments. Even the thought of getting to the assessments which are one-and-a-half hours away in a Maxi Taxi exhausts me, and I know I will be in pain getting there and back.
When I think about the money that has been spent by the Government, I am horrified because it’s more than what I’m asking for to get the help I desperately need.
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People who have never met me, who have never laid eyes on me have spent four years fighting to prevent me from getting the basic help I need to live a decent life.
AAT Review – adversarial approach
LACs receive funding to provide legal assistance to applicants seeking review by the AAT of decisions made by the NDIA, either where a person has been refused access to the NDIS or where the supports funded by the NDIS are considered inadequate.
The AAT merits review is intended to be “fair, just, economical, informal and quick”5, with the NDIA required to conduct itself as a model litigant. Many of the model litigant obligations have the potential to ensure that proceedings are conducted in a timely way, and thus avoid unnecessary delay.6
The NDIA is represented in every matter before the AAT by experienced solicitors, and in many cases barristers. The environment is generally adversarial, and the requirements can be technical. It can be intimidating for unrepresented applicants and non-legally trained advocates.
Proceedings are often long and complex and can require multiple expert reports, briefing counsel for hearings, numerous witnesses, witness expenses, costs of transcripts and written submissions. In our experience, the NDIA sometimes takes an adversarial approach that increases cost and complexity:
- Assisting the AAT: The NDIA has an obligation to avoid, prevent, and limit the scope of litigation.7 However, in some cases, the NDIA has expanded the scope of issues in dispute by raising matters at hearing which were not previously raised during alternative dispute resolution. The NDIA has caused participants to have to prove issues that are not in dispute. In addition, there is experience of the NDIA challenging the AAT’s jurisdiction, e.g. incorrectly characterising the decision under review, impeding rights to review by attempting to undertake unscheduled reviews, and/or issuing new plans arising from the unscheduled review without the consent/involvement of the participant or the AAT, rather than an internal review of the statement of participant supports.
- Summonsing practice: The NDIA has an obligation to make information easily available to the AAT and to present new material that is relevant and may assist the AAT. The NDIA’s ongoing practice of seeking an excessive number of summonses that are unlimited in scope often results in participants being required to provide a large volume of irrelevant material. This practice also requires our solicitors to review copious records, thereby limiting the number of clients we can assist. Further, the summonses have often been to medical professionals who have not treated the client for a number of years, and to government organisations such as Medicare and Centrelink, where obtaining documents can be a lengthy process. In addition, if the recipient does not
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3. Delays due to lack of engagement from the NDIA during pre-hearing processes
- Obligation to act fairly and promptly: Meaningful engagement in pre-hearing processes, less adversarial behaviours, and timely preparation/intervention are all critical to improve the conduct of matters. E.g. issues have been experienced in relation to delays associated with lawyers for the NDIA obtaining instructions from the NDIA, having power to make decisions and to attend case conferences and conciliations.
Rohan’s story* (Qld)
Rohan was a NDIS participant who was not satisfied with the supports in his plan. He sought internal review, and then, when not satisfied with the internal review decision, filed an external review decision in the AAT. Although the primary focus of his external review was in relation to a wheelchair, the occupational therapist who prepared a report for the AAT proceedings also recommended a number of other supports that would benefit Rohan. Following these recommendations, the NDIA’s lawyer requested that Rohan withdraw his Tribunal proceedings and lodge a “change of circumstances” request, so that these additional supports could be considered.
The NDIA lawyer’s request was made after the Federal Court of Australia handed down a decision (by consent of the parties) overturning the AAT’s decision in the case of QDKH.$ In the original hearing of QDKH, the applicant sought approval of certain supports which were not requested before the internal reviewer. The Tribunal determined that it did not have jurisdiction to consider supports that were not ‘put before’ an internal reviewer. The Federal Court’s decision subsequently determined that the Tribunal’s decision was an error of law – there is no such requirement.
In light of this, there is no reason that Rohan should have been requested to withdraw his AAT proceedings in order for the additional supports to be considered by the Tribunal. Additionally, no information was provided to Rohan as to the Federal Court decision, the implications of withdrawing, and the possible outcomes of a “change of circumstances” request.
There was no benefit in Rohan making a “change of circumstances” request. Doing so could have further delayed the resolution of his situation by introducing unnecessary procedures.
4. Lack of focus on support coordination including managing conflicts with service providers
LACs see a trend wherein the NDIA has been unwilling to provide adequate funding for support coordination. Oftentimes the NDIA recommends that participants engage with their Local Area Coordinator for this help rather than providing appropriate funding. In particular, The NDIA raises a technical legal argument to the effect that support coordination represents duplication of support provided by Local Area Coordinators, such that it is
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Participants are then required to argue (in the AAT) that the support provided by Local Area Coordinators is not adequate for their needs, due to the complexity of their disability and support needs. Putting aside the substantive merit of the NDIA’s position in relation to this issue, the approach creates an inherent difficulty considering that the participants in question are likely amongst the more profoundly disabled, and least able to advocate in these matters. Alternatively, where support coordination is provided, the NDIA can sometimes fail to provide funding in sufficient amounts to enable this support to be effective and beneficial.
Matthew’s story* (NSW)
Matthew is a middle-aged man with a mild intellectual disability who has also been diagnosed with post-traumatic stress disorder (PTSD) as a result of childhood trauma and sexual abuse. His mother also has an intellectual disability.
Matthew engaged in counselling following the abuse and further counselling as an adolescent. However, despite wanting to engage in counselling as an adult to assist in the management of his PTSD, he has been unable to do so.
In 2016 Matthew was accepted as a participant into the NDIS and NDIS funding was granted. His package did not include a support coordinator. Matthew was not involved in a pre-plan meeting with NDIS, does not understand his NDIS plan, and does not know how to access NDIS money. Further, the plan does not take into account his accommodation or employment needs. He participates in a supported work program, but this is not linked to his NDIS plan.
Matthew’s NDIS plan directs him to access his NDIS funding by using an online portal and contact the NDIA if he has any further enquiries. Matthew has limited literacy skills and no access or understanding of how to access this assistance online. Matthew does not have the ability to coordinate his NDIS plan, is unable to source supports for himself and requires assistance to follow through and engage with supports. Accordingly, Matthew’s NDIS plan requires urgent review to develop more appropriate and effective supports to meet his therapeutic, accommodation, social and employment needs.
Conclusion
Thank you for the opportunity to provide a submission to this inquiry.
Should you require any further information from us please be in touch with the NLA Secretariat on 03 6236 3813 or nla@legalaid.tas.gov.au
Yours sincerely,
Louise Glanville Chair, National Legal Aid