Submission Concerning the National Disability Insurance Agency (NDIA)

Dear Commissioners,

I am providing a submission concerning the National Disability Insurance Agency (NDIA).

I would firstly like to acknowledge and appreciate that we have the National Disability Insurance Scheme (NDIS). I know for my family and many others it has opened a world of support where before there were very limited supports, and it was managed by various schemes which was confusing and made access difficult for many.

I congratulate the government for having the foresight to acknowledge those with disabilities and to recognize that as a society we strive for a country that takes care of its most vulnerable members and recognized that we needed to do better.

The vision however is a work in progress, and I truly believe the only way we can reach that vision and see it come into fruition is to acknowledge its deficits and to evaluate and learn from the experiences faced by those in the community dealing with the NDIA.

LAC

the local area coordinators (LAC) are the first port of call for many families dealing with the NDIA. Our personal experiences as a family dealing with our local LAC has been very frustrating.

My son has been on the NDIA for about three years. Every year we have met with the LAC to discuss my son’s goals and therapy needs. We have gathered reports and submitted them to the LAC to form a plan and then to provide its submissions to the delegate at the NDIA to consider and come back with a figure of funding.

Every year we have had to do a review of a reviewable decision and this current plan we are currently at the Administrative Appeals Tribunal (AAT).

Our LAC at every meeting has constantly told us that we will not get the therapy and funding we have asked for. Yet at Review the NDIA has subsequently approved what we originally requested. This is demoralizing for families and makes us believe that the LACs are not really listening or appreciating what us as participants are saying nor are they reading and analyzing the long and often costly reports we are submitting to support why we are requesting the funding.

The LACS also refuse to provide the participants with access to the submissions they are making on our behalf to the delegate at the NDIA. Therefore, the participant cannot have any input to check what is being said in those submission prior to it being submitted to the delegate to review. I was just recently told that this is a direction from the NDIA and not the LACs and that we would have to make an FOI request to access this submission. I find that this is ludicrous, the submission is being written about us as participants and is our personal information, for a fair and open process, participants should be able to have input into the submission being put forward so that they are happy with what the delegate is actually receiving from the LAC and also so that a participant can ensure what the LAC is saying to support the funding supports requested is addressing the six reasonable and necessary criteria for each support requested.

I have concerns about LAC’s qualifications to interpret and correctly apply the legislation as well as to understand the reports being submitted to them. LAC’s should be able to read a report and

identify its shortfalls so that they could go back to a participant to say that it needs further evidence etc or it is likely to be rejected because of x,y, z etc

If this was being done, then participants would be better placed in ensuring that the supports requested get approved first time. This would lead to less people seeking a review of a reviewable decision under the NDIS ACT.

At this stage of the process, participants are heavily reliant on LAC’s to understand the legislation, the Allied health reports and to put forward the best submissions for the participants. Participants have no way of knowing what is being said until after the process which is often too late and means that any shortfalls cannot be identified earlier and addressed at the planning stage. This is leading to more and more people requesting reviews.

Receiving the NDIA Funding Decision

When a participant receives the funding decision from the NDIA they are not provided with any reasons as to why certain supports have not been funded nor do they receive any information as to how the NDIA has calculated its funding figure.

My son comes under the NDIA’s early intervention scheme and the NDIA practice guides state that the use of a typical support calculator should not be used. However, this does not appear to be the case.

I know this because the funding figure we received did not match any of the supports requested. My only conclusion is that a support calculator was used in determining the funding.

As I understood it this is in direct contravention of McGarrigle v National Disability Insurance Agency [2017] FCA 308 the Court at [93] his honour held that “the text and context of s33(5)(c) read with sections 34 (1) indicates that the CEO (or the delegate or Tribunal) must either be satisfied that a support has the character of being reasonable and necessary support, or that it does not.”

Therefore, if a decision maker determines that a support is found to satisfy the requirements of s34 and is deemed ‘reasonable and necessary’ it should be funded in full. There should not be huge discrepancies in the quotes provided by allied health providers and the funding decision of the NDIA and if there is then the NDIA should be outlining why there is a discrepancy.

The NDIA has developed operational guidelines to help it make its funding decisions and in addition to Operational Guidelines, the NDIA has developed internal guidance documents.

The NDIA’s guidance states that a justification that addresses the legislative criteria must be recorded for each funded support and requires that a record is kept for any declined supports. Yet the participant is not provided with any of this information when they receive their funding decision.

On 29 October 2020, the Australian National Audit Office (ANAO) published a report on the Decision-Making Controls for NDIS Participant Plans (the Audit).

The Audit objective was to assess whether the NDIA has appropriate controls to ensure supports in participant plans are ‘reasonable and necessary’.

Audit Criteria

The ANAO adopted the following high level audit criteria:

Has the NDIA established and implemented appropriate policies and processes to ensure supports in participant plans are ‘reasonable and necessary’?
Is there appropriate oversight to ensure supports in participant plans are ‘reasonable and necessary’?

The conclusion of the report stated:

The NDIA does not yet have appropriate controls to ensure supports in participant plans are ‘reasonable and necessary’. The report further stated:

    while the NDIA had established largely appropriate policies and processes for participant
    planning, the implementation of the policies and processes did not provide the NDIA with
    appropriate assurance that supports in participant plans are reasonable and necessary.”

        It also stated:

    the NDIA does not yet have appropriate oversight mechanism in place to ensure
     participant plans are reasonable and necessity. The NDIA has established some
   frameworks for oversight and control of decision making for participant plans; however,
     to date this is not systematically leading to enterprise wide actions for improvement and
   compliance in decision making.

I submit that the NDIA needs to make changes as to how it determines its funding decisions. It needs to be more open and transparent, and it should be clear to participants when receiving their plan what supports have been funded and what supports have been rejected and why.

Review Process

At review participants receive a phone call from the NDIA. Although I understand that not all participants actually get a phone call. In the latest phone call, I had with a review officer of the NDIA, the officer had not even read any of the allied health reports before contacting me. This meant that no discussion could be made as to why the NDIA rejected some of the supports requested, I was then told that their decision would be delivered within 24 hours. How could a review officer be able to read all the numerous reports, consider the evidence and write a decision letter all within 24 hours? No surprises the decision came back as upholding the original decision. We were not afforded a proper opportunity to address any of the NDIA’s concerns and we were not given the reasons for why certain funding supports were rejected. This is complete lack of procedural fairness.

Participants are only provided reasons for why supports have been rejected after the review decision, at this point a participant’s only recourse is to apply to the AAT. If the government is wondering why there has been such an increase in applications to the AAT, this is why, because the review of the reviewable decision process is effectively void because the decision is clearly made prior to any communication with the participant. This process lacks procedural fairness and does not afford the participant a right to be heard. It also suggests that the review officers are not being impartial in their decision making. When we spoke with the review officer and asked under what criteria of section 34 of the NDIS Act was the supports rejected, we were told to “go to the AAT” and that she would not discuss the legislation or the reasons with us.

Improvements

When delivering its funding decision, the NDIA should be providing participants with reasons as to why they have made their decision and on what evidence it relied upon in making its decision and also on what grounds certain supports were rejected. The NDIA could also outline what further evidence a participant could provide at Review (if they would like to go to review) so that a proper discussion could be had with the NDIA at that stage.

Also, a review officer should have already read all the reports prior to contacting a participant so that a full and frank discussion can be had, and the participant is allowed an opportunity to present submissions on the reasonable and necessary criteria that the NDIA are relying upon to reject the supports requested.

If these few things were done again not only would this mean less cases going to the AAT, it would also lead to participants feeling heard, having the opportunity to properly address the NDIA’s concerns and to gather any further evidence required before having to resort to the AAT.

Evidence/ Allied Health Reports

The system as it stands needs a major overhaul. There is a disconnect between Allied health providers and the NDIA. Allied health providers provide reports and give quotes concerning what funding they believe a participant requires due to their level of disability.

The issue a lot of participants face is that they are being told often not until AAT that they require more reports or the reports provided are insufficient. Why does the NDIA not communicate with the Allied health community on what it requires in order to approve funding? There should be audits done on the reports that providers are producing as to whether the quality of the report meets the standards required by the NDIA.

Participants who often have various disabilities themselves are relying upon the reports provided by Allied health providers and they often do not have the capacity to know if the report addresses all the necessary criteria required by the NDIA. Again, this would solve a lot of double handling because what is happening to participants now is that they often do not know what is wrong with their Allied health reports until they go to AAT.

At the AAT the lawyers for NDIA submit mountains of extra questions directed at the Allied health providers to be answered and they request more and more reports. I know people who have been at AAT for two years being subjected to multiple information requests by the NDIA’s lawyers.

Again, if the NDIA was transparent with what it requires and had open communication with Allied health providers as to what evidence it needs to see in a report for it to approve funding then we would not have all this wasted time going through the review process and then onto the AAT.

AAT

I have already alluded above to some of my issues about the AAT. I understand that the government has scrapped the AAT and is putting a new process in place. Just to provide some feedback on what families and those with disabilities are currently facing at AAT in the hopes that this will be avoided with the new process.

Law Reform

Lawyers for the NDIA supply a statement of issues often not until the day of the first case conference which means that a participant does not know which issues are in contention and therefore cannot meaningfully participate in the first case conference. This ends up being a complete waste of time and resources for all parties because basically a registrar just orders the participant to answer the questions provided by the NDIA for the next case conference. Then another case conference is set for some two months later.

This is exactly what happened in our case: we received the statement of issues just prior to the case conference so there was no opportunity to prepare or to go back to our allied health providers to prepare any further evidence prior to the case conference.

What I have been told by others is that they have gone through some five or six case conferences and often at the end they are given what they originally requested. Others have given up due to the length and stress of the process. I know some participants who have been at AAT for two years.

Model Litigant Policy not being adhered to

The NDIA lawyers are not adhering to their model litigant obligations and there appears to be no recourse for participants to hold the lawyers accountable for such reprehensible behavior.

The Model Litigant Policy is designed to provide guidelines for best practice for government agencies in civil litigation matters. It is founded upon the concepts of behaving ethically, fairly and honestly to model best practice in litigation. Under the policy, government agencies are required to:

Deal with claims promptly
Not take advantage of a claimant who lacks the resources to litigate a legitimate claim
Pay legitimate claims
Avoid litigation
Keep costs to a minimum, and
Apologise where the State has acted inappropriately.

This is not what is occurring at AAT. The NDIA lawyers ask numerous questions and push for more and more case conferences; often the information they are requesting has already been answered by the participant. My only conclusion for this behaviour is that the hope to wear participants down so that they either give up or they accept less than what they need.

This is in breach of the Model litigant policy. Cases at the AAT should not be litigated using the adversarial approach and I implore that the government addresses such behaviour and holds its lawyers accountable for how they act in cases.

Complaint process

The process for participants to make complaints about the NDIA is unsatisfactory. We are told to email enquiries and submit our complaint online. After our disastrous phone call with the review officer we lodged a complaint with the NDIA, we did not receive any acknowledgment about our complaint and it has seemed to have vanished into a blackhole. We have since

learned that many complaints are closed without any contact with the participant making the complaint.

There is no transparency on how complaints are handled or if indeed those at the NDIA whom the participants are complaining about get held accountable for their actions.

We have since submitted another complaint over the phone with the NDIA concerning the FOI process, we received an automated email saying the NDIA would respond within 21 days, it’s been over 21 days and we have yet to receive any response from the NDIA.

The government needs to do better and could learn from how the Australian Financial Complaints Authority (AFCA) deals with complaints.

The NDIA should acknowledge all complaints, and actually stick to timeframes, someone from the NDIA should be calling participants who have complained and should outline the complaints process and all avenues that a person can exhaust in order for their concerns to be heard. They should also be providing updates on a persons complaint and should not be closing complaints until they have spoken with the participant and provided an outcome letter of the complaint.

Also to ensure fairness there should be an external complaint review officer who participants can request check to see whether the complaint was fairly handled by those at the agency.

FOI requests

We submitted an FOI request in October last year. Legislation provides that the NDIA has 30 days to provide the information requested or to supply a reason as to why the information cannot be supplied.

Right before the deadline we received an email requesting a one month extension. We declined the extension however received no further response. The date of the extension requested by the NDIA came and went with no further response from the NDIA.

We lodged a complaint with the NDIA which it said it would respond within 21 days, however we have received no response.

The Information Commissioner has said that we need to go to OAIC. We have lodged a complaint with OAIC. We are coming up to five months since our FOI request with no end in sight.

We have spoken to many participants in the same situation with us. Some are further along in the process and have received communication from OAIC saying that it has received no response from the NDIA, so it has deemed the participants request as a refusal.

A lot of us are requesting this FOI information due to concerns we have about how the NDIA has made its funding decisions and would like to present this information at the AAT. It appears to participants that the NDIA has something to hide and are purposefully trying to prolong and simply not provide the information requested under the FOI request which a participant is entitled to. This is a breach of the Freedom of Information Act 1982.

The current FOI team at the NDIA needs a major overhaul. It is failing at abiding by the requirements set out in legislation. There is lack of communication and transparency in this process.

Provider Cancellation Policies

Another issue we have come across is the current cancellation policy allowed by the NDIA. Most allied health providers have now instituted 3-day cancellation policies. With a young child who could become sick within 24 hours of a scheduled appointment 3 days seems to be too much time.

I understand that providers have costs they need to meet however a 24-hour cancellation policy should be sufficient. Most participants are barely making their budget stretch to accommodate their needs and having to pay for a full appointment where a participant has not cancelled before 3 days really takes a bite out a participants plan.

In reverse allied health providers often cancel last minute. We have received text messages sometimes 10-30 minutes before an appointment to cancel. Often we have to arrange time off work etc to take our son to these appointments and to have last minute cancellations without any repercussions for the allied health providers seems unfair.

Fee charging

What we are finding when going to allied health providers is that every provider is charging the maximum under the NDIS price guidelines and sometimes even more. There does not seem to be any checks in place as to how qualified the people providing the services are versus how much they should be entitled to charge.

So there could be a new graduate charging the same amount as someone with 20 years’ experience. There needs to be more regulation over providers and their charging and perhaps the fees able to be charged should be linked to experience and qualifications.

Survey

A suggestion we have for the NDIA is that they should be giving the participants options to participate in surveys concerning their interactions with the NDIA. This would allow the NDIA to capture data on where it is failing participants and what can be done to improve their processes.

Intake form

Covid is less of a concern now so LAC’s need to be going back to meeting with participants in person and at their home where appropriate. The NDIA is becoming less personal and distancing itself away from the participants that they are meant to serve.

If a LAC is able to meet with participants in person, they would be able to get a greater understanding of a participant’s needs and struggles. A simple questionnaire of whether the participant needs extra help etc – it could be that they have an intellectual disability, or difficulty in understanding what their rights etc are. These extra needs should be identified right at the planning stage so that the LAC can refer the participant to any extra support they may need in helping them to access the scheme, to understand the NDIA etc.

Funding of Advocates

The government needs to be funding more advocates. Now most advocates are not taking on more cases and many participants are unable to access legal aid. We have participants and a lot with severe disabilities, who are under immense pressure trying to also navigate the AAT

Concerns Regarding the Process Faced by Participants Dealing With the NDIA

Solo. The NDIA are turning up to the AAT with lawyers and even Barristers representing it. There is a huge disparity in power between the parties and many participants give up on the process and lose out on much needed supports because they are unable to advocate for themselves. The NDIA need to remove the lawyers from the process as much as possible. The lawyers are not adhering to model litigant obligations, they are dragging out AAT processes c causing huge stress to those in the disability community. Not to mention the huge cost in fees the NDIA are paying these lawyers. I saw that the NDIA had paid Minter Ellison in the last six months about 4.5 million in fees! This is money that could be going to support participants and instead are being paid to corporate law firms whose sole objective is to make as much money as it can with their fee charging. Their objective is not to resolve complaints but to make as much money as possible.

In conclusion I am expressing concern about the whole process faced by participants when dealing with the NDIA from the LAC’s to the review process and AAT.

As a society and as a government we need to do better by those with disabilities. I am frustrated with the LAC’s inability to listen to participants and provide adequate support. I have concerns about LAC qualifications and the lack of input from participants during the submission process. The review process does not allow participants to have adequate input prior to the decision and does not provide clear reasons for the decision. If these issues were addressed, fewer cases would need to be reviewed.

I would welcome an opportunity to discuss my concerns with the Commission and the NDIA directly.

Kind regards