Submission to the Joint Committee on the NDIS on planning
Dr Darren O’Donovan1
Senior Lecturer in Administrative Law,
La Trobe Law School
(h) the review process and means to streamline it
Recommendation: Amend section s 100(6) of the NDIS to ensure cases of unreasonable delay in determining internal reviews can be taken up by Administrative Appeal Tribunal
The Committee should recommend immediate action to restore participants’ right to apply to the Tribunal in case where internal reviews of funding having been subjected to unreasonable delay. Recent decisions of the Administrative Appeals Tribunal, LQTF2 and KRBG3 have highlighted that an ambiguity in the Act’s drafting may mean that the tribunal is unable to intervene in cases of severe delay. The Act imposes a duty to reach a planning review decision within a “reasonably practicable period of time, but participants have lost a primary means of enforcing this. An amendment to reflect the initial promise of the NDIS Act should be urgently implemented.
The author wishes to underline the need for immediate action on the AAT jurisdiction, prior to the Review of the NDIS Act. The comments of Deputy President Forgie in the recent matter LQTF need to be underlined:
“In giving these reasons, I have set out the steps that must be followed in seeking review of a statement of participant supports and review of a participant’s plan. I have done so in order to illustrate the complexity of the review process provided for in the NDIS Act. It is a process that I respectfully suggest is often too complex for a participant to navigate with any ease, let alone with any confidence, and that is not conducive to the NDIA’s being able to respond quickly to the needs of participants. It is a process that may leave both the participant the NDIA disagreeing about the proper characterisation of the decision that has been made.”
While the approach of the Tribunal may shift in future cases, the efficient action is to restore the right to access the tribunal as a circuitbreaker in cases of unacceptable delay. The process is best achieved by cloning the language of section 56 of the Freedom of Information Act 1982 (as amended).4
Recommendation: Provide the Tribunal with a direct power to extend the review date where an appeal is on foot
1 I am the co-author of the AAT Decision Digest – a plain language resource outlining recent NDIS tribunal
decisions, which may be of some assistance to Committee members in their work:
https://www.latrobe.edu.au/lids/resources/aat-ndis-decision-digest
2 [2019] AATA 631
3 [2019] AATA 144
4 See the reflections of Gray J in Bienstein v Attorney General [2009] FCA 1501 (Bienstein).
The recent case of Williamson underlines that the extremely complicated nature of the tribunal’s ability to extend a plan while an appeal is before it.5 Essentially, Deputy President Forgie has identified remit for reconsideration under section 42D of the Administrative Appeals Tribunal Act as the only option to prevent plans elapsing while an appeal is on foot.
This “tactic” is however, reliant upon Agency’s ability to promptly implement a pragmatic solution and communicate. I would refer the Committee to the Full Federal Court matter of SSBV, where, while refusing to issue any order, the Court flagged its confusion at the precise status of an agreed plan resolution.6 Participants would benefit from an amendment which puts its ability to secure the continuation of a person’s funding while they undertake an appeal beyond doubt
(f) the incidence, severity and impact of plan gaps;
Recommendation: abandon any use of expiry dates in NDIS plans, write them to function up until review outcomes are implemented.
It is important to note that the notion of a “plan gap” is a product of Agency practice not the legislation. The author prefers an approach which recognises the reality of inherent delays in the review process, usually reflecting evidential and secondary quoting processes.
There are sustainable solutions available, for instance removing so called “expiry dates” from plans and the computer system. NDIS plans should contain one date: the review date. This is the critical date defined by the legislation. By law, however, NDIS plans function until they are replaced following this review. Thus, as Deputy President Forgie recently found in Williamson:
“It follows that, if there are any funds remaining unspent after the review date has passed, a participant should be able to have access to them for purposes set out in the statement of participant supports. The plan is ongoing….In reaching my view, I note the practical difficulties raised by the Agency. One is that, to access funding for supports by way of the participant portal, it is necessary to change the review date in the NDIA’s computerised system. The system does not generally allow for a participant to have access to funding after the review date has passed although the Agency continues to process requests to have access to funding it has received before that date. The reason why the Agency has set up its system in this way stems from its concern that a change in the review date would mean that it had decided to replace the plan.”7
This decision thus underlines the manner in which the computer system has, to an unhealthy extent, driven the administration of timelines under the Act. Reasonable and necessary supports can and should be expressed in pro rata terms: e.g. 20 hours weekly, three sessions monthly etc. It is not incompatible with the NDIS Act for supports to be written in such timeless terms, contingent upon re-evaluation following review. The Committee should explore the Agency’s views on this matter. In support of my view I would instance the recent comments of Deputy President Forgie in Williamson:
5 [2019] AATA 2944
6 Full Federal Court [2018] FCAFC 197 7 Williamson, Paragraphs 10-11
“…in the submissions made on its behalf, the Agency has referred to decisions made by variously constituted Tribunals in which reference is made to an “expired plan” or to a participant’s plan’s “expiring” when the date or circumstances for review have passed. None of the decisions referred to analysed the point or gave any reasons as to why the CEO’s failure to conduct a review as required led to the participant’s plan’s having expired. On looking further into the matter, it seems to me that the use of the word “expire” or some form of it is not appropriate. It is not a word that is used in the NDIS Act and should be avoided for that reason. More importantly, a failure by the CEO to perform a statutory duty under s 48(5) does not mean that the participant’s plan is of no effect of that it ceases to be in effect. On the contrary, it seems to me that s 37 makes it clear that it does not…”8
This view was also adopted by Deputy President Constance in the SGHG decision.9
It is time for a first principles reorientation of the Agency’s approach to the length of plans. The emphasis on plan expiry should be moderated as the scheme has now rolled out, and the importance of certainty is underlined by the Act.
f) the incidence of appeals to the AAT and possible measures to reduce the number;
Frontline Agency decision-makers are faced with the toughest of mandates in administrative law: the NDIS Act requires them to be consistently individual. With respect, I believe that a key way to reduce appeals is to build a greater culture of internal criticism and reflection
within the Agency. I believe that existing Tribunal case law provides a road map to
improvements in frontline Agency practice. I also believe that earlier communication of the
reasons underpinning funding levels is essential. I am concerned that an emphasis on
standardisation or policy prescription may blur the individualised, contextual nature of NDIS planning decision-making.
Recommendation: take immediate steps to better align frontline policy with existing Administrative Appeal Tribunal decisions and the legislative requirements.
Unfortunately, published tribunal appeals have underlined some recurring oversights in the approach to the legislation and design of guidelines by the Agency. A key step to reducing appeals is to redesign frontline policy to better capture the judgments required by the legislation and the lessons learned from existing tribunal caselaw. The author cannot provide an exhaustive account but would underscore the need to refine and update the current operational guidelines to reflect tribunal caselaw.
The troubling nature of the current operational guideline for transport funding has been canvassed regularly. There are strong arguments that this policy is unlawful for the manner in which it prescribed transport levels may operate to cut down the full and free application of the
8 Paragraph 28 of the Williamson and National Disability Insurance Agency. Emphasis added.
9 [2018] AATA 674
relevant statutory criteria. It is wholly unwelcome that the guideline purports to permit one solitary, scripted exception to level three funding.10
Regardless, the author wishes to underline that the current transport guideline is now regularly disapplied by the tribunal in its appeals handling. In a sequence of cases, David,11 Perosh12 and Ewin,13 the tribunal has pushed past the policy or, in the Ewin decision, specifically warned against reliance upon it. Finally amending these guidelines would be a great way how compliance can be designed in from the start in frontline Agency decision makers.
Other policies also create concern for the manner in which they create hot houses for error, by misdirecting frontline decision-makers as to the factors to be considered. Other recent decisions have also called out the use of overly categorical distinctions by Agency decision makers. In Sing, Member Parker warned the Agency that its categorical ban on funding competitive and representative sport was an unacceptable policy given the wording of the legislation.
The cases of Milburn14 and McKenzie15 illustrate the unfortunate and recurrent tendency for the Agency to adopt overly general positions describing items as “day to day living costs”. In Milburn the tribunal underlined that gym membership can be NDIS funded where the need for it relates to the person’s disability. In McKenzie, a request for replacement air conditioning was found to be fundable by the NDIS as the person needed it due to disability. These decisions underline the need for all operational guidance to underline the need for in depth engagement with the underlying reason a support is required by the person.
The author also notes that the case of Burchell16 relating to swallowing supports has underlined the manner in which COAG policy outputs have drifted off the legislative requirements and produced poorly drafted frameworks.
Recommendation: Ensure greater transparency regarding the use of actuarial or financial modelling in informing the “value for money” test for funding.
In the author’s view one of the most significant drivers of appeals is the tendency of plans to draw upon or reflect opaque financial judgments. The Agency should place its justifications for not publishing the key cost/benefit logic underpinning its “reference packages” or “funding levels” on the public record. Until there is greater visibility of how cost/benefit is pitched by the Agency, section 34(c) value for money test will be accompanied by a “ghost in the machine” dynamic. The idea that the Agency has not approached the matter with appropriate investment logic has driven many successful appeals.
10 While the Full Federal Court decision in G v Minister for immigration might be thought to rule out the “striking down” of the police, it may not suffice unless the guideline is amended to permit greater openness to exception
11 [2018] AATA 2709
12 [2018] AATA 980
13 [2018] AATA 4726
14 [2018] AATA 4928
15 [2019] AATA 3275
16 [2019] AATA 1256
The Agency’s approach to the tabling of actuarial evidence relating to financial sustainability before the Tribunal is inconsistent. In McKenzie or the early intervention autism case of WKZQ 17 it does not appear. In cases where it does appear it has been criticised as not being probative in the circumstances at hand: see WRMF and National Disability Insurance Agency.18
Ultimately, this represents one aspect of a broader theme: frontline decisions or internal review outcomes written by the Agency often provide too little narrative outlining the judgment that has been struck. Unfortunately, participants and their advocates have to rely on the production of tribunal documents, conciliation process or hearing evidence to get a clear outline of position. The Agency also needs to publish its operational documents in a far more proactive and systemic manner.
The Agency might argue that some appeals reflect participants’ misunderstanding of their plans. This reflects what it sees as confusion about whether an item is funded, because there is greater flexibility in the plan than the person appreciates. With respect, this line needs to be advanced with great care and sensitivity. Again there is an imperative for the Agency to communicate its internal language, its understanding far more effectively, and in a more timely way. The Agency also needs to consider the model litigant guidelines. It should attempt to table key reports at an earlier stage.19
j. the circumstances in which plans could be automatically rolled over Firstly, the author would not support the principle that the current legislation permits the “rolling over” or ad hoc extension of plans. I would support the view of Deputy President Forgie in Williamson that an NDIS plan cannot be varied by the Agency outside of successful Tribunal appeal or remittal for reconsideration. It functions until it is replaced.
The Act is straightforward in the state of satisfaction required to exist before plans are created. The author would express concern that some ad hoc tactics e.g. 3 month bridge plans, interim plans with generic funding levels, already represent questionable and unwelcome departures from the investment logic underpinning the legislation. I think that the terms of reference proposed by the Committee is best delivered upon by targeting how the ICT system is driving the practical “expiry” of plans.
17 [2019] AATA 1480
18 [2019] AATA 1771. 19 This is evident in a number of cases e.g. Ditchfield v National Disability Insurance Agency, at para 99.