NDIA Accountability Project

Submission 41 — AED Legal Centre — Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability

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Suite 4 Level 9,276 Finders Street, Melbourne VIC 3000

PO Box 236 Flinders Lane VIC 8009

Tel: 03 9639 4333    Fax: 03 9650 28336l6aed                                                                                     email: noni.lord@aed.org.au LEGAL CENTRE   JUSTICE FOR PEOPLE WITH DISABILITY                                            web: www.aed.org.au

Liability limited by a scheme approved under Professional Standards Legislation

2011 LIV Community Lawyer of the Year Award  I 2013 Tim McCoy Award  I 2014 HESTA Social Impact Award

2016 National Disability Award - Excellence in Justice and Rights Protection

Submission to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability

Public Hearing: NDIS and Service Providers

14 April 2021

Prepared by: AED Legal Centre

Funded by the Australian Government through the

Department of Social Services

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Introduction

AED Legal Centre is a specialist Community Legal Service operating throughout Victoria that provides legal assistance, education and advocacy to people with disability who experience disadvantage in education and/or employment. It is the only community legal centre in Australia that specialises in disability discrimination within education and employment.

The Centre was established in 2008 as a specialist community legal centre with moneys from the Australian Government. AED Legal Centre is funded by the Department of Social Services (DSS) under the National Disability Advocacy Program (NDAP).

Additionally, we have a National Disability Insurance Scheme (NDIS) Appeals Program where we:

  • provide legal representation and advocacy for NDIS participants who are seeking an internal review of a National Disability Insurance Agency (NOIA) decision or an external review of an NOIA decision at the Administrative Appeals Tribunal (AA T); and

  • provide legal representation and advocacy for people with disability seeking access to NDIS, either through an internal review or external review of an NOIA decision denying them access to NDIS.

Our NDIS appeals lawyer, Ms Ella Casey, together with our Principal Legal Practitioner Ms Kairsty Wison, have extensive knowledge and experience relating to people with disability and their interactions with NOIA as well as service providers.

We are also funded to assist and support individuals in making submissions to the . ,Disability Royal Commission for its investigation. We have delivered individual advocacy support for individuals affected by the Royal Commission and provided our clients with an opportunity to share their stories with the Commission to investigate.

AED staff.  '  have a combined experience of over 40 years in dealing with pathways and

barriers to open employment for people with disability. We feel qualified to express our views based on our extensive experience. For this reason, AED Legal Centre would

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welcome the opportunity to provide evidence in any upcoming Public Hearings regarding NDIS.

In this submission we will include a discussion regarding the issues faced by people with disability relating to NDIS. We will also field our recommendations for how NOIA, NDIS and service providers can improve to allow appropriate access to people with disability.

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Issues of Accessing the NDIS and Funding

There are a number of issues that prevent people with disability from accessing NOIS and/or NOIS funding for reasonable and necessary supports once they are a participant. These issues consist of:

A) Unreasonable and Unnecessary Delay at the AAT; i. From our experience, we have found on many occasions that the motivation and conduct of NOIA is to delay resolution, where they give up and do not have the energy to continue battling for the supports that their own treating practitioners have recommended. ii. This unreasonable delay by NOIA and their lawyers directly affects our clients’

during an AAT proceeding. We have raised this issue and our genuine concerns to NOIA’s lawyers in an effort to prevent delays, however this is often futile. iii. We have found that NOIA’s lawyers will request information that is already in their possession, by seeking additional evidence at an late stage, , or seek adjournments or extensions of time when a sensible settlement should have been reached. iv. Further, we have found that after expending considerable resources responding to NOIA’s requests, as well as raise our concerns to prevent delays where possible, NOIA will often give way at the last moment.

v. We have also found that when informing clients that NOIA is still unwilling to change their original decision or resolve the dispute after sometimes twelve (12) months at the AAT, and explaining that the matter may proceed to a substantive hearing, clients often express doubts in continuing their matter. This is because the toll it has taken on them has become too great. This is understandable, given the process of continually justifying basic disability-related supports to NOIA representatives, who are sometimes inexperienced or unfamiliar with disability, can be exhausting, These prolonged legal

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proceedings further compound the feeling of being disempowered and marginalised, and cause considerable trauma. vi. The unnecessary delays experienced at the AAT in itself clearly compromises the physical and mental health of our clients while waiting for NOIA to resolve the dispute and either accept access to NOIS or fund a requested support. ii. In light of our experiences outlined above, it is often apparent that NOIA contravenes the spirit of the following principles:

  1. Rule 2(a) of the Commonwealth’s Model Litigant Obligations, pursuant to Appendix B of the Legal Services Directions 2017 (Cth), which outlines the obligation to deal with claims promptly and not to cause unnecessary delay in the handling of claims and litigation; and

  2. Section 33(1 )(b) of the Administrative Appeals Tribunal Act 1975 (Cth),

which states that in a proceeding before the Tribunal, the proceedings shall be conducted with ‘as much expedition’ as the requirements of the Act and a proper consideration of the matters before the Tribunal permit.

v. Whilst we regularly raise our concerns and question NOIA’s compliance with its Model Litigant Obligations, given the nature of these Obligations we have no tangible way of enforcing them during an AAT proceeding. This is frustrating as we can see an example of

NOIA not acting according to their                   but we have few mechanisms                            ■•lobligations,

available to address this.

B) General delays and communication difficulties with NDIA i. The unreasonable and unnecessary delays we experience on the part of NOIA at the AAT extends to our general communications with NOIA. ii. For example, we have often submitted plan review requests or change of circumstances forms to the generic enquiries inbox of NOIA, and despite alerting NOIA to the urgency of our client’s request in our correspondence i.e. client experiencing domestic violence, we often receive no outcome or response. This has lead us to have to write to the CEO’s office just to obtain a decision. iii. We have also faced further delays when contacting NOIA on our clients’ behalf. Whilst we advise that we are instructed to act for our client, we are often still met with continual requests of evidence of our client’s consent. This means that we are refused the opportunity to speak directly with NOIA, even though we have clearly demonstrated that we have been specifically instructed to act on behalf of our clients in their dealings with NOIA. iv. Further, NOIA representatives also refuse to provide direct contact numbers. For example, when an internal review decision is made, the delegate of NOIA may leave a voice mail with our office but will not leave a direct phone number. This Page 5 of 14

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creates further delays in progressing our client’s matter. We find that especially as a Community Legal Centre, this is not a sound use of our limited resources and time, especially since we are only funded for one lawyer to run ND IS-related matters.

C) Lack of Advocacy for internal reviews and external review (AAT) proceedings i. For many people, the internal review and external review process can be intimidating and overwhelming, and they require an experienced and trusted representative to assist. ii. There are few advocacy -organisations to assist Applicants with internal review processes and AAT proceedings, and only three (3) organisations offering free

Legal Service and Victorian Legal Aid, which all generally have waiting lists due to limited funding. Thus, people who cannot find an advocate or lawyer, and do not have the capacity to submit and internal review alone or self-represent at the AA T due to their disability, are faced with an immense barrier to rectify the outcome of a potentially incorrect NOIA decision. iii. Further, we are aware that many participants may not seek assistance from AED Legal Centre or other organisations as they do not have the knowledge, capacity, resources or ability to do so. In this way, there are likely to be many Victorians that do not make enquiries with an advocacy or legal organisation and unfortunately fall through the cracks. iv. Further, due to the limited resources of the existing organisations offering legal representation and advocacy, we have found that clients have had to rely on their NDIS Support Coordinators (SCs) as advocates when going through the internal or external review process. This is problematic based on two reasons, firstly due to the fact that their NDIS funding would erroneously and inefficiently be spent on SCs, whose funding purposes do not pertain to providing advocacy for NDIS participants. Secondly, a clear conflict of interest arises when a SC provides advocacy for their clients, given that SCs are funded by NDIS and are likely to gain a financial benefit from the outcome of the internal or external review. In this way, as a matter of principle, SCs should not be advocating for NDIS participants. Such conduct is inconsistent with the NDIS Code of Conduct to minimise conflicts of interest, and does not reflect the fundamental purpose and role of a SC.

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v. It is our recommendation that in order to address this issue and prevent NOIS participants from having to rely on their SC for advocacy, additional funding should be provided to the existing organisations offering advocacy and legal representation in order to increase client capacity.

D) Biased/Flawed Independent Assessments (IAs); i. We hold significant concerns about the Federal Government’s proposed changes to how people with disability will access the NOIS and NOIS funding. Under the proposed changes, all future NOIS participants will have to undergo a mandatory IA in order to access NOIS. Existing NOIS participants will also be required to undergo an IA before they receive their new NOIS plan. ii. From our experiences at the AAT it is apparent that the NOIA often brief the same experts that they are familiar with, and this undermines their purported independence. Participants already live in fear that every year, the funding in their NOIS plan may be significantly reduced. Therefore, we consider that the proposed introduction of IAs more broadly is only going to provide NOIA with an additional mechanism to further reduce the vital disability supports that had previously been funded. In other words, if NOIA is unwilling to fund a particular support, it can brief an expert that it knows does not generally recommend that particular support, to give so-called independent advice, in order to ensure that the report is in favour of NOIA’s position. iii. Ultimately, we are concerned that the introduction of IAs will increase the demand for legal advocacy/representation and that we will not have the funding to manage this increase. vi. The quality and reliability of IAs in general has already been questioned by the AAT. NOIA have been known to fly Occupational Therapists (OTs) from Queensland to Melbourne, when there is clearly an abundance of OTs in Melbourne that could have been briefed at less expense. We question why NOIA would prefer to transport a medico-legal OT from Queensland, whom they are familiar with, when common sense suggests that a Melbourne-based OT is more appropriate and cost effective. Further, an OT from Queensland may not be aware of the resources or supports that are available in the Melbourne area. Two AAT decisions discuss this:

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  1. Amel and National Disability Insurance Agency [2019] AATA 4778 – vii. Further, in effect, IAs will sever participants from their long-standing and long-term treating professionals and place the power to determine both NOIS access and funding decisions in the hands of strangers who have met them for a limited amount of time, as little as three (3) hours, in comparison to their usual treating professional, as evidenced by the cases above. This will also cause difficulty to ensure that individual complexities are captured while trying to establish a comprehensive and accurate picture of a person’s needs and circumstances. viii. From our consultations and discussions with NOIA representatives, it is our understanding that NOIA does not intend to introduce a specific review process for mandatory IAs. We have been further advised that the usual review process of NOIA decision will be the only avenue to review IAs, meaning that the person with disability seeking access to NOIS or NOIS participant will have to:

  2. Attend the IA;

  3. Wait for the IA report, and possibly request a copy of the report if they are not given it;

  4. Wait for the decision to be made which reflects the report;

  5. Lodge an internal review request within three (3) months, if the decision is incorrect;

  6. Wait to receive the internal review decision;

  7. Lodge an AAT application within 28 days; and

  8. Spend a considerable amount of time i.e. months or years, at the AA T seeking to rectify the incorrect decision.

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ix. We consider this an unreasonable length and inefficient process that no person deserves to go through in order to rectify the results of a potentially deficient IA report. If the report includes blatant errors about the person’s disabilities or circumstances, or makes inappropriate recommendations that the person’s own treating practitioners disagree with, then the burden should not be on the person with a disability to follow the stressful and lengthy review process required to rectify this. Instead, time, resources and expense could easily be saved if the initial report

was accurate                 or if NOIA gave proper weight and consideration to         •••■-1,

the evidence from the treating practitioners.

x. Further, we question the necessity of this proposed new IA process, when the assessors are likely to be contracted to conduct assessments for NOIA and it is inevitable that the outcome of their report is likely to be favourable to NOIA.

E) Early resolution at the AAT; i. AAT proceedings are often a very lengthy process that can involve two (2) to four (4) case conferences, a conciliation, several directions hearings and a substantive hearing of two (2) to five (5) days. It can often take over twelve (12) months from the date the AAT application is lodged until the proceeding is finally resolved. As such, it is important that all efforts are taken by both parties to resolve the issues in dispute as soon as reasonably practical. In other words, having the opportunity for early resolution is crucial for our clients as it can obviate the need for case conferences, conciliation and a hearing and also ensures that they receive the supports they need as soon as possible. ii. We understand that if the Applicant is self-represented or represented by a non­ legal advocate, they are generally approached by an NOIA representative in an effort to discuss and possibly resolve the matter after they lodge their AA T application and well before the first case conference. These discussions and negotiations can be highly successful and lead to a satisfactory resolution of the proceeding before or shortly after the first case conference. iii. Lengthy AAT proceedings can create significant stress for Applicants, and a prompt resolution is often vital for the their mental and physical health and wellbeing. However, our experience is that if NOIA are given notice that an Applicant is legally represented at the AAT, they generally do not contact the Applicant’s representative until it files the Statement of Issues shortly before the first case conference. Further, if we, as the Applicant’s legal representative, attempt to contact NOIA representative with carriage of the file prior to a case conference, we are often advised that they cannot discuss the matter with us until a lawyer is appointed. However, we find that NOIA do not appoint a lawyer until soon before the case conference, and if appointed earlier, then the lawyer may not be sufficiently familiar with the matter.

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iv. In this way, our clients are often not afforded the opportunity of early resolution of their AA T application and are therefore somewhat disadvantaged by being legally represented. In particular, we are unable to properly progress our client’s matter as we do not know what additional evidence or information NOIA may require. In other words, if the Applicant were not legally represented, their matter may already have resolved in the intervening period between the lodging of their application and the first case conference. Further, given that the AA T is currently listing the first case conference approximately two (2) months or more after the date of the initial application, being denied early resolution is especially problematic and concerning.

Case Study

We seek to further demonstrate the issues noted above by way of the following examples:

Unreasonable and Unnecessary Delay at the AAT:

. Our client had self-funded and was simply seeking funding for the annual maintenance costs, which was around $3,000.00. NOIA engaged a large commercial firm to represent them at the AA T and attended case conferences with several lawyers present, which in itself would have accumulated legal cost that exceeded what we were seeking. It is worth noting that the presence of several NOIA lawyers at a supposedly informal case conference at a Tribunal enforces and perpetuates an already substantial imbalance of power between our client and NOIA. This is not conducive to fostering positive discussions and efficient resolution of disputes, and also works to intimidate our clients. Further, this conduct by NOIA appears to be an improper and unfair way to conduct effective alternative dispute resolution, and is incongruent with its model litigant obligations.

Centre to advise that they agreed to fund the maintenance costs               our client                                    ■■■■that

was seeking. NOIA continually raise ‘value for money’ when considering whether a support is reasonable and necessary, however we see from this example that NOIA are willing to spend another five (5) weeks in legal costs instead, which clearly cannot be considered value for money.

Example 2 - Our  client was non-verbal and had complex  intellectual and physical

disabilities. The client required 1 :1, high intensity support at their day program; regular monitoring and intervention for diabetes management; supervision to prevent harm and injury and to enable him to access the community safely; full assistance with feeding and

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meal preparation, bathing and dressing and administration of medication; and prompting to maintain continence throughout the day. The client started with approximately in the original NDIS plan, however, this level of funding was not sufficient to cover the complex supports they required to attend respite accommodation, and allow the client’s single mother to work. After spending - long and unnecessary months at the AAT, and after we prepared for a hearing and briefed a pro bona barrister, the matter was settled for a plan of around a few weeks before the hearing was to commence. Though this level of funding was essential for our client to have a quality of life, this was another example of NOIA causing unnecessary delay and stress. It is these experiences that lead us to believe that NOIA and their lawyers were seeking to delay or prolong the proceeding in the hopes that our client would withdraw from the proceeding before it went to hearing.

Example  3 - From  our  general  experience, we  constantly  raise  that under  the

Commonwealth’s Model Litigant Obligations, NOIA have an obligation to deal with claims promptly and not to cause unnecessary delay in the handling of claims and litigation. However, we often witness:

  1. NOIA representatives attending Case Conferences at the AAT with limited or no instructions, meaning that little or no progress can be made;

  2. NOIA changing its lawyer up to three (3) times during an AAT proceeding, meaning that the new lawyer is unfamiliar with the file and requires additional time to progress the matter;

  3. NOIA representatives failing to adhere to assurances made at Case Conferences, or deadlines in AAT Directions, without any apology or explanation; and

  4. NOIA representatives failing to respond to our calls and return voicemails and emails, requiring us to spend our limited resources continually following up to get responses.

Example 4 - Our client was seeking funding for a powered wheelchair and an increase in support worker assistance, amongst other supports. When agreeing to fund the powered wheelchair, NOIA asked why our client also required support workers to access the community. We had to explain to the NOIA lawyer that due to the nature of our client’s disability, our client physically cannot buy a cup of coffee or a meal by themselves, or go to the toilet without assistance. In other words, though our client may have been able to independently access the community in a powered chair, the powered wheelchair does not obviate the need for supports to meaningfully and practically engage and participate in community activities. It took us around fourteen (14) months at the AAT to obtain the supports our client needed. It should be noted that during those long months, our Principal Legal Practitioner was required to attend our client’s home and drive them to and from appointments due to lack of funding.

Biased/ Flawed IAs: Our client was a palliative child who required assistance with maintaining continence and/or personal hygiene; feeding via a feeding tube; frequent suctioning to prevent aspiration; frequent monitoring of apnoea episodes; full assistance with showering, drying and dressing;

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and full assistance with all social outings and medical appointments. The client’s original NOIS plan was approximately $370,000.00, but they required a plan substantially higher to provide the appropriate supports necessary for a quality of life. We spent around twelve (12) months at the AAT, where we filed considerable evidence from our client’s longstanding treating practitioners. NOIA then engaged an independent OT whom it regularly briefs, to assess our client for around ninety (90) minutes over Zoom. The

OT's  report  included  various recommendations  that  clearly  did  not  align  with  the

recommendations of our client’s practitioners, and demonstrated a lack of experience and understanding of our client’s clinical needs. After we raised the deficiency and limited value of the report, especially given the OT never met our client in person, NOIA decided to engage a new OT. The new OT spent several hours at our client’s home, and her report was vastly different from that of the previous OT. After filing this report, NOIA agreed to fund all supports our client was seeking, as it was clear that the supports were reasonable for our client to live as a child with dignity. In the end, we obtained a plan over one (1) million dollars, which was more than double his initial plan. From this experience, we have reason to be concerned about proposed IAs.

Recommendations

The following strategies need to be adopted:

General Principles and Procedures: o Ensure that the rights of people with disability are upheld while respecting their dignity; o Establish a complete and accurate understanding of the functional abilities of people with “invisible” or complex disabilities; o Ensure that the individualised goals and aspirations of people with disability remain a paramount consideration in the Planning process, meaning they are properly considered, discussed and agreed between the person with disability and the delegate before a Plan budget is created; o Greater involvement for people with disability and their families in all stages of assessment and decision-making; o A comprehensive review of the many significant risks to the safety of participants under the proposed exemption arrangements relating to risk and safety and the assessment being inaccessible or invalid with no ability to review the delegate’s decision to not grant an exception, while ensuring those with the least capacity to engage are not disadvantaged;

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o Ensure significantly increased, ongoing, high-quality implementation supports are made available to participants to understand and utilise flexible Plan budgets safely and effectively; o Better disability training and education for AAT members, especially with respect to their interactions with people with disability who are the Applicant in a proceeding. We have experienced times where our clients have been triggered or offended by inappropriate language or demeanour used by AA T members.

/As: o The prevention of the proposed reforms to Planning and Budgets, especially the proposed mandatory IAs, until careful consideration of the NDIS “Tune” Review recommendations are relied upon to provide context, along with rigorous testing and independent evaluation, as well as extensive consultation with participants and the community; o A robust and transparent evaluation of the current pilot of the new IA process, conducted independently from NOIA and led by experts while being co-designed with people with disability and organisations that support them; o Greater consideration relating to people with disability who may have experienced traumatic, abusive or violent interactions with someone unknown to them when considering IAs from new or unfamiliar assessors; o Full consideration for the individual circumstances of participants and prospective participants in the IA process to ensure relevant information is not omitted; o A proper commitment to equity of access by providing funded assessments by the health professional of the prospective participant’s choice to applicants who request them, or at the least an independent and transparent trial of allowing a person’s existing health professionals to complete assessments; o Establish clear and transparent mechanisms relating to how IAs will be used to generate a plan funding figure, including the human intervention in this process to prevent support gaps or other dangerous outcomes; o Establish clear and transparent mechanisms regarding how environmental factors and other holistic considerations for the support needs of people with disability will be understood, recorded and affect funding, as well as how a change in these factors during the life of a Plan will impact funding.

ND/A Legal Representatives’ Practice and Procedures: o Immediate modification to NDIS policy focusing on early resolution;

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o For legal representatives of NOIA to contact the Applicant’s legal representative in all proceedings within a reasonable time after it receives notice of the AAT application, and at least one (1) month before the first Case Conference; o Exclusive reliance on in-house lawyers (IHL) by NOIA in order to prevent delay and unnecessary costs to outsource legal representation for AA T proceedings. We are of the opinion that external legal firms tend to create unnecessary delays with AAT proceedings since there is an incentive for firms to increase their billable hours. A primary reliance on IHLs would potentially allow for matters to be conducted in a more time efficient manner since it would be in the IHL’s best interests to handle the matter promptly to avoid delays in an effort to keep costs low. In the alternative, then at least better transparency should be provided surrounding how case work related to AAT proceedings is managed by NOIA i.e. since some cases are initially provided to external legal firms at the start of a proceeding, whereas other cases

are initially handled by in-house counsel and then transferred to external legal firms part way through a proceeding.

Conclusion

We acknowledge that there are instances where NDIA’s decisions are correct and their legal representatives demonstrate a genuine commitment to resolving a matter. However, from our general experience, we regularly witness and deal with the issues outlined above, alongside our clients.

AED Legal Centre is hopeful that the Disability Royal Commission will affect systemic changes within NOIA that address the issues that people with disability face in obtaining access to NDIS and reasonable and necessary supports.

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