No jurisdiction of Tribunal to hear claims by service providers for fees in excess of the Plan - Complete Nursing and Home Care Pty Ltd and NDIA [2020] AATA 360

-

Key Points

  • The decision shows the problem inherent to the NDIS of service providers either having to cease services abruptly when the funding runs out, or otherwise absorb the loss. Neither of these situations is ideal.

Facts

CNHC is a registered NDIS provider who provided services to children referred to as XY and BC. CNHC apparently received assurances from XY's father that it would be paid, and between August and October 2017 it incurred $4,363.44 of services that it was not paid for.

In relation to BC, CNHC was asked by BC's mother to continue providing services after the funding in BC's plan ran out. CNHC's experience was that it would be reimbursed by the NDIA for these services, although it would have to provide an explanation to the NDIA for why they were provided. It provided services for a further 10 months. As events transpired, the NDIA refused to pay.

The Tribunal found that it did not have jurisdiction to review the NDIA's decision to refuse to pay CNHC's invoices. The Tribunal noted that its jurisdiction to review decisions was limited to those that are set out in the table in s 99 of the National Disability Insurance Scheme Act 2013 [opens in new window]. A decision to not pay a service provider's invoice is not included in that table. There is also no provision in the NDIS Rules that permits such a decision to be reviewed. Because the decision was not a decision under s 99 of the Act, CNHC had no right to apply to the Tribunal for review.

Analysis

Deputy President Forgie summed up the problem nicely in [3] of the decision:

I recognise that CNHC is in an invidious position.  It has provided services in response to cries for help from XY’s and BC’s parents but it has done so either knowing or at least doubting whether sufficient funds remained in XY and BC’s plans to pay for the services.  Whether CNHC can afford to continue to extend its assistance in future in this way is a matter for it to contemplate.  Kindness is meritorious but participants’ plans are funded on the basis of purchasing services from those who earn their income in providing them.  Whether XY and BC’s parents are, or should, seek review of the statement of participant supports in their sons’ plans is a matter for them.  The Agency too is in a difficult position.  Apart from any particular responsibilities it may have for managing the funding for supports in a particular plan, it has general responsibility for a scheme that must be operated within the parameters of the NDIS Act.  The Agency must have systems that ensure that it is complying with that legislation and ensuring that those who should be paid are paid and that those who should not be paid are not. 
This decision exemplifies a problem with the system of participants' plans. An NDIS participant needs services now. Quite often those services are essential to preserving their quality of life; they may even be necessary to sustain life itself. At the same time, the NDIA will provide a specific amount of funding for a particular support, based on an estimate going forward, usually for 12 months. The specific amount might be enough to cover the support, but often unexpected contingencies arise. Things might take longer, require more man-hours, or simply cost more than estimated. The plan may not accommodate such contingencies. In those circumstances, participants or their supporters have to pay out of pocket to continue the services, or service providers have to be willing to provide these pro-bono. A review of the plan might well result in increased funding, but that process often takes months, even without the need to go to Tribunal. 

Meanwhile, given that the NDIA won't pay CNHC is in the invidious position of having to decide whether to sue XY and BC (or their parents) for debt. For obvious reasons, that is a fairly distasteful outcome.

In my view, there needs to be more done in preparing plans to ensure that services will not suddenly and abruptly cease when the funding dries up. That could take the form of increased amounts for contingencies in participants' plans, or provision being made for emergency applications to the NDIA for extensions of funding for continuation of services. Without this, the problem identified by Deputy President Forgie will continue.

Comments

Post a Comment

Popular posts from this blog

Multiple Sclerosis and funding for air conditioning - McKenzie and NDIA

-
Key Points In McKenzie and NDIA [2019] AATA 3275  [opens in new window] the Tribunal determined that replacement of a home air conditioning system was a reasonable and necessary support for a person whose multiple sclerosis ( MS ) worsened in high temperatures or when the temperature changed. This is a useful decision because it emphasises that social and economic participation for the purposes of s 34 of the NDIS Act can still take place even in one's own home.  The decision also emphasises that whether something represents day-to-day spending that the NDIS will not cover, or a disability support that the NDIS will cover depends on the nature of the disability and its effects on the person. What is a discretionary item for a person without a disability may not be a discretionary item for a person with disability. Facts Mr McKenzie lives in far north Queensland. He has MS. The symptoms of his conditions worsen when his core body temperature rises and when he is expos
Read more

Permanence - NDIA v Davis [2022] FCA 1002

-
Key Points In NDIA v Davis [2022] FCA 1002 [opens in new window], the Federal Court has interpreted the NDIS Rules in a way that requires the NDIA and the Tribunal to take into account, among other things, a participant’s financial circumstances in determining whether a treatment is ‘available’. This is part of the NDIS Rules that deal with ‘permanence’. Facts Ms Davis suffers from a number of conditions, including spondylarthrosis, degenerative impingement of both shoulders, bilateral knee osteoarthritis, ulcerative colitis, obstructive sleep apnoea and morbid obesity. She applied to become a participant in the NDIA. The NDIA declined her application, finding that she did not meet the disability requirements under s 24 of the NDIS Act [opens in new window]. Ms Davis sought review of this decision in the Tribunal. On 14 January 2022, the Tribunal decided to set aside the NDIA’s decision and find that Ms Davis should be admitted as a participant: [2022] AATA 40 [opens in new
Read more

Morbid obesity - is it an 'impairment' for the NDIS?

-
Note 14 November 2022:   The decision in Schwass v NDIA has likely been affected by the Federal Court's reasoning in NDIA v Davis  [2022] FCA 202 - please treat the decision in Schwass  carefully. The below blog article considers the law as it was understood in 2019. Key points There is a conflict between two Tribunal decisions about whether morbid obesity is an 'impairment' for the NDIS - 'impairment' is one of the access criteria for the NDIS. The conflict between the two decisions would have to be resolved by the Federal Court in an appropriate case. Even if a person with morbid obesity could prove it was an 'impairment', it will likely be difficult for them to prove that it was a 'permanent' impairment, because this would require them to show that there is no medical or other treatment available for it. Introduction The Tribunal has two different views on the question of whether morbid obesity is capable of being an 'impairment
Read more