NDIS - Cases and Commentary

Key Points In Complete Nursing and Home Care Pty Ltd and NDIA  [2020] AATA 360 [opens in new window] the Tribunal determined that it does not have jurisdiction to review the NDIA's decision to refuse to pay invoices from an NDIS service provider that exceeded the amount of funding in a participant's plan.  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 reimbur...

Key points In NNXF and NDIA  [2019] AATA 5552 [opens in new window] the Tribunal decided in a 2-1 split that if an internal review of a plan is not completed by the NDIA "as soon as reasonably practicable", then an applicant can commence proceedings for review by the Tribunal without having to wait for the NDIA to finish its internal review. This is some good news for NDIS participants and their supporters frustrated by long wait times for internal reviews, but given the importance of this issue an appeal of this decision is reasonably likely. Participants who are currently waiting for internal reviews to be completed who feel that the review has taken longer than reasonably practicable should consider applying to the Tribunal to seek review of their plan.  However, the question of whether "as soon as reasonably practicable" has elapsed is highly fact-dependent. It may also depend on the NDIA and its resources. Background The applicant has Down syndro...

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 h...

Key Points The decision of BGBZ and NDIA [2019] AATA 3505  [opens in new window] involves an application by a mother, who had divorced her husband, to become the sole person with parental responsibility for her child under the NDIA Act. If there are multiple people with parental responsibilities for a child who is a participant in the NDIA, the NDIA has the power to direct that one of those people has sole parental responsibility under the NDIS Act. This would give that person solely the ability to make decisions about e.g. the plan or services obtained by the child under the NDIS. The power to make such a direction is discretionary; the NDIA is not required to make such a direction. A decision to make, or not make, such a direction is reviewable by the Tribunal. In reviewing the decision the Tribunal is bound by the factors set out in the  National Disability Insurance Scheme (Children) Rules 2013  ( Children Rules ) [opens in new window]. Background The app...

Key points In WRMF and NDIA [opens in new window] the Tribunal has decided that a person with multiple sclerosis was entitled to receive NDIS funding for the services of a sex therapist to enable her to achieve sexual release. The person's condition means that she is unable to find a sexual partner and unable to otherwise achieve sexual release.  The Tribunal expressly avoided deciding the issue of whether it was reasonable and appropriate for the NDIS to fund the services of a sex worker (as distinct from a sex therapist) for a person with disability.  The person's particular circumstances were discussed in a confidential annexure to the judgment which is not available to the public. The Tribunal's public judgment also stressed that her circumstances were unique and unusual. These factors mean that this decision has little value as a precedent, but it still raises interesting issues that the NDIA will likely have to confront in the future. Facts The applicant is...

Note The Tribunal handed down decisions in FRCT and NDIA [opens in new window] and  WKZQ and NDIA [opens in new window]. These cases concern NDIS funding for Applied Behaviour Analysis ( ABA ) for Autism Spectrum Disorder ( ASD ). The two decisions relate to twin boys - the Tribunal decided to issue separate decisions to reflect the difference in the circumstances of each boy, but they are considered jointly in these blog posts.  Given the size and importance of these decisions, they are covered in two blog posts. The first blog post sets out the facts and the evidence considered by the Tribunal. The second blog post sets out the Tribunal's analysis and consideration of s 34 of the NDIA Act, as well as my analysis of the cases. Facts FRCT and WKZQ are twin boys with autism spectrum disorder ( ASD ). Each became a participant in the NDIS. Each boy's second plan provided for a budget of $23,756.20 for "early childhood intervention supports to work together withi...

Note The Tribunal handed down decisions in  FRCT and NDIA  [opens in new window] and  WKZQ and NDIA  [opens in new window]. These cases concern NDIS funding for Applied Behaviour Analysis ( ABA ) for Autism Spectrum Disorder ( ASD ). The two decisions relate to twin boys - the Tribunal decided to issue separate decisions to reflect the difference in the circumstances of each boy, but they are considered jointly in these blog posts.  Given the size and importance of these decisions, they are covered in two blog posts. The first blog post [opens in new window] sets out the facts and the evidence considered by the Tribunal. The second blog post sets out the Tribunal's analysis and consideration of s 34 of the NDIA Act, as well as my analysis of the cases. The Tribunal's analysis At [99] the Tribunal noted that there were two alternative models of support for FRCT and WKZQ. The applicants wanted funding for intensive ABA therapy and speech therapy, wh...