NDIS - Cases and Commentary

 Getting help with a matter in the AAT I have received a number of inquiries from people who have either started proceedings in the Tribunal concerning a dispute with the NDIS, or who are about to start proceedings. This can be a stressful and challenging process, particularly if a person doesn't have legal advice or assistance. However, there are a number of possible avenues for legal assistance or advocacy. I set some of these out below: Legal Aid Legal aid is available for Tribunal disputes. Each state has its own Legal Aid system, and that means that there are different criteria that have to be met in order to obtain Legal Aid.  The Department of Social Services has prepared guidelines [opens in new window] for each of the Legal Aid agencies to follow in deciding whether to grant legal aid funding for an NDIS dispute. In summary: An applicant has to lodge an application with the AAT before  applying for legal aid. Funding applications are not subject to means testing...

Key points In Atkinson and NDIA  [2021] AATA 3540 [opens in new window], the Tribunal refused the NDIA's application to have an applicant attend appointments with an OT and psychiatrist selected by the NDIA. The case includes a useful summary of how the Tribunal decides whether to exercise its discretion to make such an order. Facts Mr Atkinson brought proceedings in the Tribunal seeking a review of the NDIA's decision that he did not meet the access criteria for the NDIS.  In the course of these proceedings, the NDIA requested Mr Atkinson to attend appointments with a psychiatrist and an in-home assessment by an occupational therapist. Both experts were selected by the NDIA. Mr Atkinson refused. He stated that he was extremely exhausted from the Tribunal process, and that he will suffer deterioration of his health if he is required to undergo the further examinations. Mr Atkinson offered to have his OT and psychiatrist answer further questions from the NDIA if required. The ...

Key points In Hollis and NDIA  [2021] AATA 2888 [opens in new window] the Tribunal analyses requirements in order to obtain NDIS funding for the registration and upkeep of a dog who the applicant claimed had been trained to by a psychiatric assistance dog.  The Tribunal's decision states that at a minimum, among other things, a psychiatric assistance dog will have to be trained to standards set by Assistance Dogs International. That requirement could have the effect of severely limiting access to funding for psychiatric assistance dogs in Australia, given the limited number of Australian organisations providing psychiatric assistance dogs that appear to meet this standard. Facts Mr Hollis has a number of psychiatric conditions, including complex PTSD, dyslexia, anxiety and chronic grief. He sought funding for various supports, including funding for registration and upkeep of his toy poodle, Pluto, who Mr Hollis stated was trained to provide him with emotional support and psyc...

Key Points In Loadsman and NDIA   [2021] AATA 1990 [opens in new window], the Tribunal refused to include funding for installation of a home elevator in a participant's plan, instead providing funding for a stairclimber. The case is a useful example of how the Tribunal (and the NDIA) approach the question of home modifications. It is apparent that if there is a suitable cheaper alternative that can be reused, then this will likely be funded instead of permanent home improvements. Facts Ms Loadsman is a participant in the NDIA who suffers from motor neurone disease ( MND ). She lives with her family in a two-storey home. Ms Loadsman sought funding from the NDIA for the installation of an elevator in order to allow her to access the upper storey of her home. Ms Loadsman gave evidence that she was unable to climb the stairs because her legs did not function properly. She had previously been using an ankle foot orthosis and a walker to navigate her house, but had recently begun using ...

Key points In Steley and NDIA  [2021] AATA 2539 [opens in new window] the Tribunal has made clear that a person seeking an internal review of a decision by the NDIA only needs to request an internal review. The person does not need to identify a particular aspect of the decision that is wrong, or identify specific supports that were not included in the original plan, which the person considers should be.  However, providing detail, relevant information and submissions to the NDIA will allow it to better conduct an internal review, and make it more likely that the person will receive a better decision upon review. Facts Mr Steley has a prosthetic eye. The NDIA issued a statement of participant supports, and Mr Steley sought internal review of this. Mr Steley sought additional supports relating to his prosthetic eye and certain physiotherapy or exercise physiology sessions. The internal reviewer did not consider these additional supports. (There was a factual dispute between th...

Key points The Commonwealth Government is introducing independent assessments for applicants to the NDIS and participants in the NDIS. The independent assessments will assess a person's functional capacity. The proposed independent assessment scheme could be problematic for people with disability, because independent assessors will be expected to make decisions about functional capacity despite having a very limited period of time to assess the individual, and having little background about the individual.  Although the decisions of independent assessors will not be directly reviewable in the Tribunal, there is still scope for the Tribunal to prefer the evidence of a person's treating practitioner over the independent assessor's evidence, if that is the appropriate conclusion. Overall, there are better ways of addressing the problems identified by the discussion paper. Background The Commonwealth Government has announced that by mid-2021 it will introduce a requirement for ...

Summary In Madelaine and NDIA  [2020] AATA 4025 [opens in new window], the Tribunal considered whether a person had substantially reduced functional capacity in one of the activities set out in s 24(1)(c) of the NDIS Act. The Tribunal's provides a good overview of how it approaches this question. However, the decision makes some concerning statements about the mobility aspect of functional capacity. The decision emphasises how low the threshold is for a person to have functional capacity in this area, making it extremely difficult for NDIS applications to be made on the basis of substantially reduced functional capacity in this area. Facts Teena Madelaine has a range of conditions, including rheumatoid arthritis and chronic regional pain syndrome. She applied in 2017 to join the NDIS. In 2019 her application was rejected. Ms Madelaine sought review of this decision in the Tribunal. The question for the Tribunal was whether any of Ms Madelaine's impairments resulted in substant...