Conference examines NDIS in action five years down the track

Conference examines NDIS in action five years down the track

Wednesday, 26 April 2017

Disability and legal advocates last week met to explore how well the goals of the National Disability Insurance Scheme (NDIS) are being achieved now that it is being rolled out nationally.

The conference was organised by VicDAN, a network of services, including Victoria Legal Aid, who have been monitoring and sharing NDIS information and experience.

Victoria Legal Aid’s Senior Civil Justice Advocate Louise Martin presented on a recent landmark decision about partial funding of supports. This was only the second time the Federal Court had considered key provisions of the National Disability Insurance Scheme Act. The case was run by Victoria Legal Aid on behalf of 21-year-old Liam McGarrigle.

The conference heard that on March 28, the Federal Court ruled in favour Mr McGarrigle. The main  issue considered was whether the Act permitted the partial funding of a support, once it had been found to be 'reasonable and necessary',  or whether the NDIS could make only a part contribution to its cost, with the balance being borne by a participant and his or her family. 

As Mr McGarrigle lives in a rural area with his family, has an intellectual disability and is unable to drive, the NDIS had accepted that taxi transport to get him to his supports (work, education and social) was a ‘reasonable and necessary support’. However, they decided to fund around 75 per cent rather than the full cost. That decision, which was then upheld at the Administrative Appeals Tribunal (AAT), meant the considerable extra costs were borne by the McGarrigle family.

One of Victoria Legal Aid's arguments in challenging the AAT's decision was that this approach would introduce means testing by a backdoor route into the NDIS, because those families with the capacity to make up a shortfall in funding would be expected to do so.

We also said once a support had been found to be ‘reasonable and necessary’, it would be inconsistent with the purpose of the NDIS for the provision of that support to be conditional on funding by another person.

Justice Mortimer ruled that when the AAT asked itself whether Mr McGarrigle’s family could be expected to make up the funding shortfall, this was a wrong and irrelevant question. She found that the scheme contemplates full funding once a support is found to be 'reasonable and necessary.'

The NDIS announced last week it would appeal the judgment. This now means policy decisions to partially fund ‘reasonable and necessary supports’ remain legally uncertain.

Challenges in supporting individuals with complex needs

The conference also heard about some gaps and challenges the NDIS was facing in dealing with people with multiple and complex disabilities. Leah Kateiva, Chief Executive Officer of Geelong’s Rights Information and Advocacy Centre, outlined the situation of ‘Alice’ who has Rett's syndrome. She needs intensive support and frequently faces life-threatening crises. She requires continual observation and specifically trained carers to oversee her at all times.

Settling a plan for this 23-year-old woman had been prolonged, and issues such as whether her needs were ‘medical’ or ‘disability’ remained unresolved more than six months after the initial planning meeting, according to Ms Kateiva. The funding uncertainty is very stressful for her family and current support agencies are already reducing their support.

Andrew Ford, Corporate Counsel with the NDIS, told the conference that there had been a growth in dispute numbers but this was to be expected due to recent rapid expansion, and the fact that the workings of the Act are now being explored and tested. He outlined processes for review of NDIS decisions and AAT appeals.

The number of participants in the NDIS almost doubled in the last quarter of 2016, and as of 31 December 2016, more than 61,000 Australians were participants in the NDIS. At that point, around 85 per cent of participants rated their satisfaction with the planning process as good or very good. 

More information

Read more about the National Disability Insurance Scheme.

Get help with the National Disability Insurance Scheme

Read more on the Rights Information and Advocacy Centre's website