NDIS decision overturned, allowing supports to help woman walk

NDIS decision overturned, allowing supports to help woman walk

Monday, 19 June 2017

Jessica King with her mother Gail
Jessica King with her mother Gail

A Geelong woman can now look forward to getting the supports she needs to walk again. This follows a recent ruling by the Administrative Appeals Tribunal that her physiotherapy sessions and gym membership must be fully funded through the National Disability Insurance Scheme.

Jessica King, aged 35, has spastic quadriplegic cerebral palsy, a mild intellectual disability and mild vision and hearing impairments. She lives with her mother in public housing and works three days a week.

Ms King stated that one of her biggest challenges in life was being able to do everything she can to keep walking, and not be in a wheelchair.

She has tried many different supports to achieve this, none as successful as Bobath physiotherapy and gym sessions. The National Disability Insurance Agency, however, refused to fund these supports as ‘reasonable and necessary’ under Ms King’s NDIS plan.

With the assistance of Victoria Legal Aid, Ms King successfully challenged the agency’s decision and will now receive funding for these critical supports.

Executive Director Civil Justice Dan Nicholson said: ‘The whole premise of this scheme is to give people choice and control, and that means listening to what works for an individual and properly tailoring support plans to meet those needs.

‘In this case the evidence was that the combination of specific physiotherapy and gym sessions made significant improvements to Jessica’s mobility, reducing her need for other supports in the long-term.

‘The agency’s refusal to fund necessary supports for individual participants – from chiropractic treatment in an earlier case, to now Bobath physiotherapy in Jessica’s case – is a failure to give effect to the purpose of the NDIS. This is leading to unnecessary and costly legal disputes,’ Mr Nicholson said.

'A participant should not have to go all the way to the tribunal to confirm what they already know – that they need these supports to achieve their goals of independence and social and economic participation in the community.’

Executive Director Civil Justice Dan Nicholson

Jessica’s mother, Ms Gail King, said that the agency conducted a phone review of her daughter’s support plan but would not meet in person.

‘So the therapy stopped, and by the time we got to the tribunal, Jessica was in a wheelchair. Sometimes at home she has had to get on the floor and crawl in pain from one room to the other.’

Gail King, Jessica's mother

Starting Bobath therapy approximately 10 years ago led to Jessica being able to walk again, and was described by her mother as a ‘miracle therapy for Jess’. Jessica says that she ‘hates’ now being back in her wheelchair because she ‘feels different to everyone else.’

Gail was a qualified psychologist but says her daughter’s illnesses 'brought me to my knees’ and that she has had to fight the agency every step of the way.

She said the process had made her feel ‘overwhelmed, depressed and defeated – but determined.’

The tribunal’s decision is also the first to follow the successful appeal outcome Victoria Legal Aid won in the Federal Court of Australia on behalf of Liam McGarrigle in December 2016. This confirmed that the NDIA must fully fund supports that are held to be ‘reasonable and necessary’ under the scheme.

The NDIA recently lodged an appeal to the Full Federal Court against the McGarrigle decision. It will be heard on Monday 21 August 2017.

How we can help

See Your appeal rights under the National Disability Insurance Scheme

Victoria Legal Aid receives funding from the Department of Social Services under its Central Assessment Provider (CAP) guidelines to run NDIS review applications to the Administrative Appeals Tribunal, where it considers the application raises novel or complex legal issues.

Since the NDIS commenced on 1 July 2013, we have received 33 referrals under the CAP scheme, including King and the National Disability Insurance Agency.

Media enquiries

If you have a media enquiry, please contact Senior Communications Adviser Paula Wilson – (03) 9269 0620 or 0438 612 289.

Media stories

See Woman with disabilities scores landmark win over NDIS, The Age, 19 June 2017.