Improvements to appeal avenues for National Disability Insurance Scheme (NDIS) participants are urgently needed so they have better access to useful plans and supports.
‘People with disability have been more exposed to the impacts of COVID-19, including economic effects, than other members of the community,’ said Rowan McRae, Executive Director of Civil Justice Access and Equity. ‘While some steps have been taken to lighten the load for NDIS participants, such as ensuring funding continuity and longer plans, our clients are still facing lengthy delays and uncertainty,’ she said.
In a to the Joint Standing Committee on the NDIS we’ve shared our clients’ experiences of the NDIS during the pandemic, in particular those living through restrictive lockdowns. The submission highlights three urgent issues where the NDIS is not working as intended, leading to serious consequences for people’s health and wellbeing.
AAT powers and implementation
‘Since 2013, we’ve represented over 200 people with NDIS appeals to the Administrative Appeals Tribunal (AAT). During the pandemic we’re seeing how COVID-19 is adding to problems for participants because of jurisdictional issues,’ said Rowan.
Many NDIS participants needed to make urgent changes to their plans due to their changed circumstances in the pandemic. However, these changes result in new NDIS plans being drawn up, and the effect on an existing AAT appeal is unclear.
Under the NDIS Act, the AAT does not have clear powers to consider any subsequent decision that the National Disability Insurance Agency (NDIA) makes, including changes to a plan. Therefore, the AAT’s decision can quickly become obsolete if there are changes to a plan before the matter is finalised. Our lawyers have seen that the NDIA has refused in several cases to vary plans during COVID-19 where there is a current AAT proceeding.
Evelyn (not her real name) was told that she needed to withdraw her son Lenny’s AAT appeal to vary his NDIS plan to respond to COVID-19.
‘When I asked for urgent supports in April, the NDIA told me that I will need to withdraw Lenny’s Tribunal appeal to get them in his plan. This was scary and stressful…Since then, I’ve tried really hard to get help from the NDIS. I’ve had many conversations with different people at the NDIA to ask for these supports. I got told different things and kept being passed around. Sometimes, I just never heard back from the NDIA. No one could give me a clear response. It feels like no one wants to talk about our urgent support needs. The overwhelming message was that there was nothing the NDIA could do because of the Tribunal appeal’
‘In our view, urgent change is needed to clarify the scope of the AAT’s power when reviewing plans that have been replaced. It’s especially important in light of the extended hardship our clients are experiencing and their inability to amend NDIS plans during COVID-19 without affecting their formal appeal,’ said Rowan.
We are also still seeing long delays in appeal decisions being implemented by the NDIA. One client waited five months after an AAT order was made to fund a sensory room as a disability support for his daughters, before making a complaint to the Ombudsman and seeking more legal advice.
‘I cannot express how happy I am now that we have the sensory room for the girls. It has genuinely helped to reduce the incidents of self-harm for both girls. When I look back at the process, if the NDIA has just agreed to fund the room to start with, or at the very least when they agreed back in August 2019 at the AAT, so much harm could have been prevented. It is my daughters’ quality of life which is at stake.’
To give all participants certainty, we’re calling for the NDIA to ensure it fully implements all AAT decisions within 28 days and to consistently apply clear lines of communication between lawyers at the AAT and the local NDIA branch.
Service gaps remain a problem
The submission also raises our ongoing concerns that people like 19-year-old Rick are stuck in custody or suffering severe consequences due to gaps between the NDIS and state services. While there have been some positive steps forward, including Justice Liaison Officers recently starting in some prisons, there is still no enforceable obligation on any government body to ensure NDIS participants – particularly people with complex needs and those living in regional areas – receive their funded supports.
From the submission: ‘Rick remains in custody and cannot access his key communication support worker, and no one is actively looking for alternative accommodation options. Until he is released into a non-custodial setting, he cannot access his NDIS plan and key support workers, and while he cannot assess his key support workers, his risk behaviours increase which effects his ability to get bail.’
‘We need widespread and efficient approaches for people with complex needs at the interface between NDIS and other government systems,’ said Rowan.
Changes NDIS participants need to see
1. Urgently amend the NDIS to clarify AAT jurisdiction
The Federal Government should urgently amend the NDIS Act to clarify the AAT’s jurisdiction, confirming:
- The AAT’s jurisdiction to determine the statement of participant supports from the time the original statement under review, was approved by the CEO.
- The AAT’s jurisdiction to approve the statement of participant supports under sub-section 33(2) of the NDIS Act, which should result in a new plan under sub-section 37(1) of the NDIS Act.
- The statement of participant supports decision should be effective from the time the original statement of participants supports was approved by the CEO or a later date to be determined by the AAT.
- The AAT should determine the date by which or the circumstances in which the NDIA must review the plan as required under sub-section 33(2)(c) of the NDIS Act.
2. Improved implementation of AAT decisions
The NDIA should:
- Ensure AAT decisions are fully implemented within 28 days.
- Improve communication between the NDIA lawyer responsible for the matter at the AAT and the NDIA branch responsible for implementing the plan.
- Give clarity about clear escalation pathways if there are difficulties with AAT decisions being implemented.
3. Coordinated federal and state NDIS support framework
The NDIA should adopt a coordinated and funded service delivery framework covering NDIS and State services, with the goal of maintaining critical supports for individuals.
Reviewed 14 April 2022