Opinion: legal representation for people with disabilities is shockingly low when appealing NDIS decisions

By Vanessa Di Natale

Tuesday December 8, 2020

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Some people with disabilities say the National Disability Insurance Scheme appeals process is “soul-destroying”. An overwhelming number of them are attending hearings at the Administrative Appeals Tribunal (AAT) without legal representation.

Rachael Thompson, a lawyer from Rights Information Advocacy Centre, a Victorian public legal service for people with disabilities, says many of the centre’s clients have suffered additional mental and physical health issues due to the stress of the appeals process.

Thompson said one of her clients had a heart attack nine months into waiting for an outcome from the NDIA on their tribunal case.

“The stress was caused by the ongoing delays with the tribunal process and the lack of support to this vulnerable person,” Thompson said.

More than 75% of people with disabilities across Australia last year did not have legal representation at their NDIS appeals, according to data obtained under freedom of information from the AAT, which reviews government administrative decisions.

NDIS participants make appeals to the AAT when they have exhausted their internal review rights and are still dissatisfied with the final decision of the National Disability Insurance Agency (which is responsible for funding supports for Australians with disabilities under the National Disability Insurance Scheme).

While people with disabilities are attending their NDIS appeals without any legal representation, the NDIA uses up to three lawyers to represent it in one tribunal hearing.

The low number of people with disabilities with legal representation for their NDIS appeals comes as it was revealed in Senate Estimates last week that the NDIA spent $13.4 million in AAT legal fees in 2019-20 and was frequently represented by Minter Ellison, an Australian top-tier law firm.

Geoff Southwell, CEO of Leadership Plus, a Melbourne-based disability advocacy service, says, “If the NDIA are routinely going to have lawyers representing them at the AAT, it is unfair for participants not to.”

Many public legal services for people with disabilities say they are not resourced to cope with the potential increase in NDIS appeals from participants when the NDIA introduces independent assessments in 2021.

The NDIA announced last month it will be making independent assessments mandatory for NDIS participants.

The announcement of independent assessment has sparked concerns from disability legal advocates who say they expect to see an increase in the number of NDIS appeals to the AAT if decisions from independent assessors are inconsistent with the recommendations of a person’s treating health practitioner.

The NDIA will switch to using independent assessment panels in 2021 and will mean NDIS participants will no longer be able to use their treating health practitioner for funding assessments.

Independent assessment panels will be made up of psychologists, occupational therapists, physiotherapists and speech pathologists appointed by the NDIA.

NDIS minister Stuart Robert has said the use of independent assessors will create a “simpler, faster and fairer” scheme and provide “objective and unbiased access to NDIS supports, not just those who can pay the most for a report.”

Disability advocate Fiona Downing, from Disability Justice Australia, disagrees with NDIS minister Robert’s claim that independent assessors will be more objective.

Downing says independent assessors will likely be reluctant to make assessments that could potentially risk the renewal of their contract with the NDIA.

“The independent assessor will clearly be biased towards the agency,” she said.

Disability legal advocates say the NDIS would be fairer and simpler if more people with disabilities had legal representation for their NDIS appeals.

The number of NDIS appeals to the AAT has increased in the past four years from 215 finalised decisions in 2016-17 to 1,780 received cases in 2019-20.

Just over 29% of applicants had official legal representation at the AAT in the period from 1 January 2019 to 31 January 2020. Source: Administrative Appeals Tribunal, obtained under freedom of information by Shirley Humphris.

Settlement delays and radio silence from the NDIA’s lawyers in the lead up to an AAT hearing can be distressing for people with disabilities, especially when they do not have a legal representative.

In Victoria Legal Aid’s submission to the 2019 Standing Committee’s inquiry into the National Disability Insurance Scheme, VLA described how it had to prepare and fund additional evidence for a client because of a delayed settlement offer from NDIA’s lawyers who only tried to settle the day before the hearing.

“The NDIA had failed to make an early assessment of the matter and to keep the costs of litigation to a minimum,” VLA wrote in its submission.

Without settlement offers from the NDIA’s lawyers, people with disabilities can go several months without funding for services they need.

In 2019, the COAG Disability Reform Council reported that 1,908 cases out of 1,982 were finalised via a settlement offer from the NDIA.

The NDIA claimed in 2018 that its high settlement rate is testament to the agency’s “conciliatory approach to all Administrative Appeal Tribunal (AAT).”

But PIAC suggest “the NDIA [does] not want its internal decision-making process to be exposed during the appeals process, or [does] not want precedents to be set or revisited.”

Private settlement offers prevent NDIS participants and their representatives from knowing what funding they’re entitled to.

Concerns have been raised with the lack of transparency around out of tribunal settlement cases. Disability legal advocates have requested the NDIA publish de-identified accounts of tribunal settlements to promote transparency.

The NDIS minister, Stuart Robert, has rejected the need for public disclosure.

Robert said the government’s position on the public disclosure of settlement outcomes was that they may set an “unwarranted precedent…would be a misleading guide…and would establish a false impression that those outcomes should guide decision-making in the cases.”

An NDIA spokesperson told me, “All early resolution agreements in the AAT are confidential between parties”.

The NDIA spokesperson also said the agency is committed to transparency with regards to its decision making.

But disability advocates claim there has also been a lack of transparency from the NDIA in how they have approached introducing independent assessments.

NDIS appeals have already come before the AAT where the reports of independent assessors have been rejected in favour of the evidence provided by the NDIS participant’s own health practitioners.

Last month, tribunal members voiced their concerns about the reliability of independent assessors in Ray v National Disability Insurance Agency.

The tribunal ruled that they did not have confidence in the NDIA’s appointed assessor because they did not have “an accurate understanding of Mrs Ray’s background, past achievements and her current state of mental health.” The tribunal concluded that Mrs Ray’s treating psychologist was more reliable than the NDIA’s appointed assessor.

 An NDIA spokesperson told me they recognise the importance of consultation when it comes to independent assessments, which is why the agency recently announced that NDIS reforms will now take place in mid-2021, not early 2021, to allow more time to consider feedback from its key stakeholders.

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