Money is tight at the National Disability Insurance Scheme and people with moderate autism and other developmental issues are to be shifted from NDIS into something called Thriving Kids.
Every penny counts, it seems, so it’s timely to digest the National Disability Insurance Agency’s recent success, or otherwise, in the courts.
Two instances are immediately to hand.
Caitlin Jones said she suffers “complex PTSD” and “possible dissociative disorder”.
Member Toohey at the AAT in Brisbane set aside a decision of the Disability Insurance Agency and granted her access to the scheme on the basis of “early intervention”.
Member Toohey was kindness and consideration itself, despite the applicant being “disruptive and abusive”:
“I acknowledge the respondent’s assistance in arranging the second report from Dr Ewer.
When Dr Ewer says that Ms Jones has a number of unhelpful personality traits, in my view, this is an understatement. Ms Jones was disruptive and disrespectful throughout the hearing. I considered whether the applicant’s conduct amounted to an abuse of process.
However, I consider that the applicant’s behaviour is likely to be related to her Complex PTSD.
I consider that efforts to manage this behaviour during the hearing are a reasonable adjustment for the applicant’s disability. I am sorry that the respondent and its representatives were subject to the applicant’s disruptive and abusive conduct. I am also sorry that the tribunal process was distressing for the applicant. I will be considering the applicant’s feedback to improve future hearings that I am involved in.”
The tribunal found that Ms Jones met the early intervention requirements for access to the Disability Insurance Scheme – despite the AAT being told by her that she was well past the stage of early intervention:
“No. I am beyond early intervention, my love. I am, I have a full blown disability. How are you going to intervene with that? How are you going to be early in intervening with that? No. I’m not looking for early, I am looking for permanent support. If someone had intervened early I maybe wouldn’t have a disability now, hey?”
On appeal by the Agency, Berna Collier at the FCA, was having none of the bleeding heart approach exhibited by member Toohey.
When notified about the appeal, Caitlin replied “Leave me alone”. She didn’t turn up for the hearing.
Collier J found that Caitlin did not meet the legislative requirement for NIDS support; that the early supports were not identified; that the tribunal made findings it was not invited to make; and the decision involved errors of law that should be set aside, and sent back for reconsideration by someone different at ART.
On it goes.
National Disability Insurance Agency v Jones
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The National Disability Insurance Agency doesn’t alway win at the hands of the Federales.
Carle Warwick suffers from Parkinson’s Disease. As a participant in the NDI Scheme he applied for funding to support his move to more suitable accomodation.
He lived at Thornleigh in Sydney’s north, but the house was tricky with steps and different levels.
He sold the house in February 2021 with the intention of moving to accomodation that better suited his needs, nearby to his daughter.
He wanted the agency to meet his relocation costs of about $115,000, which includes a real estate agent’s commission of $25,245 and stamp duty of $85,237.40.
He was knocked back for that, the agency presumably thinking that there could be a better use of the scheme’s money than paying real estate agents and the state government’s duties collector for the purchase of a new property.
The AAT looked at other options, including renovation of the Thornleigh property, but considered moving home was better “value for money”.
It took into account that the final choice of home was based on Mr and Mrs Warwick’s wish to be near their daughter, which meant that the relocation was not based solely and directly on the need to accomodate Warwick’s disability.
The tribunal found for the NDI Agency. On appeal Nye Perram reversed the tribunal’s thinking and found that the moving expenses were not part of “day-to-day living costs” which, under the rules, were ineligible for funding.
He remitted it back to tribunal to consider whether the support rules applied to the application and whether the CEO of the agency could exercise a residual discretion to refuse to fund the support.
Consideration was not given to whether Mr Warwick could fund his real estate agent’s commission and the stamp duty on his new house out of the proceeds of the Thornleigh sale, and thereby save the scheme a handy $100,000 + in these straightened times.
On appeal to the Full Feds, there was detailed consideration given to the term “day-to-day”. It’s construction “is not to be found in mere assertion about the syntax of the phrase … in construing the phrase as a whole, each term in it should have work to do”.
The term is suggestive of regularity and routine, and the Agency argued that a commission to a real estate agent and payment of stamp duty are not frequent or regular events in life.
However, Craig Colvin, Darren Jackson, and James Stellios were having none of that. They considered that “day-to-day living costs” is a “composite phrase”, extending to things that require disability support, and not supplies of groceries, cat food, and payment of the gas bill, etc.