Dale Mulligan of Newcastle, denied $1100 a year to pay for lawnmowing, is taking the NDIS to the Federal Court. Picture: Jon Reid Source: Supplied
AUSTRALIANS with disabilities have begun suing the government to break into the National Disability Insurance Scheme, forcing courts and tribunals to navigate the scheme’s early flaws.
Administrative Appeals Tribunal hearings have so far revealed confusion about the NDIS legislation and heard participants were given incorrect information about their entitlements.
One man with emphysema and diabetes was incorrectly told the NDIS would provide an oxygen concentrator and insulin pump, while another was given the wrong information about his avenues for appeal.
The hearings also emphasise the difficult task of weighing participants’ demands against vague and subjective criteria. For instance, the tribunal judged a $3000 classical music therapy for children with autism spectrum disorder failed the “current good practice” and “value for money” tests.
Editorial comment: "vague and subjective criteria" are a serious issue for people with autism/ASD since NDIS planners with liitle or no knowledge of ASD are known to deny people with ASD access to necessary and essential services. In many instances, people who are newly diagnosed are refused services and are unprepared to make a case on their own behalf. The Gobvernment and the NDIA are exploiting the most vulnerable in the community.
A joint parliamentary committee last month found “alarming” early signs of people losing support on the NDIS and serious service delivery problems.
Lawyers have warned the $22.2 billion scheme risks following the example of NSW’s maligned Lifetime Care and Support Scheme for survivors of car accidents, which has passed less than 3 per cent of its $2.5bn funding pool to victims.
However, the National Disability Insurance Agency says it welcomes the tribunal’s oversight as “a critical part of the learning and development process during the transition to full scheme”.
Dale Mulligan, 61, who has heart disease, an adrenal disorder and sciatica from two ruptured discs in his lower back, will in March become the first person to take an NDIS appeal to the Federal Court.
Mr Mulligan, whose case is backed by Legal Aid NSW, was refused $1100 annual funding for a lawnmowing service because it was not satisfied his disabilities resulted in “substantially reduced functional capacity”.
“My heart starts beating very rapidly and I start getting out of breath within two or three minutes of trying to start mowing the lawn,” Mr Mulligan, an autism and schizophrenia support worker, told The Australian.
“I assumed, because I was on a disability pension with heart failure, that the NDIS would say ‘Yes, sure, we’ll help you out’. That’s what I thought it was for. The bars that you’ve got to jump over are so unevenly placed it’s easy to get over a couple of them but then you can’t get over the others.”
Mr Mulligan fears he could be evicted from his social housing if his lawn is unkempt.
The tribunal affirmed the NDIS’s decision to refuse Mr Mulligan but rejected the scheme’s interpretation of a legal requirement that participants be “likely to require support under the NDIS for the person’s lifetime”.
The tribunal said: “It is not clear to us precisely what is needed in order to meet this requirement. Neither the act nor the rules offer any guidance, and the operational guidelines do not refer to it.”
The tribunal outlined its reading of the provision and said Mr Mulligan seemed to meet the requirement, but declined to rule on the issue because it was able to reject the appeal on another basis.
The NDIS spokeswoman said ambiguity in the law had been “clarified” by the Mulligan decision, and the agency was updating its guidelines accordingly.
The spokeswoman, asked about the Victorian man who was refused support promised to him in a preliminary interview, said it was an isolated incident and the agency was working to provide more accurate information in future. “We regret (the participant) was led to believe his requests would be met by the scheme,” she said.
“These interviews occurred at a time before the act was fully operational and the detailed legislative rules, concerning the planning process, had only just been signed into law.”
Further training was being undertaken to ensure participants understood their rights to seek review of NDIS decisions.
An independent review of the NDIS headed by former Centrelink chief executive Jeff Whalan in March found the scheme was affected by woefully inadequate IT systems, staff confusion, lack of direction and vague terminology.
“The agency is building the plane while in flight,” he reported.
Australian Lawyers Alliance president Andrew Stone last week warned the NDIS could already be “heading down the same path” as NSW’s LCSS.
“Let’s be clear: I think the NDIS is one of the best initiatives out of the government in the past decade … but we have reservations about the efficiency with which it is being delivered.”