By convenor |

On Wednesday 16 October 2019, Jake Castledine, and his mother, Janice Castledine, received the news that they won their three-year-long battle with the National Disability Insurance Agency (NDIA) at the Administrative Appeals Tribunal (AAT).

Jake, who is in his late twenties and has multiple disabilities including intellectual disability and autism, needs funded support 24/7. He didn’t have enough funding in his package before the NDIS, and despite promises from both the state government and the NDIA that he would finally get what he needed, his first NDIS plan left him worse off. VALID’s advocacy team assisted with organising a plan review, but again, the NDIS denied almost all the supports Jake required. So, Jake’s family asked for legal help from Villamanta Disability Rights Legal Service and Legal Aid Victoria to have his case heard at the AAT.

Jake and his family have pursued individualised funding based on his specific needs from the NDIS since his first plan in mid-2016, and the decision handed down by the AAT confirms that he will now receive what he asked for. For Jake, this means that

  • His allied health therapists, who are qualified and have worked with him face-to-face many times, are considered a better judge of the number of hours of support he needs than NDIA staff who have never met him
  • His team of staff should have regular access to practice coaching so that they are properly trained and supported to work with him
  • Every kilometre of his travel should be paid for by the NDIS because he can only get around in his own modified car.

A statement from Janice Castledine

“We are extremely pleased about what this AAT decision means for Jake and for other NDIS participants with complex support needs.

Moving over to the NDIS was meant to save us from the old underfunded system which made it impossible for Jake to have a good life. But instead, we have been forced into a three-year fight in review after review, formal complaints, and endless report-writing, while Jake’s progress towards adult life stalled.

We truly admire the tenacity of Victoria Legal Aid and Villamanta Disability Rights Legal Service, who together produced such a strong legal case, and VALID who contributed hundreds of advocacy hours from the very first NDIS planning meeting in 2016, all the way through the AAT process. We also want to thank Jake’s allied health therapists and support team, whose credibility and professionalism was tested by the NDIA’s legal team – we couldn’t have done it without you.

We know that many participants with complex support needs are not getting what they need from the NDIS. We hope that this AAT decision gives hope to people in similar situations, and can pave the way for all NDIS participants to have truly individualised supports.”

All the details…what does this decision mean exactly?!

Allied Health

Firstly, there are some important things in Jake’s win about allied health that everyone should know:

  • Allied health therapists should get information from the participant, and their family and support staff if appropriate, to understand what has and has not worked for the person in the past – the AAT called this “prudent professional practice” (paragraph 281, pg. 86; 287, pg. 88)
  • Allied health therapists should have direct contact with participants with complex support needs over a series of sessions to determine the level of allied health support they need in their NDIS plan (paragraph 283, pg. 87)
  • Allied health reports should include a “clear planned approach to address…needs” (paragraph 288, pg. 88)
  • Allied health therapists should collaborate with, and read relevant reports from other people involved before making their recommendations (paragraph 288, pg. 88)
  • Reports should ensure that there isn’t any unnecessary overlap between the tasks of different professionals involved (paragraph 288, pg. 88)
  • Allied health therapists should have qualifications and experience relevant to the recommendations being made (paragraph 289, pg. 89)
  • Therapy Assistants are not necessarily suitable for people with complex support needs - “Due to the complexity of [the participant’s] circumstances, the Tribunal does not accept that there is a significant role that could be played by therapy assistants…as a way of rationalising the cost of …therapeutic supports” (paragraph 300, pg. 91; 301, pg. 92)
  • Regular multi-disciplinary meetings for allied health professionals are important to achieving effective outcomes for people with complex support needs - “...quarterly MDT team meetings are beneficial for all persons involved to enable members of those teams to work together collaboratively and in a consistent way to provide effective therapeutic outcomes…The Tribunal considers that the effectiveness of those meetings is underpinned by periodic training which may be provided to attendees as part of those meetings as required from time to time (and not as an additional support).” (paragraph 303, pg. 92)
  • Multi-disciplinary teams can be coordinated by a clinical practice leader - “…the clinical practice leader…[is] to determine in consultation with the relevant treating…therapists how that funding is to be applied…over the course of the plan as…particular circumstances and needs may vary from time to time” (paragraph 310, pg. 94)

Behaviour Support

Secondly, Jake’s AAT decision confirmed that for him, behaviour support includes assistance beyond the work of a behaviour support practitioner, including that:

  • Communication support is a critical component in reducing harmful behaviour - “…the provision of speech therapy…has the potential to improve…communication with others…[and] that optimising…capacity to communicate, even in ways that might seem to others to be modest, is critical to giving…the best possible chance of being about to use key formal and informal support people…to ‘co-regulate’…emotions to minimise the frequency and severity of…behaviours of concern” (paragraph 297, pg. 91)
  • Practice coaching has a legitimate role in resourcing support staff working with clients with complex behaviour support needs - practice coaching is “…specifically aimed at building the capacity of…support staff so that they may provide their support…in an informed and consistent way…to minimise…behaviours of concern…[and] in turn, will lead to an increased participation…in activities of daily living and an improvement in…level of social engagement at home and in the community” (paragraph 315, pg. 95)
  • Support staff are not in a good position to act as practice coaches given their other responsibilities - staff “directly involved in the day-to-day provision of care…and…required to juggle a number of tasks which render [staff] ‘time-poor’…leaving [staff] with limited capacity to engage in any meaningful way in the role of a practice coach to the support staff…” (paragraph 325, pg. 98)

Transport

Thirdly, if a person, due to their disabilities, can only travel using their own private vehicle, all kilometres might be covered by the NDIS at the Australian Tax Office rate:

  •  “The Tribunal considers that it is not necessary for it to be concerned as to the numerical particularisation of the…travel costs…[And where]…it is not feasible for the safety of [the participant], [their] carers and members of the public…to catch public transport…[or] by taxi or hire car…to live an independent and active life…the additional costs in travelling by private vehicle…are incurred solely by reasons of [the participant’s] disabilities” (para 333., pg. 100
  • “The Tribunal considers that the appropriate rate that should apply to every kilometre of travel for the purpose identified in paragraph [331], is the rate prescribed by the Australian Taxation Office from time to time, for the purpose of calculating an individual’s tax deductions relating to travel in a private vehicle. The Tribunal considers that this rate reflects the generic quantification of the cost to an individual of running a car arrived at by the Commonwealth Government and is applicable in the context of determining funding for transport supports in the form of travel by private vehicle of a participant under the NDIS being a Commonwealth Government administered scheme.” (paragraph 335, pg. 101)

And one more thing…

This AAT decision also said that if a support is reasonable and necessary it should be funded, even if the participant is willing to agree to compromise with the NDIS to get an outcome - “The Tribunal considers that it must satisfy itself whether the supports requested are reasonable and necessary supports under the NDIS Act based on the evidence before it, and not focus on whether either party considers them to be so, or to draw conclusions on the basis of concessions or compromises that either party might be prepared to make to the other.” (paragraph 311, p. 94)

If you would to read the full 103-page decision, Castledine and National Disability Insurance Agency [2019] AATA 4240 (16 October 2019), you can find it here: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2019/4240.html

Photo of Jake Castledine provided by Janice Castledine

from https://www.valid.org.au/valid-congratulates-jake-castledine-his-big-wi…

Here is a link to the AAT ruling: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2019/4240.h…

Warning: people should be cautious and careful in their AAT appeals: make sure you get good disability advocacy and legal support. The legal system is not your friend. Without good support, you are likely to get a poor outcome. For example, see http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2019/4248.h…