This was the second session at the Advocacy Sector Conversations forum held on 1 March 2016 at the Jasper Hotel. This session was a panel discussion on the NDIA complaints process. We heard from an NDIS participant, her disability advocate, and legal representatives from the McCutcheon vs NDIA case. Panelists were:
- Kylie McCutcheon , NDIS participant and AAT complainant
- James Keith , Geelong Area Advocate, Coordinator of SPSP, EMRS Support Officer, Rights Information & Advocacy Centre Inc (RIAC)
- Len Jaffit, Manager Commonwealth Entitlements Civil Justice, Victoria Legal Aid
- Rosalinda Casamento, Senior Lawyer, Victoria Legal Aid, Civil Justice Program
Other sessions included:
- NDIS Planning, Toni Van Hammond, Assistant Director, Engagement and Community Strategy, NDIA
- NDIS training workshop series, Catherine McAlpine, Senior Manager, NDIS Disability Loop, AFDO
- Q&A with the Office for Disability, Fleur Campbell, Project Officer, DHHS
- Kylie Mccutcheon and National Disability Insurance Agency –  AATA 624, Hickson Lawyer Blog, 28 Aug 2015
- Case Note: McCutcheon v National Disability Insurance Agency  AATA 624, Victoria Legal Aid, 21 Aug 2015 , Download (Word)
- McCutcheon and National Disability Insurance Agency  AATA 624, AAdministrative Appeals Tribunal of Australia, 21 Aug 2015
- Helping people fight for their rights – Kylie’s story, VCOSS, Insight, Dec 2015 edition
- External Merits Review Support (EMRS) fact sheet, RIAC
- Yes Minister – NDIS review and apeals process download as PDF
Session audio and transcript
Very much been looking forward to this session. We’ve got a great panel I think put together to hopefully meet your information and resource needs. I will introduce all of our panellists straight up I think and then we will hear from each of the panellists for around about 10 minutes and then we will leave the remainder of the session open to you for your questions. Question time is really, really an important part of these forums. Our panel consists of and starting from – actually they’re not in order of speaking.
Our first speaker will be Kylie McCutcheon and Kylie is an NDIS participant who has gone through the application process, the planning process, the internal review process, the external review process, right up to an appeal at the Administrative Appeals Tribunal. She will take us through her experience.
Then James Keith who is an advocate from Geelong who works for RIAC, which is Rights Information & Advocacy Centre Inc. He is also an external merits review support person and he will speak about the support that he offered to Kylie when she first made contact with RIAC and of course he will take us through the external merits review process.
Then we will hear from Len Jaffit, who is the Manager Commonwealth Entitlements Civil Justice at Victoria Legal Aid. He is going to talk to us about the process when an appeal is being made at an external merits review support person or an advocate or a person with a disability has gone through the NDIA internal review process and now they’re seeking to get some funding for legal aid support if their case has escalated to the Administrative Appeals Tribunal.
Then we will finish by hearing from Rosalinda Casamento, she is a Senior Lawyer, Victoria Legal Aid.
I think we’re in for a great treat this afternoon.
Toni Van Hammond earlier, set this panel up nicely I think. She gave us a bit of an appreciation of a very rough sketch of the complaint and appeal and review process that occurs within NDIA. I’m hoping the next hour or so is going to expand on that a little more and help us all here to have a greater appreciation of the steps that are involved. Before I hand over to Kylie, what we have done you will find during the lunch break that Natasha has placed on your tables, four copies only per table, but everybody who has registered for this forum will get copies made available to you via an email, via a link to the resource page on the DARU website. But we’ve drafted a little bit of a flow chart to aid in this next session.
To aid in your understanding of the steps that a person with a disability or a person affected by a decision made by the NDIA will go through if they’re going from applying to be an NDIS participant right through the appeals and reviews process and complaints process that ultimately leads to a hearing at the AAT. We’ve deliberately tried to keep it as a flow chart or a step-by-step document rather than a process document with every single step explained just to aid in your understanding. As a result it has draft written all over it and we will make special attention to the discussions that occur out of this session to finalise that draft and make that document available as a resource for you and anybody else you care about.
Without further a due lets hand the microphone over to Kylie McCutcheon. Kylie I will start just by asking you the question – What happened?
My name is Kylie, I’m 38 years old. I live on the Bellarine Peninsula with my 8-year-old daughter and two cats and two rabbits at this stage. I have been blessed with a number of disabilities and medical conditions. I was born with spina bifida scoliosis and I developed a disease in my left hip as a child called perthes disease, which essentially eats away the femoral head, and you get a square peg in a round hole and it doesn’t particularly work well. I currently have kidney failure and I do nocturnal dialysis at home four to five nights a week.
I have worked in many different areas over my life. One of them being in the Office of the Disability Advocacy Organisation which gave me the great privileges to hear a lot of stories from a lot of people with different disabilities and hopefully I could help to improve their quality of life.
For me I had an individual support package under the Victorian State Government which provided for some home care, garden and maintenance and the physical therapies I needed to keep my body mobile and moving as best as possible. Like all people who were going to be affected by the changes of NDIA I followed the advertising, that was in the media. And was fairly confident that not much would change for me as there was no loss of service agreement with the State Government therefore in the advertisings words – no one would be worse off under the NDIA.
Unfortunately simple or easy was not how it would turn out to be. I was asked to attend a planning meeting, which would turn out to be quite a chaotic experience. At that point planning meetings were held in the CRS building in Geelong while NDIA were constructing their building. To this day, I couldn’t tell you whether I met with a CRS planner or a NDIS planner. I pulled out this document which was my ISP and I said to them this is working really well in my life, I would like this to be refunded again under NDIA.
Well apparently they actually had never seen an ISP before. I was told that it’s really not that simple. Apparently there is this large workbook that I was supposed to have received and filled in before this meeting. Anyhow, we worked through this workbook and off I went on my merry way. About four to six weeks later, I received this letter with an appointment to come to the new NDIA offices for a plan meeting.
At this meeting, I was presented with this document called My Plan. All the funding that I had previously had for physical therapies I had to maintain my mobility, had been taken out of this plan and I was told point blank we don’t fund physical therapies and if you want to keep having them you’re going to have to fund them yourself.
At that point I was probably in shock. I went home and read all the paperwork they had given me and found I could request an internal review which I did that came back upholding the original decision for the reasons being that the request I was making in their opinion didn’t meet the reasonable and necessary legislation or the effective and beneficial legislation. At that point I was very sick, I had whooping cough, pneumonia and wasn’t coping well at all and therefore just accepted the decision with a lot of moaning and grumbling I think.
As the months went by and my savings ran out, my mobility rapidly deteriorated and I went from walking with a limp mostly to relying on my wheelchair because my muscles and joints were seizing up. Having a scoliosis my spine curves slightly to the left therefore the muscles in my left side of my body contracts down and the right side they stretch the other way, which causes great pain when left to its own devices to pull my body around in strange directions.
As a consequence, I had to quit my job because I physically couldn’t do it anymore. At that point, I was studying early childhood and development because I wanted to become a kindergarten teacher. I had to put that on hold because doing a naught to two placement wouldn’t work so well in a wheelchair.
That’s I suppose the immediate impact of one decision in one person’s life. At that point, I was quite distressed of the consequences of this particular plan and the task of negotiating the next plan had arrived. Feelings of dread flooded my mind and body and I needed help.
I did a Google search for disability advocacy in Geelong and found Rights Advocacy and Information Centre. I phoned them and James answered the call. That same afternoon James came to see me at home to help me get a plan of what to do. Relief would be the word of that moment. Someone understood what I needed. James attended the plan review with me and along with Lance helped me with the paperwork, which is called a review of a reviewable decision, which is supposed to be a plain English document, to try to have physical therapies included in my new plan.
The original review outcome was upheld and my only options were to apply to the AAT for an external review or accept the decision. I chose to apply to the AAT for an external review and went on a long quite stressful and sometimes scary journey because I simply couldn’t function in my life as it was. And I really had nothing left to lose.
An external reviews consists of three parts – a directions type hearing that establishes what the disagreement is about and each side’s opinion. Then there is a conciliation hearing that aims to find a mutually acceptable solution and finally, a hearing where a judge makes a decision. My case went to a hearing, which I won. The judge agreed that chiropractic was a reasonable and necessary support for me and that it would be beneficial for me to function in my life.
My case was the first case where lived experience was taken into account in determining the outcome of the case in which is important for people with disabilities as there often hasn’t been research that is relevant to your situation that can be relied upon to determine whether a therapy is helpful or not.
On the day I was confronted with three NDIA lawyers and two staff which was a very intimidating situation given we were in a small boardroom at Deakin waterfront. I had fortunately been able to apply for Legal Aid funding as my case was considered novel and complex and therefore was given a Legal Aid lawyer to help me navigate a complex system along with James and Lance. Without the support of these people, I would never have been able to navigate such a complex system alone.
I believe advocacy is imperative when dealing with NDIA at the planning stage and from raising a complaint through to an AAT review. I initially didn’t expect to be confronted in such a way when NDIA was in its initial stages. But with all the inadequate and misinformation given to me along the way I needed someone who had the knowledge of the system and how to navigate the system to get the supports I needed.
Thank you Kylie. I think that’s a nice natural break and we can move on to James. James from RIAC if you could take us through the process once Kylie made contact with you.
Afternoon, thanks for inviting us. It’s really good to be here and hopefully we can give a bit of an insight as to what’s been going on in the Barwon Region.
With Kylie, I think it was really brave to ask for help and assistance, which was really quite important I think so that we could challenge the decisions of the NDIA. I would certainly say that advocacy is really paramount and the funding is still put forward for that. Because some people need that help, they need that assistance they need that voice if they don’t have a voice. Obviously, they need that person to just be there so that they can have the confidence to have that conversation.
The difference I have seen in many clients that I have supported because they’ve had somebody beside them who’s on their side, gives them that hope that possibility that they can have that conversation to try and make changes in their life for themselves. Ultimately, if that person can do that then as an advocate we’re more than happy to help facilitate that for them.
With the NDIA rolling into Geelong, as Toni has already said it’s a new thing for everybody. Everybody is learning. The opportunities to challenge the NDIA, their decisions I think has been really good within the Barwon Region. To date we’ve had I think over twenty cases gone forward to the Administrative Appeal Tribunal and I think we’ve won most of them. I think we’ve only lost two, I’m not sure.
It’s really important to challenge. When you’re going through that planning process and you feel that something isn’t quite right within your plan then have that conversation with the planner and tell them – I’m not happy with it. Sometimes I will say if you can put it in writing please put it in writing because there is a lot of things that are not transferred through verbal communication.
If it’s put in writing then at the very last stage where we’ve gone through all the different reviews within the NDIA, there is what’s called the T Documents. It’s the Tribunal documents and that is everything to do with that person within the NDIA on the specifics of the supports that they’ve requested. So if you’ve asked us something and it’s in an email and the NDIA haven’t acted on it or it’s gone missing it’s really good for that reason because we’ve got that paper trail. If you can back everything up by email or letters that would be really a good thing to try and do.
Having that conversation with a planner you might get changes to the plan, which is fantastic – they may say we can make that happen. The planner will go away and get that verified from a delegate; generally, an assistant director and hopefully we’re all good. But the way we’ve gone through the processes within the NDIA, sometimes that doesn’t happen so we have to go through what’s called the review.
You can ask for a review of your plan and Toni touched on that. If you go through that process then we get the result, it’s great. But if you get the result in that review, as Kylie said, we have to go for what’s called the review of a reviewable decision. Long winding, but the gist of that is we ask for a review on the supports for Kylie because we feel that the NDIA should pay for them.
The NDIA then give that to somebody on another team who were not part of the original decision. They review what Kylie has asked for – these supports need to be in my plan, please reconsider. That delegate will go away and look at that reasonable and necessary that Toni told us about. Is it value for money – they will look at that as well.
So there is lots of things they will look at within that review and they will come back with a decision. They will either uphold the decision or they will make changes to that decision. If they make the changes then that’s fantastic, that review has worked at that point and that process for that individual. If they uphold the original decision, which was in Kylie’s case then Kylie clearly is going to be disadvantaged. So we have to look at that next process.
We would get a letter from the delegate to say I’ve reviewed your request, and they will quote the legislation on which every part of the legislation the supports fall under. So you will get this letter and it will say subsection 3, paragraph 2 – whatever it is, and we have to go find that to make sure what they’re actually talking about fits within the legislation.
At that point, it can be quite traumatic for that individual. Kylie has already said that there are many people who look at that letter and they just put it in the bin or it just gathers dust. There is a process that you have to go through to follow that appeal. From the date of that review, from the delegate, then you should have twenty-eight days to appeal that.
Many people do not appeal within twenty-eight days because they’re upset, they might not have the supports, they’re angry, anxious. So that’s taken into account through the Administrative Appeals Tribunal process. We can put forward an extension for the delay and we have to give good reason for that. If the Administrative Appeals Tribunal say we support that then we can go forward with that appeal process.
Just now RIAC we’re funded for that external merits review support in the Barwon Region. It takes us down to Colac and everyone within that area. It’s been really quite challenging for us to go through that process. But we’re there to help with the paperwork. To help put forward all the applications, make sure it’s completed, make sure you’ve got all the letters and then we will email that to the Administrative Appeals Tribunal.
They will come back with an updated email saying thanks very much we’ve received it and then within three days the Administrative Appeals Tribunal will make contact with that person or that person’s representative. So maybe a child, but they will make contact with that family member. Then that process starts as Kylie says. We have that teleconference. They will set a date for that teleconference, that initial conversation – is this what you’re challenging, these supports are not adequate.
So the participant will say yes that’s what we’re challenging. If we’ve got a lawyer then they will put forward a case for that as well. The NDIA will say we understand that’s why we’re here. So they put that forward so we understand why are we going to the Administrative Appeals Tribunal, so that everybody understands what would be the next process. And sometimes NDIA has come back and said we’re more than happy to have a chat, let’s set a time after this because we might have some wriggle room to try and make changes to our original decision. That’s great if that happens.
The second part of that is conciliation. The date will be set probably three weeks for that conciliation and that will be facilitated by the Administrative Appeals Tribunal member. If we have funding for a lawyer, and Len is going to explain that process for the caps funding, then the lawyer will be present through that conversation. The support person from RIAC, the individual and then the NDIA will be there. They will have maybe one, two, three lawyers. They might have some assistant director. There could be five or six staff from NDIA. If that person doesn’t receive legal aid and if we weren’t there to support then that individual may well be there on their own. Quite intimidating I would think.
That’s the process for the conciliation – can we come to some agreement because the NDIA may want to make a decision and say okay we will provide this support. I will give you an example, there has been supports gone through where they wanted to conciliate, so it really remains with that participant. If it’s conciliated out without going to the actual hearing that really remains between that client, that participant and the NDIA. So whatever is agreed with at that point might only be for the 12 months of that plan. 12 months’ time we might have to come back and say sorry Kylie, you’re not going to get these supports, we still don’t think you should get that. Kylie has to go through this whole process all again. Or they may look at it and say okay we will provide that but we won’t put as many hours and again we might have to go back to challenge their decision.
Ultimately, if we get to that conciliation and there is no resolution then we have to go to the Administrative Appeals Tribunal hearing which is the last stage. That’s generally held in Melbourne. There will be two members from the Administrative Appeals Tribunal and they will listen to all the evidence from the participant and the NDIA. They have to look at the legislation as well and follow the guidelines of that. They will then come back with their decision.
One of the hearings I was just recently at was two and a half days of conversations. It can be quite long. Sometimes it can be one day but the members are really good. They’re really quite friendly, they try and bring down I think the shock horror of being in this small courtroom. I think they a do really good job at supporting that individual through this process.
Within maybe two weeks, they will try and come back with an answer to you, what their decision is. Depending what that decision is then the clients going to be really pleased or extremely unhappy because it will only go two ways. They may come with an agreement that the NDIA is correct and that has happened. It may come back that they will say we agree with the NDIA, the issue that you brought to us sits within health.
So it’s unfortunate for that participant and that person but at least we now know we have a clear pathway. NDIA does not fund it but we need to go to the health system and put pressure on them – you have to fund it. It’s difficult for that person if that is the decision.
If we look at Kylie’s case, she won that which is fantastic. She challenged and they came back and said this therapy should be provided. That’s a real snapshot that could take six months. We’ve condensed it into twenty minutes.
One thing I want to say is from seeing Kylie day one and to seeing Kylie today is fantastic. This morning I drove up to Kylie’s driveway because I drove her in this morning. Kylie was walking up the driveway, which was great. Previously when I went to see Kylie she was in her house and she couldn’t move from the table. Such was the pressures on her body because they wanted to take away those supports that would help Kylie. I have seen the difference in Kylie as a person just being able to walk and do what she wants.
Initially if we go back to that planning process, the NDIA had said no we do not want to fund these supports so they were going to disempower Kylie. They were prepared to put people in Kylie’s house to prepare meals, and to do house cleaning for her. Kylie said that’s not what I’m looking for – I want to be independent, I want to do it on my own. But they were prepared to put money in for a carer, support person but they weren’t prepared to put money in for the therapies.
It didn’t make sense and Kylie had the right choice and right decision to challenge that and I think she was really brave. Thanks Robyn.
Kylie, yes I think you need to be commended for I’m not going to use the word bravery and inspiration because we’re over that, those of us with disability are sick of hearing that comment. But I think to have the where with all to know what it is that you want, and to have the courage of your convictions and to keep plugging away until you got the support that you need, that I think you need to be commended.
I feel overcome at the moment with a sense of I’m so oriented to my task oriented-ness today that I think I overlooked the true respect that I need to give to you and the kudos that I and we need to give to you because this whole hour is actually about you. You are enabling this whole room and everyone who will listen to this presentation or read the transcript, your story and your tenacity is actually going to aid in the ongoing work of disability advocacy. I think we need to respect that so thank you.
Let’s now hear from Len Jaffit, who is the Manager Commonwealth Entitlements Civil Justice at Victoria Legal Aid and he is going to talk us through dare I say it some of the bureaucracy related to this process. A very important part.
Thank you very much, thank you Kylie as well for two reasons. Kylie’s case demonstrates the importance of challenging decisions when you feel they’re wrong because often they are wrong and they can be changed. The other reason is also important the AAT is not a court. Technically their decisions are not in a legal sense precedence. Having said that other AAT members do have regard to previous decisions that have been made and decisions made by tribunals do impact on the policies of departments.
I think if this decision had gone the other way it pretty much would’ve been a blanket refusal to fund the types of therapies that Kylie was trying to get funded. So this case has certainly ensured that that is not the case.
Now I’m going to talk about what I should be talking about. As Robyn said, I manage the Commonwealth Entitlements Program and Victoria Legal Aid, which is largely our social security practice, but we also do some work in the NDIS space. We’re only a relatively small team. When the NDIS was introduced there was no extra resources put in. But a lot of people felt that it’s an incredibly important scheme and it’s important to hopefully set it up right from the start.
The Department itself I think was a bit split on this. I think there was some people in the Department that wanted to keep lawyers as far away as possible because they were concerned about the scheme becoming more expensive than it might otherwise be. Then I think there were a lot of people in the Department at senior levels accepted it was very important to get some proper basis to the case law from the start so the scheme was clearer and people had a better sense of what they should be entitled to and the agency had a better sense as well.
As a consequence, they set up what they call the External Merits Review Scheme. There are really two components to that. Initially it was only as I understand it, agreed to do it for I think the first two or three years of the scheme but at least some of it will continue. The two components to the EMR supports scheme – one, every applicant at the AAT is offered the support of an EMR non-legal support advocate. So in English that means somebody like James in Victoria from RIAC. That doesn’t mean they can’t also have their own support workers or the support workers they’ve been dealing with in the past but they’re offered the support of someone familiar with the AAT, that’s there to support them in a non-legal sense I guess.
As well as that, they decided they would allocate some funding to pay for legal services. In each state where the NDIS operates or territory, that funding is allocated through the Legal Aid Commission in that state. So it’s not for every AAT appeal and the decisions about who gets funding and who doesn’t are not made by Victoria Legal Aid. They’re made by the Department and they’re assessed on the basis of whether they determine the case to be novel or complex. The stated reason was to ensure there was a body of case law early on.
To date so far as I’m aware pretty much every AAT appeal that’s looked like it’s going to get anywhere near a hearing has been offered novel or complex funding because there haven’t been all that many decisions, so it’s all pretty novel. Over time, I would be very surprised if that continues to be the case.
There is also no guarantees that the scheme for the legal funding will operate past the first two or three years. But at the moment the scheme is there and in order for a person to seek funding under that scheme, they can do it themselves, it can be done through their advocates, it can be done through RIAC or a lawyer can apply on their behalf and the Department will make a decision on that.
If the funding is approved, the matter is allocated to Victoria Legal Aid and we contact the person or their worker directly to ensure the person wants to take up the offer of funding. If we’re acting for the person, we will then assist them from that point on in dealing with the preliminary processes and the hearing. There will be things like a preliminary conference, a conciliation conference and ultimately a hearing.
It’s important to realise that most appeals lodged to the AAT in the NDIS jurisdiction don’t actually proceed to a full hearing. A lot of them are settled without the need for a hearing. That might be because the agency accepts the original decision was wrong or it might be some middle ground is reached.
But for matters that do go to a hearing, the hearings can be pretty complex and pretty legalistic and probably difficult for a person that’s not familiar with the law and not familiar with the AAT.
I guess that also gives rise to the question – what will happen where cases don’t attract novel or complex funding? The AAT itself has spent a lot of time, put a lot of effort into setting up a special process for NDIS appeals. It has some features that the other appeals at the AAT don’t have. They generally get allocated an AAT case officer that will deal with the matter from start to finish. They have a practice direction, which is not legally binding but says that they will finalise all appeals within 13 weeks, from date of lodgement to a written decision if it goes to a hearing should be done within 13 weeks.
That sounds like a long time but compared to a lot of other matters at the AAT it’s not. We have disability support pension appeals that take six to twelve or more months, in some other areas even longer.
There has been a lot of good will and a lot of conscious effort made to try and make the process as useable as possible within the constraints that are there. I’m not trying to down play the fact that the AAT although not a court is still very technical, it is really an adversarial system even though they would probably argue it’s not.
On the other side, there is the agency with its in house legal team and more resources than probably you or Legal Aid have behind you. So it’s not necessarily a level playing field but at least having an EMR support and a lawyer will make the process a little bit easier.
If a matter does not attract novel or complex funding, it’s still possible for a person to make an application direct to Victoria Legal Aid for funding for that legal matter. To put that in context, a person is really entitled to apply for Legal Aid for funding for any legal matter whether it’s a criminal law matter, family law matter, a social security matter. That’s not to say that every matter will get funded.
Victoria Legal Aid allocates funding according to guidelines and there are different guidelines for different matter types. It also unlike the novel or complex scheme has a means test, which is quite restrictive and has some other tests including what is loosely called a reasonable self-funded live in text.
What that means in plain English means would the person themselves spend their own money on a lawyer if they had the funds. If for example, it’s a Centrelink dispute over a $500 debt and we know the legal costs are going to be about $3,000 that sort of matter won’t get funding regardless of anything else.
The point really is that there may be some possibility of funding even if the matter does not qualify for novel or complex funding. But it would be assessed under Victoria Legal Aid guidelines.
The other thing we do at Legal Aid is provide services at a range of different levels. We have a telephone information service that’s open to anybody in the public during business hours, 5 days a week. Anybody can ring with any sort of legal query. They will either at that stage be given legal advice directly or they will be referred to an appropriate source if it’s something that Legal Aid can’t give advice on or they might be referred to the in house practice if there is a specialist area.
For example, all social security enquiries come through to my program.
For the NDIS, because our only involvement at this stage really is at the AAT appeal stage, that’s after a person has been through the internal review, anybody ringing with an enquiry about an NDIS appeal at the AAT, would be referred through to my section. Anybody ringing about an NDIS matter at other levels would probably be referred to somewhere like RIAC or perhaps back to the agency themselves.
I don’t know whether you want it now but the number to ring for any Legal Aid enquiries, our legal help line, it’s a multilingual service so they have operators speaking a range of languages. I hope I got the number rights it’s 1300 792 387.
We will make sure for the transcript that we double-check that number.
Thank you that would be wise. The last thing I would like to say is just a general tip I give to anybody that needs to deal with any large organisation, whether it’s a private organisation like Telstra or the Tax Office, Centrelink or the NDIS agency – I reckon it’s a really wise idea to keep your own records.
I don’t mean you need to write a novel every time you talk to somebody there but keep a diary just with a date, who you spoke to and very briefly what advice they gave you if they gave any advice, what information you gave them if you gave them any information. People say what’s the point nobody will ever accept that if push comes to shove if they haven’t got the records.
Having worked on a tribunal in a previous life where people do keep those sorts of records they do carry a lot of weight. Most people accept that Departments records are not necessarily 100% complete or accurate. They’re a starting point and that’s all.
Thanks Len that’s really good advice.
So Kylie has gone through the participant application process. She’s had a plan, or attempted to have a plan. She’s requested there be a review of the decision that the NDIA made. And it’s gone through an internal review process within the NDIA. She hasn’t been happy with that so she’s contacted an advocacy organisation. She’s been allocated to or James has been allocated to her case and he has taken her through the external merits review support process. They’ve applied for funding. I have forgotten again, what CAP stands for Len and James. It’s on your flow charts on your table.
It stands for novel or complex.
Central Assessment Provider funding, the case has been allocated that funding. It goes back to Victoria Legal Aid where the case is then allocated through their processes to a lawyer enter Rosalinda Casamento.
Thank you, I’m just going to talk to you in a little bit more detail about Kylie’s case and the work we did with Kylie to get to the result that we got.
When Kylie’s case first came to me, I think it was actually at the point where she had already participated in the first process at the AAT. Len talked about how quickly these matters are dealt with once they reach the AAT. The applicant is usually contacted within 3 days of the application being lodged. From there it really is quite a swift process through all the steps to a hearing if the matter does eventuate in a hearing. So I think in Kylie’s case either Lance or James, may have attended the first case conference with Kylie.
At that first conference, James has already explained there is a discussion about the issues in the case. In Kylie’s case the central question was whether the chiropractic treatment that she and other physical therapy that she had been receiving under her ISP, would be funded by the NDIA as a reasonable and necessary support.
I think in Kylie’s very first plan the NDIA were prepared to fund only three chiropractic sessions to allow her to transition into this new arrangement and as Kylie said there after she would be expected to fund that treatment herself.
The case essentially revolved around whether chiropractic and James referred to sections and subsections of the legislation so I’m just going to read you out one of the relevant subsections that we needed to argue in Kylie’s case to satisfy the tribunal that chiropractic was a reasonable and necessary support in Kylie’s case.
So the section is in relation to whether chiropractic was a reasonable and necessary support – the support will be or is likely to be effective and beneficial for the participant having regard to current good practice.
There are also rules which explain in more detail what effective and beneficial and current good practice mean or what the NDIA can have regard to when they come to make a decision about whether a support will be funded because it’s effective and beneficial having regard to current good practice. The rules say the evidence that the NDIA may refer to include to published and refereed literature and the consensus of any expert opinion. So that’s one thing that the NDIA can have regard to.
Another thing was the lived experience of the participant and their carers. So when I got the T documents, James also referred to the T documents. When I got the T documents in relation to Kylie’s case, they were in a big lever arch folder. The material almost exclusively comprised many, many articles that had been accessed by the agency in relation to chiropractic and overwhelmingly those articles concluded that chiropractic was not a treatment that gave really any benefit in relation to certain types of conditions. So for example, chronic low back pain and there were other conditions.
So the NDIA in reviewing Kylie’s case at the internal review stage had really only honed in on that part of the test, which suggests that you can refer to, published literature. They hadn’t considered at all the lived experience of the participant. So when I got allocated Kylie’s case one of the things that jumped out at me straight away was that Kylie had been on an ISP for a number of years and she had been receiving chiropractic treatment under that ISP for a number of years. Even prior to that, I think you’d been accessing it in the community. So she had a long history of accessing this particular type of treatment.
Our approach in Kylie’s case at a very, very early stage was to say to the NDIA – hey what about lived experience? I recall having a couple of very long conversations with Kylie about her lived experience in relation to how chiropractic was actually maintaining her function and enabling her to do things. As she said working, and then looking after her daughter and she’d been able to maintain a level of function that she was happy with having access to this treatment.
We prepared as I say at an early stage in the case, quite a long I guess you would call it a witness statement because we were at this level of review, outlining to the NDIA why we said that Kylie’s chiropractic treatment met one of the considerations in relation to lived experience. This should be given weight in terms of the NDIA’s decision about whether chiropractic was effective and beneficial for Kylie. We asked the NDIA if they would consider that particular aspect of Kylie’s case and we were hoping for an early settlement based on the evidence in relation to lived experience.
Now that didn’t happen. The reason why it didn’t happen, became apparent as we progressed and particularly became apparent during the hearing. At one point in the hearing, the Tribunal member asked the lawyers for the NDIA – are you asking me to make a decision that chiropractic can never be a reasonable and necessary support in this context? So any participant who is seeking to have funded chiropractic as part of their plan would always be knocked back. The lawyers indicated that essentially that was the decision they were looking for.
The reason it appeared we weren’t able to settle Kylie’s case early on on the basis of this really persuasive evidence in relation to lived experience, was because the NDIA had obtained research or had asked internally some employees to conduct some research in relation to chiropractic. They come up with this big body of evidence, which suggested chiropractic was not the kind of treatment, which was effective and beneficial just to use those terms.
The case we ran in relation to the reasonable and necessary supports aspect, two limbs. The first limb was that in fact the published and refereed literature put before the Tribunal in relation to chiropractic was not reliable. The other limb was the lived experience, Kylie’s lived experience.
The NDIA in the course of running the matter sought a report from an expert who and I’ve forgotten her area of practice, but she practices I think in the area with people with TAC, but she had some experience in dealing with people who I think neurological conditions actually arising out of these types of injuries. A report was commissioned for this expert to do another literature review, to provide expert evidence to the Tribunal in relation to this question of effective and beneficial, having regard to published and refereed literature.
There were problems with that because the NDIA gave the expert only a limited amount of time to do that research and when the report came in it was quite clear it was much less than a comprehensive review of the available literature. And the conclusions couldn’t be categoric in relation to chiropractic in all cases not being beneficial.
When we cross-examined her, she was quite willing to say that when it comes to looking at these types of treatments you really do have to look at the individual, at whether the treatment is effective for that individual, is the treatment maintaining that individuals function or whatever the treatment is aimed to do. So for us that was a significant concession. We had also done our own literature review and been able to locate a couple of articles, which we relied on to suggest that there was published literature out there which contradicted what the NDIA had been able to put before the Tribunal.
In its decision, the Tribunal was very careful to confine its findings to the facts of Kylie’s case. The member was at pains to talk about the evidence of Kylie’s treaters, about the effectiveness of particular types of chiropractic treatment for Kylie. Also, I might just read you a bit of what the tribunal said in relation to the literature because it can be overwhelming for you to be presented I guess with a bundle of documents like this, with medical reports that look as though you know, they provide a complete answer to whatever treatment it is you might be seeking in your plan.
We have had other clients at VLA who sought massage therapy as a treatment and we had a similar issue in relation to whether massage therapy would be accepted in particular plans as well. Again, presented with quite a large bundle of medical research in relation to the efficacy for that condition.
So the Tribunal said – the expert acknowledged that there is a limited role that literature can play in determining most effective treatment in an involved case.
So there are a number of studies suggesting positive outcomes as well as the studies, which suggested less than positive outcomes.
Then the Tribunal said – in these circumstances Ms McCutcheon, lived experience is especially relevant.
McCutcheon is the first case that actually considers lived experience and talks about the weight that the Tribunal will give lived experience in the context of all of the evidence. The Tribunal needs to weigh up what participant in any case says about the efficacy of particular treatments that they have against, what the evidence of her chiropractor might be or what her physiotherapist might be and also against what the literature says.
For example, if Kylie was saying something wildly at odds with what the literature says and wildly at odds with what her treaters were saying her evidence in relation to lived experience, obviously wouldn’t be given much weight. But the Tribunal in Kylie’s case felt her evidence needed to be given very considerable weight. It was a very pleasing outcome.
Fantastic outcome, well done. We will cut you off there but I’m sure you will have an opportunity to answer some questions. Sophie I understand you’re happy to be microphone runner again.
Its question time, please raise your hands if you have a question and if you’re comfortable please say your name and what organisation you represent. Trudy, I might give you first option for a question if you do have one. Also anyone who had their hand up at the last session but didn’t get to ask their question you have first dibs this session. Can you somehow indicate to Sophie who you are and Sophie please let me know how many hands we have raised.
We don’t have any questions?
There is a couple so George is first.
George from the Youth Disability Advocacy Service. Thanks Kylie.
Can I ask in terms of getting your ISP to fund chiropractic, was that all there? And my next question is what about the fact that you suffered quite a bit of pain and distress as a result of this, were you able to claim any compensation as a result of what NDIA have put you through?
I don’t know, I didn’t try would be the answer for that. As for my ISP, so I had chiropractic and physiotherapy funded under a Medicare Program and that program was closed down. So at that point, it was requested under my ISP for funding for that. After a long process of medical records and medical people basically saying that it’s an appropriate treatment for my condition, the ISP did fund.
So you had been there before in terms of that battle.
Yes, I had been there before. It was less of a battle the first time.
I guess that’s part of my question as well. Were you able to argue for loss of income and emotional distress and physical distress? And did they pay or allow you to have more funding to get your body back up to the point that it was before they discontinued your treatment?
So yes at the moment, I’m undergoing quite intensive physiotherapy and chiropractic treatment to get back as much as my body will give us. Yeah, as I said before, I haven’t really contemplated pain and suffering litigation.
(inaudible – too far from mic)
A question without notice.
I guess the short answer is I don’t think there is a clear way of claiming it through the NDIS. It’s an administrative decision that was made and was subsequently over turned. Similar things happens in other jurisdictions say Centrelink people have a long battle to get put on the DSP for example.
There is, I guess in theory, you can go back to common law negligence but I’m not suggesting anybody try it because there is a court and court costs involved, cost implications and you would need to establish a whole range of things including pretty much bad faith in the initial decision maker.
Having said that there is another Commonwealth Scheme that’s got nothing directly to do with the NDIA. My knowledge really comes from Centrelink matters but there’s a scheme under finance law called Compensation for Detriment due to defective administration. That allows people who believe that they have suffered defective administration and as a consequence suffered some sort of detriment, usually financial detriment but theoretically it could be broader to put in a claim for payment under that scheme. I don’t know about the agency but I know with other organisations for example Centrelink has a delegation to make payments under that scheme up to a certain amount.
The difficulty with that scheme is firstly it’s difficult to establish all the elements, not impossible but can be difficult. Secondly, if you’re unsuccessful there is no statutory review and appeal rights as there are with NDIS decisions or Centrelink decisions.
I guess in theory you might be able to go to the Federal Court but again I wouldn’t encourage anybody to do that. It would be a hugely expensive process and possibly problematic.
Just to give you an example of the sorts of things that scheme might cover in a slightly different context. Supposing we’re talking about a Centrelink payment, aged pension. Suppose I’m old enough to get the aged pension. I’m 65 years of age I go into Centrelink and say I want to claim the aged pension here is my birth certificate. The person at the counter isn’t good at arithmetic takes a look at it and says you’re too young come back in 3 years and I just accept that and go off. A year later I’m at my Doctors and they ask for my pension card and I say they told me I don’t get one for another 2 years and they say that can’t be right.
Long story short I go back to Centrelink and it turns out the first information was clearly wrong so I do lodge the claim for aged pension but I won’t get it backdated, I only get it from the date I make the claim. Because that’s the way, Social Security Law works. You need to put in a claim to set a date.
I would probably have a claim there under the CWDA scheme to say the initial advice I got was defective. Clearly, people rely on Centrelink to give advice about that sort of thing all the time and they should be giving correct advice. And I could clearly establish 12 months’ worth of aged pension was a direct detriment or loss as a direct consequence of defective administration. That’s a clearer example.
I’m not saying don’t try it if anything happens at the NDIA that causes you some sort of detriment. I’m just saying that I’m just trying to be realistic about the prospects. But I certainly encourage people that feel they have suffered defective administration from any Commonwealth body or agency, to put in an application for a payment under that scheme.
The other thing they can do is make a complaint to the Commonwealth Ombudsman Office who doesn’t have any direct decision making powers but does have a lot of powers around investigation and ultimately powers to table reports in Parliament. And occasionally they do assist people to set up their DA claims. I hope I have answered the question, even though the most important bit I don’t know the answer to that.
Just going on from that if someone wanted to make a claim under that defective administration scheme, say in that aged pension case you gave, would you go to Centrelink?
In the first instance, you would make the application to Centrelink. They’ve probably got a claim form you can use but there is no formality. You could do it in a letter headed claim for compensation for detriment. It’s technically authorised under regulations from the Department of I think Finance and Deregulation now, which is a bizarre name for anything. So there would be information on that departments website as well and information on Centrelink’s website.
The Commonwealth Ombudsman Office from time to time does what they call Own Motion Reviews and I think they’ve done a review into that scheme sometime in the last 5 years or so. There will be information on that as well.
I had a quick question. So if you lost would’ve you been liable for all the costs?
I am happy to answer that question. The AAT is what we call a no cost jurisdiction. There is no capacity for the Tribunal to award legal costs to one side or the other. The standard position in a court is that the losing party gets ordered to pay the successful parties legal costs at a scale rate. That does not apply in Tribunals. You’re only liable for your own legal costs to your own lawyers.
Would you have to fight this every time you get a review or is this a lifelong thing they will now fund?
I believe it’s as long as necessary.
Do we have any more questions?
On that last point the way the process works, is that once the NDIA makes the decision, a reviewable decision you can go and have that decision internally reviewed and taken to the AAT. It really focuses on the decision. The next decision about Kylie’s case is not strictly speaking limited by a previous decision. However, if there is no significant changes in circumstances one way or the other one would like to think that whoever is making the new decision would give serious consideration to previous decisions. That’s probably the best way I can answer that.
Thanks Len, our next question.
Maybe for James I suspect, you say you’ve managed to actually resolve a lot of matters at the point initially of lodging the request or your review internally. I just wondered what proportion. Then I wondered in regard to the circumstance we’ve seen where a person has been substantially disadvantaged is there any thought or have you encountered any willingness in NDIA to look at continuation of supports pending an actual review process?
Thanks for the question. The first point I think to answer it without giving you a real number percentage wise I would probably say since NDIA opened I have had I think probably 160, 170 cases solely with the NDIA. That’s not including anything else that might pop up as an issue.
Most of them I would say have been able to have some type of resolution prior to going for that review of a reviewable decision. What came back out of the review process, I think we’re probably on about 22, 23 cases that went to the AAT. Just now, I’ve got eight cases that’s open proceeding with the AAT. I think the percentages are really high that we’ve been able to get those resolutions within the NDIA setting.
One in particular and it’s around transport costs. There is a lot of issues about transport costs just now where they’re saying the participant should pay a contribution the same as the NDIA pay a contribution towards travel costs. They’re not going to pay 100% if it goes over the threshold of the three stages of the funding that they’ve put forward for transport.
One client put forward a review and the delegate that came out had a conversation with that person to really understand a little more about them, their situation, where they’re at location wise. They had a conversation. They went away, the delegate went away and they’d done some more research and review. They came back to the client and said I’ve managed to give this review some thought after having this conversation with yourself and I feel that I can give you X amount of dollars to your transport until this plan ceases. So it could’ve been $2 or $300, I can’t remember how much it was but that money was put towards the plan for the next 12 months.
That was really conciliated out without having to go anywhere else other than have that conversation. It was really good to see that we could do that.
In saying that the client was pleased with that because they had been to the AAT prior. They were over it, had enough. They were pleased to get that conciliation at that point. That plan will probably be reviewed quite thoroughly by that participant within the next 12 months because when their new plan comes out the funding level they’ve got just now they won’t receive that so we will have to go through that whole process again, unless the client changes the goals. Depending on where they want to travel to they may change that, there may be support or services closer to them. Quite a lot involved to try and get that fine resolution between NDIA and the participant. Has that answered your question?
We need to finish. We’re going into afternoon teatime. Two more questions and then we finish.
Pauline Williams from AMIDA. My question is about whether the NDIA is kind of learning from and responding to the reviews including the external reviews in the way in which they plan for people and whether they’re still ruling things out that on review they’ve decided or have been told they will include. I know precedence hasn’t been set but are they changing the way they look at planning and what is in and what isn’t in?
I can answer a little bit of that question. I know they closely monitor the decisions of the AAT and certainly a year ago which was the last time I went to a meeting of the National Legal Aids and the people that provide the novel and complex funding, at that stage there was at least a couple that quickly fed into their policy documents. So they changed their policies favourably as a direct consequence of AAT decisions. They said that was an undertaking they were giving, going to take on board those findings of the AAT quite quickly.
As I said, the other jurisdiction I work a lot in is the Centrelink jurisdiction at the AAT. They also keep a very close eye on the AAT decisions but in my experience are not nearly as responsive and are more likely to try and change the law than change their policies. This probably is being recorded.
If anybody knows a job I can do next week that would be good.
I guess thinking about the examples that were given this morning and they were fairly clear-cut black and white examples of what wouldn’t be funded and why. Kylie’s case study or scenario seems to point out that there are many instances where it’s not so black and white as to who should fund particular therapies or interventions and why. I just wonder whether people feel that the NDIA are kind of reaching these decisions without necessarily taking into account lived experience and reviewing things from absolutely every angle. Just reasonable and necessary has always been a word or a phrase that I think has been very dangerous and could be very open to manipulation. I just wonder about the tendency of the NDIA, giving these decisions a bit of short shrift if you like.
I guess in relation to Kylie’s case the thing that leapt out was that they appeared to have in conducting the research taken an insurance approach to the question. You do need to take into account as part of the NDIA scheme that there is issues around ensuring the financial sustainability of the NDIS.
So for example, the 2011 productivity commission report stated that it would be important for the NDIS not to respond to funding shortfalls in mainstream health services by providing its own substitute services. I think that concept of financial sustainability is certainly feeding into those types of decisions about reasonable and necessary supports. It is something that the Tribunal is very conscious of and the Tribunal in its decisions you’ll find certainly references the issue of financial sustainability.
I guess to answer your question that is a consideration that we suspect is driving a lot of these decisions but it is not the only consideration and that was very clearly apparent in the McCutcheon decision.
Thankyou Rosalinda. Team Kylie thank you very much for this fabulous presentation this afternoon.
We will have a very short afternoon tea break just to give everybody a stretch and a chance to relieve yourselves.
I wanted to point out we have on the power point, the slide behind me we’re demonstrating the page on the DARU resource around the advocacy sectors conversations forum. We’ve put together a whole lot of resources for you arising out of today’s forum. It’s live on our website now. The link will be available to you as I’ve mentioned earlier today. But Rosalinda wrote up the case notes for Kylie’s case and it’s a really good case review. We’ve also provided a link to the full case write up of the Administrative Appeals Tribunal findings, accessed via the Auslink link and a few other resources.
There is lots to follow on from here today. Can I urge you you do acquaint yourself with these resources and pass them on to your boards, your managers, your teams, the people who you are advocating for because they’re really, really good information sources specifically to what we’ve been talking about today.