Navigating the NDIS appeals system

This session was part of the NDIS and Advocacy conference held in Geelong on 4 December 2014.

Tess McCarthy from the Office of the Public Advocate moderated this session that looked at appeals and external merits applications in the context of the NDIS. The discussion brought together some of the key players in the advocacy field, including:

  • John Handley, Senior Member of the Administrative Appeals Tribunal
  • Len Jaffit, Manager, Commonwealth Entitlements Program, Victoria Legal Aid
  • Leah Kateiva, External Merits Review Officer, Regional Information and Advocacy Council (RIAC)


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Hello everybody, i will now introduce you to Tess McCarthy who is going to moderate this session, thank you.

Thank you Robyn thanks for inviting me to be here today. It’s great to be here. Firstly, I would like to acknowledge the traditional owners of the land on which we meet and pay my respects for their elders, past and present.

I’m a Policy and Research Officer at the Office of the Public Advocate, we’re based in Carlton. In relation to the NDIS my office is involved in a number of ways including as acting as guardian and advocate on behalf of participants and perspective participants.

We’re also undertaking research into the interface between the Guardianship and Administration Act and the National Disability Insurance Scheme Act in relation to substitute decision makers.

We are also advocating for nationally consistent monitoring mechanisms and in their development, we are advocating that Victoria’s existing safeguards are maintained and built upon. I guess we have some concerns about whether people with cognitive impairment and mental health are truly being enabled to participate particularly in the absence of an advocate. We’re really strong on advocacy at the office and we completely support it.

This session as Robyn mentioned Navigating the Appeals System, we’ve got three speakers today. To my left we have Leah Kateiva she is the External Merits Review Officer, Regional Information and Advocacy Council. We have Len Jaffit, Manager Commonwealth Entitlements Program at Victoria Legal Aid. We also have John Handley who is Senior Member of the Administrative Appeals Tribunal.

Each presenter will be speaking individually and at the end, we will have time for audience questions.

I’ll introduce Leah first. Leah is as I said the Senior External Merits Support Officer and Manager of the Geelong Rights Information and Advocacy Council, Geelong office. Leah is responsible for supporting participants seeking a review of the NDIA through the administrative appeals process. Leah has extensive experience in disability, having worked in community services for the past 25 years in both family and disability services and having recently managed the Commonwealth Carer Respite Centre. Leah has been a volunteer advocate for people with disabilities in the local community for as many years. She is passionate about supporting people with disabilities to understand their rights and to empower them to self-advocate when they have a need to do so. Thank you Leah.

Thank you. I’m just here to really let you know about the external merits program. We’ve been doing a lot of talks around the country recently and people are really unaware that they have an appeal mechanism and the external merits was actually set up to support people who disagree with the decisions made by the NDIA.

Our role is to support people right through the process. That would start with making the correct referrals to the CATS program, which is Len’s side of it, trying to get support for people that have novel and complex cases or just supporting people to get new evidence. There’s a whole range of things.

We support people with writing submissions, writing referrals, reassuring people that they have the right to appeal. Because we work in conjunction with advocates through REAC, we often support the advocate to do internal reviews and advise about what they need to actually go through the appeal process. You have to have had an internal review through the NDIA before you can actually appeal.

Can I just ask how many in this room have heard of external merits – oh, there is a few, that’s good. I guess that pretty much sums it up.

There is someone in every state. In Barwon, we have two external merit support officers. We’re lucky, we’ve to date had 12 cases that have gone through the appeals process that we’ve supported through that with good results. A lot of it hasn’t gone quite to hearing it’s gone through the consultancy and conciliation process and been resolved.

I will leave it there I will let Len talk.

I will just introduce you Len. Len Jaffit is the Manager of the Commonwealth Entitlements Program at Victoria Legal Aid. The Commonwealth entitles sub program includes VLA’s social security practice, acting for clients disputing Centrelink decisions for social security prosecutions, legal aided war veteran matters and more recently and surprisingly NDIS work. Len has been with VLA for about 15 years. Prior to that, he was a full time member at the Social Security’s Appeals Tribunal for about 10 years. While at the SSAT Len completed his law degree leaving the SSAT to do the Leo Cousins Practical Training course and joined VLA. Before joining, the SSAT Len worked at the Department of Social Security for more than a decade working in policy and appeal units as well as frontline customer service roles in a regional office. Thanks Len.

Thanks for that, now I’m really feeling my age.

As was just explained I manage the Commonwealth Entitlements Program, which essentially is social security practice, and we’re always responsible for some more veterans work.

When the NDIS was rolled out, because the appeal system in a lot of respect parallels the social security system it fell within my program. We do a range of things at Victoria Legal Aid in terms of different levels of assistance. We provide a telephone advice service. We provide appointments to give more detailed legal advice about issues that fall within the program and with some cases where they qualify for a grant of legal aid we provide complete representation at the internal review stage for Centrelink matters at the SSAT and AAT.

I think it’s open to anybody with an appeal at the AAT to apply for a grant of legal assistance but I have to say there was no additional resources provided for any of that. There is limited scope for that but that’s not to say we’re not happy to give advice to anybody that has a matter before the AAT.
Early on it became apparent the big gap in legal advocacy for the NDIS was really at the AAT stage where things are sometimes quite legalistic, quite complicated and where the other side in this case the NDIA would almost inevitably would have professional legal representation.

The Department itself recognised this early on and set aside some funding for what they refer to novel or complex matters or their CAT scheme. They decide which matters qualify for that funding and if the matter falls within the ambient of the novel or complex scheme they will provide dedicated funding and direct the matter to Victoria Legal Aid. Obviously the applicant themselves is not compelled to avail themselves of that funding.

The other thing as Leah pointed out is every applicant at the AAT gets offered an external merits review person, a non-legal advocate to support them through the process. To date so far as I’m aware virtually every AAT appeal has qualified for novel or complex funding. I think the view in the Department at the moment is they’re all novel, they all raise new issues and this is a great thing.

I suspect this will change with the broader rollout of NDIS because there is limited funds budgeted for this. Having said that there is obviously a lot of good will in the community, in the people that use the NDIA and in the other areas around to support it whether its tribunal members, whether its advocates and everybody wants the scheme to succeed and we believe legal representation is one facet of that.

As I said to date the reality is every AAT appeal that I’m aware of has been funded through the scheme except for matters that have resolved so early in the process that the funding hasn’t been processed and I think there is quite a few of those.

In terms of raw numbers in Victoria we’ve legally assisted I think five different people. One withdrew but of the other four they all succeeded without the need for a hearing. The reality is at the AAT most matters get resolved without the need for a formal hearing but there is always the option for a formal hearing if both parties can’t agree.

The other point of interest in NSW there was a decision at the AAT that’s now on appeal to the Federal Court and that will resolve some of the definitional issues around what is a substantial need for support and those types of questions.

I think that’s probably all I really need to say. Sorry there is one last thing I should add. The other thing that pleased me is I was at a training session, a conference a little while back around this novel or complex scheme. What was said earlier about the agency responding to the decisions of the AAT I believe is accurate. So far as I’m aware they have very promptly amended some of their internal instructions to bring them in line with decisions of the AAT, which is good to know.

Centrelink and the Department do that to some extent but in my experience, it’s a much slower process. That really is all.

Thank you Len, sounds like you do some hard work.

My team not me.

Of course. I’d like to introduce now John Handley he is a Senior Member at the Administrative Appeals Tribunal. He has been a senior member for 24 years having previously practiced for 14 years as a solicitor. John practiced for 8 years in Shepparton where he was also President of the Council for Disabled, Goulburn Valley Region. His legal practice predominately involved acting for applicants seeking compensation for personal injury and disability. His work with the tribunal has involved hearing appeals against decisions refusing persons compensation for injury in the Compensation and Veterans Division. John is also an accredited mediator. John has contributed at a national level to the creation and implementation of the process model for management of NDIA applications. John is also the coordinator in the Victorian Registry of the AAT of NDIA applications where the majority of applicants have been issued since 1 July 2013.

Thanks Tess. The topic that the three of us are speaking to is navigating the appeals system and navigation is probably an appropriate word in a sense. Since 1 July last year, it’s been an extraordinary journey and all of us have effectively started without any maps or compasses, we haven’t had weather charts and have had to learn as we go.

The AAT for those that don’t know, the Administrative Appeals Tribunal, if you think VCAT think of it as the state equivalent. The AAT is the tribunal nationally that reviews decisions of Commonwealth Departments and presently we’re empowered to review decisions made under about 400 different acts of the Commonwealth Parliament. The Commonwealth Parliament saw fit to have decisions of the NDIA reviewed in our Tribunal.

That of itself was a controversial decision because there was quite a lot of opposition to it both from the disabled groups and from the politicians. In effect, we’ve been put on trial ourselves for 2 years to determine that we are the appropriate body to hear the reviews against NDIA decisions.

I’ve always felt uncomfortable when we’ve talked about the rollout as being a trial because without analysis it suggests that the whole scheme is in doubt and will only succeed if the trial succeeds. But I think we should adopt the meaning to the word trial as this first couple of years is going to be a learning exercise for all of us to come to grips with an extraordinary new, large ground breaking scheme which has got extraordinary social ramifications.

In my view this is on par with introduction of the National Health Scheme, it’s on the par with granting national land rights. It can’t be underestimated and it seems to me we’ve all got a duty to make sure it does succeed. I’m confident it will succeed because in this 2 years so much will be learnt, so much will be understood and the future rollouts can proceed with some confidence.

If I can just start if you like backwards in terms of numbers, I know David this morning gave some numbers at a national level. Two or three weeks ago, we had a conference in Melbourne where Meg Parsons from the Geelong Office gave a presentation of the experience in Barwon. On her numbers at 30 June last year, 3,700 persons were found to be eligible and 3,400 plans were approved. Having said that in Victoria there have been 14 applications.

Now there is all sorts of interpretations that can be put into a comparison between what we’ve received and what was decided but it must mean on one view that there is a degree of content or at least happiness with the decisions that have been made.

I have been around the disability community for long enough to know that disabled persons have no hesitation in agitating for their rights and nor should they. But to have 14 applications made to us in just over a 12 months period set against the number of applications that have been made and approved suggests that NDIS must be getting it right.

Having said that we have become aware of some teething problems they had, they have probably become aware of some teething problems we had coming to grips with this new scheme, not helped by the legislation. The legislation is extraordinary in its breath, in its concept and the challenge to us in terms of navigating is interpreting it and applying it. We are not just applying the Act of Parliament we also have to have regard to regulations that have been made under legislation.

David is looking at me with a smile saying I have heard all this before. Guidelines that have been published by the agency, something like 3 or 4,000 pages of the productivity report and many other documents of a legislative nature, which we have to take into account but which also are of assistance. In the terms of you understanding what might be meant by the legislation, the example given before lunch was what is meant by reasonable and necessary.

Lawyers will say take them in isolation those words, they’re not words of art, they have an ordinary every day meaning but they have to be applied to the circumstances envisaged by the legislation and the rules and guidelines under them. But they’re also applied in a context of the circumstances of a particular case.

There has been five decisions so far adjudicated by the tribunal, sorry there was one last week in South Australia. Of those four decisions, two of them have termed unreasonable and necessary. Again bearing in mind those words and that phrase has to be determined and interpreted in the context of what it is that was the subject matter of the application.

One of the cases involved an application in South Australia brought by the parents of a 3-year-old autistic child. The application was where the child had been granted access to the scheme, the application was challenged under the participation plan was called the provision of a type of internet based music program. The cost was $3,000. The two tribunal members in South Australia who presented this case to us in a conference last week in Sydney indicated they had no difficulty whatsoever in the cost because if you applied the cost, if this thing, this device had benefit to the child it would’ve been a no brainer that it would’ve been a reasonable and necessary expense. The reasonable and necessary was in fact for the thing being purchased.

The application was dismissed because on the evidence of the experts who gave evidence the device was untried, and there was no clinical support for it. In those circumstances, the tribunal decided that it was not reasonable and necessary to provide funding for that device where there was no clinical basis for support for it.

Another application that I and colleagues of Sydney heard here in Barwon, the only one from the Victorian list that has been decided, involved an application for funding for the acquisition of a portable oxygen device for a person who already had a portable oxygen device certainly of a different nature and character. And for the provision of a diabetes pump where the person already did have a diabetes pump. We decided that it was not reasonable and necessary where those aids or implements or supports were existing where they were functioning properly, it was not reasonable and necessary under the scheme for it to fund two more identical devices.

When talking about this and David referred to it earlier, the nature of the legislation and it in Section 3 of the act, right at the beginning, is enshrined in the legislation is the grey cloud over all of this and that is the funding. Section 3 of the act itself says that when giving effect to the object of the scheme regard is to be had to the need to ensure the financial sustainability of the NDIS.

Reasonable and necessary is not just about the thing that’s sought or the support wanted but regard also has to be to the cost. There hasn’t been an application yet where someone has said I want this thing that’s going to cost $15,000 where the competing evidence is you can get an equivalent at $20.

That’s going to test the issue of reasonable and necessary because it will test not just the financial aspect but also about the device itself, where the device itself is reasonable and necessary.

Long term a lot of these concepts will be better understood by the practice, by the publication of decisions and by the interpretation and the application of the legislation at a local level.

The five decisions that have been made to date have been published but to my surprise yesterday, I think 3 of the 5 decisions don’t bear the applicants name. So even if you didn’t know who the applicants were whilst those decisions are otherwise available on publically accessible websites you won’t find them because their names are X, Y, Z or T, X, U. Confidentiality orders have been made over the identity of the applicants.

I will be going to our tech people when I get back to ask them to put on our website in a space that’s set aside for NDIS applications, those five decisions so that in terms of your access to knowledge and information, whilst you probably know there is an enormous amount of stuff on the NDIS website, all the legislation, guidelines rules and so on on our website, there is an extensive amount of information concerning our cases management processes and so on.

I think it’s appropriate that we should be publishing our decisions, which are readily accessible where you don’t have to trawl through and be disappointed because you can’t find them where the applicant names aren’t there.

In terms of navigating the system and managing the applications that come through our office and I’ll assume for the moment that most of you have not had any dealings with us so far either at or in relation to these applications, the Tribunal has set aside and created its own NDIS division. It is the members and support staff that are in it, have been deliberately selected and are few in number to ensure there is consistency of our approach.

We have a case management model and this is on the website where we aim and in almost all cases succeeded in completing the review of applications within 13 weeks of lodgement. When an application is received as the coordinator, I arrange a meeting with a case officer and a conference registrar and the three of us work out the indicative times that there will be a conference, a mediation conference and a hearing.

Those dates will be known right at the outset because the case officer will make a telephone call to either the advocate or the applicant or both to introduce themselves and reassure themselves to those persons. For the life of the application, they will be available for anything that might emerge during the management of the application. And at three other stages during the life of the application we meet as a group after we receive documents from the agency, after the first conference, before the mediation conference and the hearing to review the application and what we need to do to be ready to hear the appeal and ultimately to deliver the decision.

One of our objectives also is to wherever possible to deliver oral reasons for the decision as the hearing concludes. We have decided so far because of the relative complexity of what we’re hearing, to not do that but almost all circumstances we’ve delivered written reasons the following day.

We’ve convened the parties by telephone and read to them our reasons over the telephone. We are based in Melbourne, the applications are coming out of this region. We come down here to hear the conferences. In most cases, in some circumstances we’ve dealt with it by video link. We also come down here to do the hearings and we’re using the Deakin both waterfront and the Pines Campus as the place where we convene the hearings.

We’ve taken the view that it would be improper in these circumstances, in these types of applications to convene as if we’re a formal hearing. We don’t take evidence on oath. We have deliberately chosen those facilities because they’re not courtrooms. We all sit down at a table and speak informally and where necessary we ask questions to try and get more information.

I am probably up to my limit. If I can just round up by saying having listened to some of the information this morning, I would strongly recommend and endorse everything said this morning about advocacy and having an advocate if possible at the time the applicant, to enter the scheme, first visits to Barwon office and makes application.

I don’t know the practicalities of that, whether it’s doable in every case but if I apply the reasons for that to the reasons, or what we see and Len would probably see, is often an application will start with an unrepresented applicant not necessarily in this scheme but with others. But as an advocate or in most of our other cases lawyers come into the scheme, they bring a degree of independence to the process, they’re familiar with what needs to be done, what evidence and material needs to be gathered. More often than not the reasons applications resolves as 9 of our 14 have without going to hearing is because a lot more information has been gathered by those persons who are advocating and who know what is needed that was not available when primary decision was made.

The other thing by way of conclusion is to be mindful that I’m sure you already know this but there is a pitfall we can all fall into and we have and that is the two-stage decision process under the legislation.

There has to be a primary decision, which under this legislation is called the reviewable decision. If a person is unhappy with that decision and wants to challenge it or appeal it, they can’t come straight away to the AAT. You have to apply for that decision to be reviewed.

In the NDIA literature, they refer to it as the internal review. David no disrespect but our people have talked to your people and asked you to stop using the word internal because it’s not a creature of the act. What it means is the primary decision that is being reviewed is reviewed internally by not the same officer, a more senior officer. It’s only that decision, the second decision, which can be brought to the AAT.

That’s why some of the applications to date have been withdrawn because we’ve had requests to review the primary decision. We have had to say I’m sorry we’ve closed the file go down the next stage and then come back to us and most people have.

The trap also is to be very, very clear when you apply for that second tier review, sorry if you’re unhappy with the primary decision to determine whether it is that you want the more senior decision maker to make that second tier decision or whether you want someone in NDIA to review the plan.

There have been examples and cases we’ve heard of that have come to us as well where the person in the NDIA office has understood the request because someone has come back with a new medical report or whatever, there has been a request to amend the participation plan. That can be a nightmare because that process is undertaken; if the person is unhappy, they then have to challenge the new participation plan. They’re back to square one. You’ve got to make a decision as advocates about what it is that your clients what you would want and what your clients want.

Perhaps I should be quiet and just respond to questions.

Thank you John, thanks also for those case studies because it’s a really helpful way to illustrate a complex process. Thank you.

Can I just say one thing one of the things in our brief is what type of responses we’ve seen from NDIA. I have to say it’s very encouraging they have listened to argument. Certainly, decisions to resolve applications are made out of the national office I understand in conjunction with the local people as well but they do respond to new material, they are sympathetic to the applicants, they don’t approach a review process with a closed mind.

That has to be indicated by the fact that 9 of the 14 applications have resolved without having to go to hearing. Of that 14, 4 of them were withdrawn. So in fact one matter has proceeded to hearing in the Barwon region.

Okay over to audience questions now.  The lady at the back raised an appeals question this morning, we will get to you at one point.

In regard to something Senior Member Handley said, I just had some other suggestions as to why there may be so few cases that come to the AAT. Lots of people have no information, they don’t even know that they can appeal or where to turn to to appeal or where to get support to help them to appeal against decisions. A lot of people are disempowered. A lot of people have no energy left, they’re exhausted, worn down by years of struggling to survive, people with disabilities and families. For some people who have a cognitive disability or a mental health disability the prospect of taking their matter further can be so daunting that they just give up especially when they may have already been traumatised by the process to date.


I acknowledge that and as I say before I came to the Tribunal, I was a compensation practitioner for applicants and I understand the concept of both intimidation and also litigation fatigue. I acknowledge what you say. The reason I spoke about our processes, not to self-promote but to reassure those persons who do make applications that we will support them as best we can whilst still remaining neutral. But our staff will support them as best we can. And I also reinforce my encouragement of persons if possible to have an advocate right from the outset.  Not from the outset with us outset from the very first time they go to the Barwon office.

At the back.

Yes, this question is to Leah Kateiva, this is probably a bit cheeky of me because I was the lawyer present in the case down at the Barwon Region. I might add just in relation to Senior Member Handley’s construction of that case, certainly to one of the items sought I wouldn’t agree it was identical but we can argue that at a later date. Leah, my question to you you were obviously at attendance at that hearing. I just want you to describe your experience of that hearing.

Why don’t you tell us your experience as the advocate on that occasion?

My experience well, I’m on the one hand asking the question I think.


You’re putting me a hard spot here. It wasn’t what I expected I’ve got to say. I thought we would all just sit around the table and talk about the case I guess. But I found myself in a very difficult decision as the support person for the participant in that I was not allowed to support that person in that room. And everything had to go through the solicitor.

It wasn’t what I expected. I had to come to terms and get my head around that. I wondered what my role was really after that but we did sort that out a little bit by asking some questions around that and I think everyone had to relook at the role of everyone in that room, for me in particular.

Just supplementary question, in terms of the procedure being non adversarial and the premise and notion that these hearings certainly in relation to NDIS matters are non-adversarial or should be non-adversarial, do you find that was the case or do you have another interpretation of how that went?

I guess just having solicitors in the room makes it adversarial. That’s what happens. I thought it was adversarial.

One down there and then another up the front.

Nathan Grixti from VMIAC. I just want to follow on from Deidre’s comments before as well. I suppose in the way we’re mindful at the way we interpret how many people are accessing the appeals processes.

I guess I can’t speak for other areas of disability but particularly in relation to mental health and part of the diagnostic criteria for a number of mental illnesses as it stands, quite often speaking out is often part of the diagnostic criteria that suggests someone has a mental illness. Lacking insight, challenging what Doctors are saying. And it comes back to the way we frame language and the way we interpret these experiences as well.

I’m wondering if the panel is able to comment to how that kind of situation might be incorporated into the way we interpret the start up. It’s a tough question I know.

I’m not quite sure what you’re asking to be honest.

I know quite often we’ve spoken about mental health issues. Schizophrenia quite often gets used as an example of a situation, which might be easily interpreted as a permanent impairment.

Part of the diagnostic criteria for that particular illness really talks about people having a lack of insight, they don’t know they’re well. Often the historical context here is when people have spoken out and tried to challenge the diagnosis or challenge the notion they’re unwell has been met with a lot of resistance from psychiatrists and quite often met with some harsh interventions as well.

Historically people with mental illness, particularly those that have been through the psych system to speak, it is a real challenge. Most people won’t do it because it’s deemed as part of their illness to do so.

I think maybe now I understand the question and try to answer it.

I think it reinforces the need for as much advocacy we can get legal and non-legal. It’s critically important that people like that have a voice and are assisted in testing the system. If they think a decision is wrong they have every right to challenge it.

Certainly, another area of legal aid within the civil justice program deals with patients that are subject to involuntary treatment orders. I definitely hear what you’re saying about the inside issue being raised as kind of a catchall. But I don’t think we should be discouraging people from exercising their rights. I think….

(inaudible – too far away from mic)

I understand that and I guess it’s getting the information out there and about having as much advocacy supports as we can have.

Just to back track back to the question of adversarial versus non-adversarial. Having worked on a secretary tribunal and also as a lawyer on the other side in a range of areas, it’s a very difficult line for a tribunal member to stay on in terms of impartiality.

There is inevitably degrees of adversarial-ness when there are two parties (inaudible – coughing) a dispute. I’m not trying to justify it, just saying a degree of it goes with the territory. In my experience the AAT and this jurisdiction has gone out of its way in every possible direction to minimise that when you compare it with other jurisdictions you have like the Comp Care jurisdiction or even the Centrelink jurisdiction, which is reasonably casual.

Thanks, over here.

I’m trying to hear your speech and I find it quite difficult. I’m really trying my best with this question I will go ahead with it.

After the application for the 13 weeks for a decision, will there be a blind application as well, a brail application?
We need to renew our devices because it will breakdown and then we will have no communication with the outer world. But if we have to wait for 13 weeks, that’s too long to wait. That’s not right.

Why do deaf blind people not have that communication? That’s our access, that’s our only way of communication to contact other people. That was my question.

If I can just clarify when I refer to 13 weeks, it’s the period of time we’ve set ourselves, the agenda we’ve set ourselves to process the application from start to finish. That is within 13 weeks of the application is received and we intend to having it completed and if it proceeds to hearing to have made a decision.

There are challenges for us in how we communicate that decision, yours is a good example. We talked about this at a member conference last week in Sydney where one of our members is blind. He has access to a brail typewriter. His suggestion was that we prepare the decision on disc and send it out but as I think about that, now that’s still going to require someone to listen and to interpret it.

I confess at the moment I don’t know presently how else to deal with it other than by those processes. I am sure there are other ways. There are unique matters that we have to consider, we haven’t had to consider yet in how we communicate where there has been a hearing, how the decision will be communicated.

In terms of the hearing process itself, we engage at the Tribunals expense the appropriate type of interpreter as necessary. I’ve recently heard a matter in Melbourne in another division where the applicant was deaf and we engaged a sign interpreter. That’s just part of our mainstream work.

But in terms of communicating the decision in the circumstances that’s learnt is going to be a challenge and we have to work that out. If you can suggest a way that we should do it I would really like to hear it and take it back.

We just have time for one more down the back.

Member Handley you referred to one section about considering the financial viability of the scheme when you’re making decisions. I wondered firstly on what basis you’re able to actually do that and secondly how that’s actually fair on early applicants.

If you consider something like for example Centrelink, where there are already millions of people in receipt of payment, no one decision is going to fundamentally undermine the financial viability of Centrelink. The first few people coming through the AAT for NDIS decisions, any one of them could be seen as something that could undermine the financial viability of the scheme that doesn’t exist yet.

Does that compel you to make a more conservative decision than you otherwise would because of the small numbers involved?

Speaking for me and I don’t speak for any other member, my approach to the applications is not to have a financial sustainability as the dominant factor. But at the same time I also can’t ignore it. The reason I can’t ignore it is because the legislation says I have to take it into account. Sub Section 3, Sub Part 3 says regard must be had to the financial sustainability of the scheme.

Now I’ve never approached an application so far where I have thought I need to have evidence about what this is going to cost. I have approached on the basis of where is the evidence of why this is reasonable and why this is necessary for this person.

Hopefully, I’m answering your question. My decision or my approach to the application is not going to be determined or influenced or overwhelmed by the financial aspects. By the same token it will be part of the evidence and I have to take it into account, to weight it up. That’s largely what decision-making is about, weighing up the for and against.

Just as you’ve been told about how a couple of people perceived what happened at a hearing we had here in Geelong. The process of decision-making involves hearing the arguments of both parties, and applying the legislation. Evidence, what lawyers refer to, evidence has weight. What is the strongest, what is the weakest point and it’s got to be balanced if possible.

The financial aspects I reaffirm it’s not something that’s going to determine me one way or the other, it’s simply a factor that goes into the mix in the balancing exercise. It has to be undertaken in order to make a decision and only because the legislation says it has to be done. We are mandated by the legislation decided by the Parliament to take that into account. We can’t ignore it.

(inaudible – too far from mic)

Well I’ll give the example, the example I gave before. What if someone comes along and says I want this thing and it’s going to cost $50,000. What if for example NDIS say yes we agree that is a reasonable and necessary support but the NDIA have evidence that that thing costs $20 or $30,000. We’re prepared to provide the thing that’s going to cost $30 because we don’t believe it’s reasonable and necessary for you to have the thing that costs $50. Our evidence is that thing that costs $30,000 is just as good and will have the same benefit on you or outcome as the $50,000 thing.

Now if we accept that on the evidence from the other side as well having heard their case the probability is we will decide the $30,000 thing is appropriate. But if the evidence was that thing that costs $30,000 hasn’t got this, hasn’t got that, won’t do this, hasn’t got a lifetime and so on, it may well be when we do the weighing exercise that the $50,000 thing is more appropriate.

In that case, that would be our decision. We’re still taking into account and had regard to the financial sustainability of the scheme but it would be in the circumstances and on that evidence reasonable and necessary for that thing to be provided. It may be for example I don’t know, what if the $30,000 thing had a lifetime of 18 months but the $50,000 thing had a lifetime of 10 years. I wouldn’t have any difficulty deciding the $50,000 thing is more appropriate, more reasonable and necessary because it does take account of the financial sustainability because the agency won’t be exposed to another cost in 2 or 3 years when the cheaper thing breaks down.

I know that all sounds superficial but that’s the sort of thing we have to take into account from the evidence.

I’m going to have to wrap it up there, If you join me in thanking Leah, Len and John.


About Tess McCarthy

photo of Tess McCarthy Tess McCarthy is a Policy and Research Officer at the Office of the Public Advocate. Tess completed her Master of Public Policy and Management in 2013, and before that she was at the Victorian Law Reform Commission where she worked on the review of the Guardianship and Administration Act 1986  (Vic). Tess has been involved in the disability sector for the past 6 years in both personal and professional roles. Tess is keenly interested in social inclusion, law reform and decision-making arrangements for people with cognitive impairment and mental ill health, particularly in relation to NDIS matters.


About John Handley

photo of John Handley John has been a Senior Member of the Administrative Appeals Tribunal for 24 years, having previously practiced for 14 years as a solicitor. John practiced for eight years in Shepparton where he was also the president of the Council for Disabled (Goulburn Valley Region). His legal practice predominately involved acting for applicants seeking compensation for personal injury and disability. His work with the Tribunal has involved hearing appeals against decisions refusing persons compensation for injury in the compensation and veteran’s divisions. John is also an accredited mediator.
John has contributed, at a national level, to the creation and implementation of the process model for management of NDIA applications. John is also the co-ordinator in the Victorian Registry of the AAT of NDIA applications, where the majority of applications have been issued since 1 July 2013.


About Len Jaffit

photo of Len JaffitLen Jaffit is the Manager of the Commonwealth Entitlements Program at Victoria Legal Aid. The Commonwealth Entitlements Subprogram includes VLA’s social security practice; acting for clients disputing Centrelink decisions and for social security prosecutions, legally aided war veterans’ matters; and more recently NDIS work. Len has been with VLA for about 15 years.  Prior to that he was a full-time member of the Social Security Appeals Tribunal (SSAT) for about 10 years.  While at the SSAT, Len completed his law degree, leaving the SSAT to do the Leo Cussens Practical Training Course and then joining VLA. Before joining the SSAT, Len worked for the Department of Social Security for more than a decade, working in policy and appeal units as well as front-line customer service roles in a Regional Office.


About Leah Kateiva

photo of Leah KateivaLeah Kateiva is the Senior External Merits Support Office and Manager of the Geelong  Rights, Information and Advocacy Council’s Geelong office. Leah is responsible for supporting participants seeking a review of the NDIA through the Administrative Appeals Process.
Leah has extensive experience in disability having worked in Community Services for the past 25 years in both family and disability services and having recently managed the Commonwealth Carer Respite Centre, Shepparton Office for 10 years before moving to Geelong for a sea change.  Leah has been a volunteer advocate for people with disabilities in the local community for as many years.
Leah is passionate about supporting people with disabilities to understand their rights and to empower them to self-advocate when they have a need to do so.

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