NDIS Appeals Funded by the Department of Social

NDIS Appeals Funded by the Department of Social Services Victoria Carbone & Greg Dudzinski Tuesday 13 March 2018

NDIS Appeals • The NDIS Appeals process; • When a decision is reviewable; • The types of reviews available; and • Where you can go for support. Brain Injury SA – copyright retained

Firstly, what we do… Brain Injury SA – copyright retained

We support anyone who is unhappy with a decision* made by the NDIA Brain Injury SA – copyright retained

More specifically, ü We provide impartial and confidential support for anyone who has applied to the NDIS and is unhappy with a reviewable decision made by the NDIA. ü Assist applicants and their families with preparing internal review and external merits review applications. ü Assist applicants with referrals to legal funding. ü Support applicants through the review process. ü Provide public information sessions. Brain Injury SA – copyright retained

NDIS Appeals process Brain Injury SA – copyright retained

Original reviewable decision Brain Injury SA – copyright retained Internal review External Merits Review

Original Decision* Brain Injury SA – copyright retained Internal review External Merits Review

Internal Reviews Brain Injury SA – copyright retained

Internal Reviews Section 100(2) National Disability Insurance Scheme Act (2013) Cth (NDIS Act), ‘A person who is directly affected by a reviewable decision may request the CEO to review the reviewable decision. ’ Brain Injury SA – copyright retained

Internal Reviews ‘Review of a reviewable decision’ • First review process • Conducted by authorised reviewer at the NDIA (not original decision maker/ planner) • Not for complaints • 25 Reviewable decisions Brain Injury SA – copyright retained

Internal Reviews Reviewable decisions Section 99 NDIS Act lists 25 reviewable decisions, including but not limited to: • A decision that a person does not meet the access criteria; • A decision to approve the statement of participant supports in a participant’s plan; • Not to review a participant’s plan. Brain Injury SA – copyright retained

Internal Reviews Reviewable decisions Other reviewable decisions under Section 99 NDIS Act include: • A decision to revoke a person’s status as a participant; • A decision to refuse a person or entity as a registered provider of supports; • A decision not to write off or waive a debt. Brain Injury SA – copyright retained

Internal Reviews Important timeframes Section 100(2) NDIS Act, ‘A person who is directly affected by a reviewable decision may request the CEO to review the reviewable decision. If the person is given a notice under subsection (1) the person must make the request within 3 months after receiving the notice. ’ Brain Injury SA – copyright retained

Case study – Internal Review Brain Injury SA – copyright retained

Case study – Internal Review • A 56 year old, Aboriginal woman with a diagnosis of end-stage kidney disease and a double leg amputation. • She lives with her husband extended family members in remote NT. • Her goal was to access the community and go bush. • On 1 February 2017, she received a plan with $33, 468. 00 for supports • However, this was not sufficient for the supports she needed. • In February 2017, we travelled to her community, and obtained her consent, a copy of her plan and a number of reports from disability service providers, and allied health professionals. • On 27 April 2017, we submitted an internal review application on her behalf, along with relevant evidence. • Following the internal review, a decision was made to change the plan. • In July 2017, she received a new plan with approx. $215, 000. 00 for supports. An additional $181, 500 for supports. Brain Injury SA – copyright retained

External Merits Review Brain Injury SA – copyright retained

Original Decision* Brain Injury SA – copyright retained Internal review External Merits Review

External Merits Review • Second review process • Conducted by the Administrative Appeals Tribunal (AAT) • Not for complaints • Submission via email, post, in person, or online. Brain Injury SA – copyright retained

External Merits Review Section 29(2)(a) AAT Act, The prescribed time is the period commencing on the day on which the decision is made and ending on the twenty‑eighth day after the decision is given to the applicant. Applications must be submitted within 28 days from receiving the Internal Review outcome. Brain Injury SA – copyright retained

AAT Process Brain Injury SA – copyright retained

Application Received Application Assessed Case Conference Conciliation Hearing Application Finalised Brain Injury SA – copyright retained

Application Received Application Assessed Case Conference Conciliation Hearing Application Finalised Brain Injury SA – copyright retained

Preliminary process Ø Application received and processed Ø Contact Officer, Conference Registrar and Deputy President or specialist NDIS member allocated Ø Adelaide Registry endeavour to make the first contact with the Applicant or their representative – within 3 working days Brain Injury SA – copyright retained

Next steps Ø Internal Case Assessment – including issue of Fast Track Hearing Ø Case Conference listed, generally 2 to 4 weeks after receipt of Tribunal documents from respondent Brain Injury SA – copyright retained

Application Received Application Assessed Case Conference Conciliation Hearing Application Finalised Brain Injury SA – copyright retained

Case conference Ø Generally held at AAT Ø Discuss and define issues in dispute Ø Identify further evidence that needs to be gathered Ø Explore issues of representation/advice; confidentiality Ø Explore settlement in a confidential environment Brain Injury SA – copyright retained

Case conference Ø Discuss future conduct of the matter, including referral to conciliation or progress to a hearing Ø Who will be attending the Conciliation/Hearing and what information they will be presenting Ø Any accessibility and/or communication or other needs the participant may have for Conciliation/Hearing Ø Prepare Case Plan Brain Injury SA – copyright retained

Application Received Application Assessed Case Conference Conciliation Hearing Application Finalised Brain Injury SA – copyright retained

Conciliation conference Ø Identify the disputed issues, develop options consider alternatives and endeavour to reach an agreement. Ø Conciliator may make suggestions for the terms of settlement and actively encourage the parties to reach an agreement. Ø Confidential discussions Brain Injury SA – copyright retained

Application Received Application Assessed Case Conference Conciliation Hearing Application Finalised Brain Injury SA – copyright retained

The hearing Ø As informal as possible Ø Heard by a specialist Member of the Tribunal Ø Rules of evidence don’t apply Ø The Tribunal can hear evidence from the Applicant, carers, witnesses and experts Ø The Tribunal makes a fresh decision, applying the National Disability Insurance Scheme Act 2013 and the Rules, and relevant case law Brain Injury SA – copyright retained

The hearing Ø Any further evidence or reports to be provided 14 days before the hearing. Ø An Applicant can provide a written outline of their position 7 days prior. Ø The Member will give a decision not later than 60 days after the hearing. Ø Right of appeal to the Federal Court if there is an error of law. Brain Injury SA – copyright retained

Case study – External Merits Review Brain Injury SA – copyright retained

Case study – External Merits Review • A 14 year old girl with a diagnosis of Down Syndrome, who is also very active, aggressive and impulsive. • On 30 August 2016, she received a plan with $182, 838. 96 for core supports. • In September 2016, we met with the participant’s mother, who was at breaking point, and requested 5 days and nights respite per week. • This amounted to $336, 334. 98, an additional $153, 496. 02 to the currently funded amount. • On 4 October 2016, an internal review was submitted. • On 23 February 2017, an outcome from the internal review was received – declining the request for additional respite. • An external merits review application was then submitted to the Administrative Appeals Tribunal on 3 March 2017. • Following submission of EMR application, we submitted a CAP funding application. Brain Injury SA – copyright retained

The matter was assessed as raising a complex or novel issue. Legal Services Commission instructed to represent the child at the Tribunal. LSC held initial meeting with child’s family. LSC represented child at case conference, conciliation conference and hearing. We supported child’s family at all appointments. • Just prior to the Tribunal hearing closing submissions, the Agency made an offer. • As a result, the Agency agreed to include in the Applicant’s statement of participant’s supports: – Funding in the amount of 5 days and nights respite per week for 12 months under Core Supports ($296, 645. 00); and – Funding for therapeutic supports • • Brain Injury SA – copyright retained

In summary… Brain Injury SA – copyright retained

Original reviewable decision Brain Injury SA – copyright retained Internal review External Merits Review

NDIS plan Plan review, s 48 Brain Injury SA – copyright retained Internal review, s 100 External Merits Review

NDIS plan Plan review, s 48 Brain Injury SA – copyright retained Internal review, s 100 External Merits Review

Plan review Section 48(1) NDIS Act, ‘A participant may request that the CEO conduct a review of the participant's plan at any time. ’ Brain Injury SA – copyright retained

Plan review Any time there is a change of circumstance e. g. family / living situation (informal supports), disability, new diagnosis, Brain Injury SA – copyright retained

Plan review Once submitted, NDIA have 14 days to decide if they will conduct a plan review, s 48(2) – NDIA have the right to refuse plan review – If refused, then becomes internal review – But, IR only based on decision not to review the plan. Brain Injury SA – copyright retained

Plan review Note: differences between scheduled and unscheduled plan reviews Section 48(5) NDIS Act, ‘The CEO must conduct a review of a participant’s plan before the plan’s review date and in the circumstances, if any, specified in the plan. ’ Brain Injury SA – copyright retained

Where you can go for support… Brain Injury SA – copyright retained

• Brain Injury SA • Advocacy for Disability Access and Inclusion Inc (ADAI) • Disability Advocacy and Complaints Service of South Australia Incorporated (DACSSA) • Disability Rights Advocacy Service Incorporated (DRAS) • NPY Women’s Council (Service area APY Lands) Brain Injury SA – copyright retained

Questions? We can be contacted at: victoriac@braininjurysa. org. au gregd@braininjurysa. org. au (08) 8217 7600 1300 733 049 Brain Injury SA – copyright retained