September 5, 2019

Gabrielle gets the NDIA run-around

The NDIA gave Gabrielle the wrong advice and then didn’t fix it.  And they kept on not fixing it.

Gabrielle has a plan from the National Disability Insurance Agency (NDIA) which includes Assistive Technology funding. Her physiotherapist supported using that funding to buy three items of furniture to manage the physical impact of Gabrielle’s disability. The total cost was within the $1000 allowed for in her plan.

In December 2017 she sought advice from her Local Area Coordinator on purchasing the furniture and on that advice in January 2018 she purchased the furniture directly from a retailer who had told her they were a registered NDIS provider, expecting it to be paid by the NDIA. Her only income is the Disability Support Pension and with no savings she took out a personal loan to buy the furniture.

Over the next five months, Gabrielle received a variety of conflicting advice from the NDIA about what to do. Her plan is managed by the NDIA and a provider invoice could have been processed through the NDIA portal, but they had no policy on reimbursement. She was told that equipment can only be purchased by the NDIA and only from registered service providers; that the agency did not reimburse payments by participants; that she would need an occupational therapist report recommending the items. Then she was told that although it was ‘irregular’ they would reimburse her.

In July 2018 the agency deposited $299 into her bank account, not the full amount, and with no explanation of the difference.

Gabrielle complained to the NDIA and was told that it was ‘not a reviewable decision’ – effectively closing off any internal or external avenue for appealing the decision.

With the help of an advocate and a Freedom of Information Request, Gabrielle discovered the NDIA had corresponded with her physiotherapist in June confirming that an item was an appropriate disability related support – but only asking about one of the three items. Subsequently the physiotherapist confirmed in writing that the other two items were similarly appropriate, which was forwarded by Gabrielle and the advocate to the Senior Complaints Officer at the NDIA.

The Senior Complaints Officer confirmed in December that they had previously referred the letter supporting all three items of furniture to the appropriate team for their consideration and he’d been advised in October 2018 that a decision had been made not to reimburse the remaining funds. They also confirmed this decision was not communicated to Gabrielle and it was not documented on her NDIS record. After repeated requests from the Senior Complaints Officer, the Agency wrote to Gabrielle advising they would not be conducting a review of her plan – which had never been requested and was not at issue. The letter also advised that she could apply to the Administrative Appeals Tribunal (AAT) for external review of the decision.

Gabrielle was confused:

  • The Senior Complaints Officer had previously advised that the decision not to fully reimburse her for the purchases was not a reviewable decision under the Act
  • At no time had Gabrielle sought an internal review of her plan, which, if declined, would allow her to have the decision reviewed by the AAT

In spite of these contradictions, Gabrielle applied to the AAT to have the decision reviewed, and the AAT scheduled a teleconference.

  • At the AAT teleconference in February 2019 the NDIA’s lawyer maintained the matter concerned a plan review, Gabrielle was clear it did not, the matter concerned reimbursement for approved supports, and that she was satisfied with her NDIS plan and was, on the NDIA’s advice requesting assistance from the Tribunal about full reimbursement for items of furniture. The Registrar was unable to confirm that the Tribunal had jurisdiction to hear the matter and scheduled a further teleconference.
  • In March 2019 at a second AAT teleconference, the Registrar was again unable to confirm whether the Tribunal had jurisdiction to proceed to a hearing and requested that the NDIA lawyer present legislative evidence which confirmed that reimbursement was a reviewable decision.
  • A third teleconference in May 2019 was an interlocutory hearing to determine jurisdiction. The AAT Deputy President found the NDIA’s position that the matter concerned a plan review confusing and reiterated Gabrielle’s position that she was satisfied with her NDIS plan: the matter was about full reimbursement for furniture purchased.
  • At a fourth teleconference in May 2019, the Deputy President confirmed the matter did not concern a plan review and therefore the Tribunal did not have jurisdiction to hear the matter. The AAT Deputy President and NDIA lawyer suggested Gabrielle could pursue the matter through the Scheme for Compensation for Detriment caused by Defective Administration.

The advocate submitted a compensation application in late May 2019 to the Department of Social Services on the basis that:

  • Gabrielle had received inconsistent advice and information from the NDIA for five months regarding whether she would be reimbursed for the cost of the furniture
  • The NDIA did not adhere to their internal processes for determining whether items purchased were reasonable and necessary.
  • Gabrielle was given false and misleading information by the NDIA that she could apply to the AAT for further external review of their decision to partially reimburse.
  • In spite of the AAT Deputy President advising the matter concerned reimbursement and not a plan review and hence not subject to AAT review, and after four teleconferences at the AAT, the NDIA continued to maintain that it was a matter which concerned a plan review and therefore a reviewable decision.

The Department declined in June 2019. They advised that the Scheme for Compensation for Detriment caused by Defective Administration was not applicable to their department. However, they advised to apply to the Department of Finance for an ‘act of grace’ payment, a discretionary power which allows payments to be made if a decision maker considers there are special circumstances and when all other avenues of redress have been exhausted. An act of grace payment request was submitted in July 2019.

The Department of Finance advised later in July that there would be no act of grace payment. Their advice was:

“The NDIS is a Corporate Commonwealth Entity (CCE). Generally, requests for an act of grace payment and waiver of debt are only available where the relevant Commonwealth entity is classified as a Non-Corporate Commonwealth Entity. As the NDIS is a CCE, we are not able to proceed with Gabrielle’s act of grace request.”

Gabrielle contacted the NDIS Minister’s (Mr Stuart Roberts) office and spoke to a ministerial advisor about the issue not being resolved in over 18 months. The advisor informed her that he would request that the NDIA’s legal team investigate the matter.

In August 2019, the advocate was contacted by the office of the NDIA CEO, who informed the advocate that a senior NDIA legal officer had investigated the matter in detail. He advised that the NDIA recognised the advice and processes were incorrect and the NDIA took full responsibility for the errors, including the decision letter which led Gabrielle to pursue the matter at the AAT.

They also advised that unfortunately, in adhering strictly to their legislative requirements, the NDIA was not obliged to reimburse GP for the furniture she had purchased. He apologised for the inconsistencies in process and incorrect advice provided to Gabrielle and confirmed again that there was nothing further that could be done.