Welcome to Part 2 of our series that delves into PM* v the NDIA, the nearly all encompassing Administrative Appeals Tribunal (AAT) case that attempts to resolve controversial issues in the NDIS. PM, the Participant, is a young man who lives with severe schizencephaly and epilepsy, alongside multiple other disabilities. He and his parents have challenged numerous aspects of his NDIS Plan which they felt were unsatisfactory. The case is so big that one article could not do it justice. So if you have not read Part 1, we recommend going back and at least looking over the background. Because this week we are jumping straight into the dispute around PM’s Core supports funding and wheelchairs.
Like its namesake in the center of Earth, Core funding is the base from which everything else is built upon. A Participant can have the best Capital and Capacity Building funding in the country, but if their Core budget does not meet their needs, then it is going to be very hard for them to achieve their goals.
We will be exploring three key areas of Core funding that PM and his family disputed with the NDIA. While Core budgets can be used completely flexibly within Core line items, the calculations behind the budget impact the total amount of funding Participants are entitled to and, by extension, what they can do with it.
PM and his family believed his Core budget was short by a not-so-insignificant $61,010.48, with four key contention points:
Activities of Daily Living
PM had requested funding for 1.25 hours of assistance in the home in the morning and 5 hours in the evening. While the morning hours were funded, only 3 evening hours were included in his contested Plan.
PM’s Case Manager argued that 3 hours in the evening was not enough time to allow him to eat, shower, stretch, take his medication and prepare for bed. This Case Manager has been working with PM and his parents for 15 years. By contrast, the Planner who prepared the Agency’s funding model acknowledged that she had never been in contact with the Participant or his family.
In the end, the Tribunal ruled in favour of the 5-hour model, citing the Case Manager’s professional expertise and intimate knowledge of the Participant. This provides an interesting precedent for Planners. It encourages them to place greater weight on evidence from professionals with greater knowledge of the Participant. An approach that does sound an awful lot like commonsense.
Sustaining Informal Supports
PM lives at home with his parents, both of whom are in their late 60s and have health problems. He has expressed a desire to continue to live with them into the future. Both sides agree that in order to sustain this arrangement the family will need some ‘respite’ supports. As we have recently explored, ‘respite’ has become a controversial issue in the NDIS. The Agency has adopted the widely held view that the term is offensive as it unfairly implies that people with disability are a burden that carers need a break from. Nevertheless, the support itself still exists in the Scheme. Often it takes the form of additional in-home care or short term stays at a facility, but there is also the option for families to explore more innovative options that produce the same outcomes. In PM’s case, there was significant disagreement between the Agency and his family about what the form the support should take.
PM made an interesting request for funding for his parents to sleep in a hotel three nights a week. Under his current funding arrangement, his parents do the ‘night shift’ 4 nights a week and have professional support workers 3 nights a week. However, their house is very small and even with the support workers present they cannot rest properly due to all the activity and noise in the house. Naturally, this has a detrimental affect on their health. PM and his team argued that sending his parents to a local hotel three times a week for $90 a night was more economically viable than the Agency’s offer for him to stay at a facility 12 weekends a year.
However, the Tribunal agreed with the NDIA that this support does not meet the reasonable and necessary criteria. It does not help PM reach his goals or support his social and economic participation. Given the legislation, this is a very reasonable conclusion for the AAT to reach. Sadly though, it is not a great deal of help to his family.
As an alternative, the NDIA offered PM funding to stay at an offsite facility for 12 weekends a year. However, PM and his family rejected this, arguing that they have explored offsite facilities in the past and have been unable to find one that could meet his support needs. Moreover, even if they could find a suitable facility, transporting all of his equipment would be ‘quite a task.’ Not willing to leave it there, the NDIA argued that he should still go to an offsite facility because the experience would be beneficial to build his independence and to prepare him for if he has to transition out of home. However, the Tribunal reminded the Agency of a little concept called ‘Choice and Control.’ Even if PM could benefit from an overnight stay at an offsite facility, the AAT told the NDIA:
So in the end, the Tribunal rejected both options put forward to help maintain the support that PM’s parents currently provide, leaving the family without any such supports. The AAT expressed hope that the extra daily living support offered to the family in the proceedings will go someway towards alleviating pressure on the parents. Yet the case demonstrates the importance of providers coming up with innovative solutions in this space. There is a real opportunity here for a provider to work with the Participant and the family to find a solution that could actually work for everyone. This is just one case, but it could well be a problem that many Participants are facing.
PM’s family currently purchases blueys, disinfectant, hand gel, syringes, booster pads, gloves and visalax out of their own pocket. These items help PM manage his continence, reduce the risk of infection and maintain his equipment. However, the Agency argued that these were day-to-day expenses. They quoted Rule 5.1 (d) of the Participants Rules that says all supports must be required:
“solely and directly as a result of the disability support needs.”
PM and his family responded by arguing that he only needs these items due to his disability. However, the Tribunal agreed with the NDIA he needed these consumables for a variety of reasons, including his disability but also due to his health conditions and for general hygiene.
To me this highlights a problem in the wording of the Participants Rules. It appears that the word “solely” was what tripped them up. Yet it is quite a high bar for any item to “solely” relate to a person’s disability. People’s lives do not just easily divide into different departments- health, disability, transport etc. There will always be many areas of intersection. We cannot just refuse to even partly fund anything in those intersections. Moreover, I would argue that the spirit of the Rule is to prevent people claiming for regular life expenses. In what world are blueys and booster pads expenses that everyday Aussies would pay? But, anyway:
The Wheelchair Mysteries
PM has owned his wheelchair for over 10 years and really feels that it needs to be replaced. His application included a report from an Occupational Therapist who concurred and noted that the wheelchair was not even working on the day of their appointment. If his wheelchair breaks down completely, he would be confined to his home and unable to access the community. The NDIA responded that the OT report was not sufficient. In response, another Wheelchair Assessment Report was provided.
For the life of me, I cannot figure out why that was not the end of it. I have read this section of the ruling multiple times, and the Agency does not seem to have presented any arguments to explain why they are not willing to fund a new wheelchair. It is fair enough if they wanted more information, but the latest OT report came in months ago. Why on earth take this to the AAT? But you will be glad to know, the Tribunal accepted the OT report and ruled that he should get a wheelchair.
That is PM v NDIA in a nutshell. It is a case where both sides won and lost. Recently, we were told by people who worked closely on this case that Disability Advocacy were integral to PM’s appeal. It has previously been reported that the Agency spent $6 million on legal fees last year. Without the support of Disability Advocacy, Not-For-Profits, pro-bono firms, Legal Aid, Community Legal Centres and community organisations, Participants would not stand a chance going up against the Goliath that is this legal battle.
Finally, a friendly reminder to keep your eyes peeled for AAT ruling. They might look boring (and truthfully some of them are), but the Agency would not be spending millions on lawyers if they were not also exceptionally important. And staying on top of them does not have to be that hard. The Brotherhood of St Laurence and LaTrobe University put out a handy quarterly digest of key cases. Plus, we will always be around to put the big cases right in your mailbox.
It is everyone’s responsibility to ensure that the Agency is upholding precedents that are being set. Participants and families make huge sacrifice to take cases to appeal, it is our job to make it worthwhile.
*DSC has made the decision to not publish the full names of adult AAT applicants. We believe that all NDIS Participants should have the right to privacy and do not wish to contribute to undermining it.