Choice and control. Sounds easy, huh? In Real Life, bloody challenging. The NDIA has a tricky job to implement choice and control for Participants, and at the same time heroically challenge the systemic barriers of inclusion that mean real choice and control does not yet exist for many people with disability. What’s an Agency to do?
This tension is illustrated beautifully in the appeals system, with an example being reported by Support Coordinators and advocates across Australia*:
A Support Coordinator’s role is to assist a Participant to implement their Plan and engage with providers, mainstream services and the community.
If a Participant does not have informal supports in their life, they may rely entirely upon a Support Coordinator to assist them to engage with the NDIA too.
If the appeal is about increasing their supports, there may be a conflict of interest for the Support Coordinator, or the Support Coordinator’s employer, who may receive direct benefit from the Participant’s increase of supports.
If the Support Coordinator is the only person that the Participant relies upon, they may choose their Support Coordinator to assist them to appeal. This is exercising choice and control.
The NDIA may not accept the appeal from the Support Coordinator as there is a perceived conflict of interest.
Let’s dig into the detail, but hold on tight, things are going to get complicated.
What does the Law say?
The NDIA is bound by the National Disability Insurance Scheme Act 2013, and section 100 Review of reviewable decisions says that ‘(2) A person who is directly affected by a reviewable decision may request the decision-maker to review the reviewable decision’. This can be by ‘sending or delivering a written request to the decision-maker; or making an oral request, in person or by telephone or other means, to the decision-maker’.
This section forms the basis of all appeals. It means that if you don’t like your Plan, you can appeal. The section goes on to say that if the Agency receives a request to review a reviewable decision, then they must review the decision.
What do the NDIS Operational Guidelines say?
The NDIA provides Operational Guidelines about appeals, but they are silent on whether a Support Coordinator or other party can assist (see here).
So where is the policy behind this decision not to accept a review? Why is the NDIA rejecting Support Coordinator assisted reviews? We can’t know for sure, but our best guess may be that the NDIA has decided that the Support Coordinator is acting on their own behalf, not the Participant’s behalf. Therefore, the Support Coordinator is ‘not a person affected by the decision’ and the appeal is not valid. Complicated, huh?
So, who then is ‘A person affected by the decision’?
In refusing applications for reviews assisted or lodged by a Support Coordinator, and then deciding that the Support Coordinator is not a person affected by the decision, the NDIA may be misinterpreting this section of the legislation.
The function of the legislation is to ensure that appeals can’t be lodged if they don’t involve the person lodging it. For example, I can’t lodge an appeal about Clive Palmer’s tax return because it has nothing to do with me, even though I’d quite like to**. However, the intent of this legislation is not to restrict a Participant’s ability to lodge an appeal with the support of a third party.
If this logic were extended, anyone apart from the Participant would not be able to provide support to lodge an appeal as they are not affected by the decision directly. A Participant’s brother, friend, mother or advisor could not assist, even if the Participant wanted them to. NDIA’s interpretation that the Support Coordinator cannot assist with the preparation or lodgement of an appeal could be a confusion in the interpretation of this section, as the appeal is still about the person and their Plan, even if the Support Coordinator eventually benefits from a successful appeal.
Can Support Coordinators help with appeals?
Support Coordination is a capacity building funded support, and the Support Coordinator’s role is:
to assist the Participant to understand their Plan and the role of broader systems of support,
to connect to the broader systems of support and assist the Participant by linking to the broader system,
to coach, refine and reflect on challenges that come up, and;
to prepare for their plan review and their outcomes (NDIS guide here).
The Support Coordination role is to assist the person to build their skills, implement their Plan, and engage with mainstream service systems. Is assisting a person to lodge their appeal part of what is required to engage with the NDIS and mainstream service systems, or is it advocacy? When does coaching become advocacy? Is assisting someone to access their legal rights capacity building? These aren’t easy questions to answer, and negotiating these boundaries should be part of an ongoing discussion about how best to support people with disability as the Scheme grows.
Old models of case management have been deliberately remodelled with the creation of Support Coordination and LACs to ensure that capacity building and independence drives practice. However, we aren’t there yet, and a more nuanced response is required. Support Coordinators don’t have the legal authority to act on a Participant’s behalf, that’s a lawyer or advocate role. But they do have a role to play in supporting people to build the skills to access mainstream services. The question is whether assisting people to access the appeals system is part of the service offered by Support Coordinators, in the same way that accessing health or education is. If the answer from the NDIA is a firm NO, what is in place to support vulnerable people who have no-one else in their life to support them?
What about the National Disability Advocacy Program?
Appeals of an NDIS decision is funded separately to the NDIS for very good reasons. Natural justice means that everyone has the right to an advocate and that NDIS doesn’t have a say in who gets one and who doesn’t. The DSS (Department of Social Services) has funded advocacy in each state, and this includes some specialist services such as community legal services, and Legal Aid. In their description of what they will and won’t fund, the DSS has said that Support Coordinators have a conflict of interest and should not be assisting in advocacy (see here).
It’s great that advocacy is funded, especially in a new system such as the NDIS that is being tested through appeals. However, the problem arises for Participants when it is hard to access advocates because you don’t know how, or there aren’t any available, or there are waiting lists. Or perhaps your Support Coordinator is the only person you feel comfortable with.
Why doesn’t the Participant get a guardian appointed so it’s clear?
Some people with disability have guardians in place to make decisions for them, particularly if their disability means that they have challenges in decision making. For some people, this works very well, with family members and guardians making sure that the person with disability is engaged through all steps of the decision making process. For others, having someone else speak for them means they have little authority or autonomy over their lives. Current thinking about how best to make sure that people with disability have a voice is that we should focus on building the capacity of people to make their own decisions as much as possible. The NDIS embodies this throughout the legislation with a commitment to capacity building. Best practice in this area is that a person with disability should only have a guardian or nominee in place as a last resort (see here for least restrictive practice), so the person has as much control over their lives as possible. This is why there are a lot of Participants who need support, but don’t have a formal arrangement in place. This is how it should be. Where it becomes complicated is in scenarios such as appeals, where a person requires support to lodge an appeal, but doesn’t have anyone to help, and doesn’t have an advocate.
Is this practice denying Access to Justice?
In Australia, we have principles that recognise that people who experience disadvantage, such as through poverty or disability, face significant barriers accessing the justice system. To counter this, the Australian government has committed to ensuring that people with disability have the same access to justice and a fair outcome through ‘natural justice’. This is reflected in the NDIA appeals system where appeals can be lodged through writing, phone call, or face to face, designed to have a ‘no wrong door’ policy so people with disability can access the appeals system in a way that is right for them. By rejecting appeals lodged by Support Coordinators, is the NDIA obstructing access to justice? Maybe.
Can the NDIA say NO to an appeal? And should they?
If the NDIA does not accept an appeal for any reason, they may risk denying a person’s access to justice. Whether the appeal has merit, and whether the Support Coordinator has too much power or influence, should arise and be decided upon during the course of the appeal. It is not, and should never be, the NDIA’s job to refuse an appeal, and they are at risk of breaching a person’s fundamental human rights if they do so. If the NDIA are concerned about the influence of Support Coordinators, this needs to be addressed directly, rather than risking a Participant’s right to review, and by extension, their human rights. The legislation clearly says the appeal ‘must’ be accepted, therefore the NDIS do not have the authority under the legislation to reject an appeal.
What could the NDIA do instead?
The NDIA is right to worry about whether a Participant is being influenced by a Support Coordinator who may have a conflict of interest. However, there are ways the Agency could address this issue without risking the person’s access to justice:
Have faith in the appeals system to make the right decision regardless of who lodged the appeal or assisted the person.
Develop clear guidelines for Support Coordinators about what their role is, and clarity about when coaching and assisting a Participant becomes advocacy.
Seek clarity and develop a policy about ‘who is a person affected by the decision.’
Develop policy about what is advocacy and who can, and cannot, do it.
If there is some concern about a Support Coordinator’s practice, address this with the Support Coordinator. If they are claiming to be paid for work that is outside the scope of their provider role, use this as a mechanism to address the breach.
Address the need for further advocacy supports with DSS, so that Participants can access advocacy easily and do not need to rely on Support Coordinators for this function.
Develop clearer guidelines about choice and control.
Approach policy with more nuance - sometimes a Support Coordinator assisting a Participant to appeal may be best practice. The risk of placing barriers to natural justice needs to be weighed against the risk of overstep by a Support Coordinator.
This issue is about how to balance a person’s right to justice with the need to build good practice in Support Coordination. The NDIS is building, and while it may ultimately build to a more inclusive Australian society where people with disability are included and have a range of people in their lives who can assist them with the appeal process, this simply does not yet exist. The choice in Choice and Control isn’t real for people with disability, and they may have no choice but to rely on a Support Coordinator, the one person who is a constant in their life. The challenge for the NDIA is how to balance the two safely.
* It’s hard to get a sense of how widespread this practice is across the NDIA offices, but there are anecdotal reports from a variety of sources.
** really really really like to.