The Administrative Appeals Tribunal (AAT) has just released a mind-blowing judgement that could fundamentally alter the types of supports funded by the NDIS. It poses a question that has to be giving the NDIA massive anxiety attacks right about now: have we all got the reasonable and necessary criteria completely wrong?
The case itself concerns a young man with cerebral palsy and severe dysphagia who was appealing the NDIS’s decision not to fund his fluid thickeners and nutritional support products. We will be going into the details of the case itself in a later article, as it deserves the appropriate time and consideration. But, in short, the AAT ultimately came to the conclusion that it was reasonable and necessary for the NDIS to fund fluid thickeners and nutritional support products when prescribed by an Accredited Practicing Dietitian. This in itself is a HUGE WIN for the thousands of NDIS Participants who rely on this vital support.
The case was always going to be big because of the sheer number of people who rely of this support. But what the sitting member said about how the NDIS interfaces with other government services takes the judgment from big to groundbreaking.
The Agency’s case rested on the notion that fluid thickeners and nutritional support products should be funded by the healthcare system. The reasonable and necessary criteria, outlined in the NDIS Act, state that the NDIS will not fund a support if it would be more appropriately funded by another government body. As with everything legally, the language is important. So the exact wording of the criterion is:
“the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.”
The Tribunal and the Agency have both always interpreted this criterion to mean that the NDIS is not responsible for funding any support that they believe should be provided by another government agency. Whether or not the other government agency actually did fund that support was considered largely irrelevant. This position was backed up by the following passage from the 2011 Productivity Commission report that led to the Scheme’s formation:
“It will be important for the [NDIS] not to respond to problems or shortfalls in mainstream services by providing its own substitute services. To do so would weaken the incentives by government to properly fund mainstream services for people with a disability, shifting the cost to another part of government (such as from a state government to the NDIS, or from one budget ’silo’ to another). This ‘pass the parcel’ approach would undermine the sustainability of the scheme and the capacity of people with a disability to access mainstream services.”
In other words, the Productivity Commission was pretty worried that the NDIS would be used to fill in the gaps where other government services were not meeting their obligations to people with disability. This could impact the financial sustainability of the Scheme and disincentivise other government providers from creating inclusive services. The Agency espoused this anxiety with passion. As a result, we have a situation where people with disability were losing supports they had previously been provided because they were now deemed the responsibility of another part of government.
In this case, the NDIA argued that as the support was partly intended to prevent health complications, then it was the funding responsibility of health services. Despite the fact that health agencies in NSW do not fund this support.
However, the Deputy President of the AAT basically said everyone had been misinterpreting the legislation. He argued that the word “offered” in the criterion suggests that the support actually needs to be made available by another government service provider. And, to be honest, he has a point. How did we all not notice that “offered” before? He also did not feel it was the job of the Agency to determine what supports the other parts of government should be providing.
As to the Productivity Commission’s statement, the sitting member gave us all a not-so-subtle reminder that their word is not the law. And regardless, the Productivity Commission themselves acknowledged that there would be many cases where the division of services is not quite so clear-cut.
The NDIA tried to direct the Tribunal to the Operational Guidelines and COAG Agreements which divide, in quite broad terms, the funding responsibilities of the NDIS compared to other government departments. But again, the sitting member pointed out that these documents were not law. As a general rule, if policy contradicts legislation, the courts must disregard the policy.
In any case, the AAT did not believe that fluid thickeners and nutritional support products could be considered a “treatment” for a health condition or “preventative health care,” as the Agency was arguing.
It is hard to even begin to contemplate how broad the implications of this judgment could be. Every single person in the NDIS could find themselves eligible for supports that they were previously not entitled to. How Scheme interacts with all other areas of government, from education to health to justice and everything in between, could be fundamentally changed. In other words, and I really can’t stress this enough, THIS IS BIG!
The Agency has 28 days to decide whether they want to appeal the decision and take it to the Federal Court. Whatever they decide, we’re in for a wild ride.