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NDIS UNDER THE SPOTLIGHT – Impact on Elder Care & Powers of Attorney

NDIS SCHEME

The National Disability Insurance Scheme Act 2013 (Cth) ( NDIS) came into effect in March, 2013.  It set out the framework for the Scheme and the establishment of the National Disability Insurance Agency (NDIA).  The NDIS came into effect on 1 July, 2013.  It is estimated that around 460,000 people access the scheme.[1]   

It is a tiered system, with its primary focus being the provision of long-term care and support to people with a significant and permanent disability, with age and residency criteria.  Importantly, people over the age of 65are prohibited from accessing the scheme.  This is an important area of concern for those who are nearing 65 and are looking at their long-term care needs.  In your eldercare planning you will need to explore how you can transition from the scheme in a way that your support needs as you age.

“The object of the scheme is to provide support to people with disability and is designed to replace the prior system of disability care and support National Disability Agreement.  The objects of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) are set out in section 3 and include to give effect to Australia’s responsibilities under the Convention on the Rights of Persons with Disabilities established at the United Nations Headquarters in New York on 13 December 2006,[8] and facilitate the development of a nationally consistent approach to access to, and planning and funding of, supports for people with disability.[9] The NDIS Act also states that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.[10][2]

But now the scheme has now matured and is coming under pressure for a review by the Federal Government with a focus on costs burdens.[3] The NIDS cite the 2017 Productivity Commission Study Report into NDIS costs which forecast costs in the range of $30.6 Billion by 2021-2025.[4]  Reflecting the numbers who access the scheme, this year alone, the Tribunal has published no less than 57 decisions.   The complaints that give rise to those Tribunal decisions generally fall into two categories: matters dealing with eligibility to enter the scheme and review of the agency’s decisions in respect of support plans.

Of the many decisions delivered by the Tribunal this year, Nika and National Disability Insurance Agency [2021] AATA 2127 (“Nika”) is a useful guide on eligibility to participate in the scheme.  We profile the decision here.

ELIGIBILITY -NIKA

Issue

This matter involved the question as to the whether the applicant met the disability requirement under the legislation. Curiously, the legislation does not contain a definition of disability.  Rather the language used speaks to impairment and the effect of that impairment.  Primarily, does the impairment substantially reduce the functional capacity and/or psychosocial functioning of the individual? 

Part 1 of Chapter 3 of the NDIS Act deals with how to qualify for access to the scheme.

Section 21 sets out the age and residence requirements.

Section 24 sets out the disability requirements.

Section 25 sets out the early intervention requirements.

Section 27 states that there may be prescribed rules made to make the assessments.

Subsection 209 (1) the NDIA must consider the prescribed rules in making its assessments.

“The relevant rules are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the NDIS Access Rules)”[5]

“There are also operational guidelines issued in relation to the access criteria under the NDIS Act, the ‘Access to the NDIS Operational Guideline’ (the Access Guideline)[6]

An applicant must meet either the section 24 or section 25 requirements as well at the section 21 requirement.

The Tribunal must give consideration to all of the material before it and must take into consideration the policies of the agency.[7]

To qualify for participation in the scheme under the disability requirements, the applicant must have at least one impairment that satisfies “[e]ach of paragraphs (a) to (e) of subsection 24(1) of the NDIS Act”.[8]

They are :

Section 24 Disability requirements

A person meets the disability requirements if:

(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and

(b) the impairment or impairments are, or are likely to be, permanent; and

(c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:

(i) communication;

(ii) social interaction;

(iii) learning;

(iv) mobility;

(v) self‑care;

(vi) self‑management; and

(d) the impairment or impairments affect the person’s capacity for social or economic participation; and[9]

(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.

For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.

Facts

Here the applicant contended that “she has a disability that is attributable to:

complex fracture of the left leg;

chronic post-traumatic musculoskeletal pain;

adjustment disorder with anxiety and depressed mood; and

PTSD”[10]

The applicant suffered significant injuries in a motor vehicle accident in June 2005. Those injuries were a compound fracture of her left leg with ongoing associated pain for which she underwent numerous surgeries and she suffered a psychological disorder as a result of her accident and injuries. She suffered adjustment disorder and pain disorder.  She had a variety of medical and allied health professionals providing her treatment, in particular a psychiatrist who specialised in pain disorders. From the time of her accident her circumstances altered significantly. Initially she was assisted by family who came from overseas to help her manage day to day life. She eventually married and obtained employment around her limited capabilities. She received an insurance financial settlement because of the accident, the proceeds of which were applied to a home that was built for her specific needs.

Prior to the introduction of the NDIS the applicant was in receipt of “help from CentraCare and she was seeking to replace it with the NDIS as it has ceased due to the change of system.”[11] By the time of her application for review before the tribunal she was married. Her husband and various members of her family network assisted her in her day-to-day life. At the time of the hearing, she was working 5 hours per day four days a week under a work restriction an approved reasonable adjustment plan.

Her position was that her injuries caused her to have reduced capacity in social interaction or economic participation.

The agency accepted the applicant had all but one of the disabilities she claimed.  The agency accepted they were permanent, and they accepted that they affected her social or economic participation.

They did not accept that she suffered from PTSD nor did they accept that her impairments satisfied the requirements as to substantially reducing her functional capacity to undertake social interaction, mobility and self-care. Also, in issue was whether she needed support from the NDIS for her lifetime, would she benefit from early intervention supports which would reduce her future need for supports.[12]

The matter before the tribunal was a review of the decision of the NDIA to refuse her access to participate in the NDIS.

Analysis

There was a preponderance of evidence before the Tribunal from no less than 10 medical professionals including general medical practitioners, psychiatrists, orthopaedic surgeon, Occupation Therapists, physiotherapists, and a podiatrist [13], and a significant portion of the discussion in the decision considered the evidence of these various medical professionals.   At the heart of the decision was the applicant’s ability to meet the thresholds thrown up by section 24.   Citing the appeal decision of Mulligan[14]the Tribunal emphasised that the decision-making process is not arbitrary, nor one in which comparative qualitative judgments are made.  “It is sufficient for a person to have substantially reduced functional capacity in relation to one activity.”[15]

In reviewing the evidence the Tribunal found that while PTSD had been noted in some of the medical records there was “no current evidence before the Tribunal as to the Applicant suffering from, or being diagnosed with, PTSD.“[16]

Accordingly, the impairment she claimed that was attributable to the PTSD was not permanent nor likely to be permanent.

The focus then shifted to the degree to which her other impairments affected her functional capacity or psychosocial functioning in undertaking the activities of social interaction, mobility, and  self-care.  Here the decision substantially assists applicants in understanding the analysis undertaken when determining the accessibility criteria.

The applicant’s evidence was that she:

“ (a) Requires assistance from other persons in relation to social interaction as a result of her impairments including:

(i) Transport to and from locations over her driving capacity (15-25 minutes)

(ii) Pushing her wheelchair

(iii) Physical supervision and support with walking as she is at high risk of a fall

(b) Requires assistive equipment in relation to social interaction as a result of her impairments, including a:

(i) Walking stick

(ii) Wheelchair

(c) Is entirely unable to participate in social interaction or to perform tasks or actions required to undertake or participate in the activity, including:

(i) Attending the community or social events more than a 15 – 25-minute drive away

(ii) Attending the community or social events that require more than her capacity for walking / standing / sitting.”[17]

On this issue the decision steps through the Access Guidelines in a detailed and considered manner again reviewing and applying the Access Guidelines.

“Clause 8.3 of the Access Guideline states that mobility ‘means the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting out and out of a bed or a chair, leaving the home, moving about in the community and performing other tasks requiring the use of limbs. These are the relevant tasks or actions the Tribunal will consider in determining whether the Applicant’s impairments result in a substantially reduced functional capacity to undertake the activity of mobility.”[18]

Access Guideline, cl 8.3.1.  “A person will be considered to be unable to participate effectively or completely in an activity if they cannot safety complete one or more tasks required to participate in an acceptable period of time. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.”

The Tribunal found that there is a distinction between being able to undertake a task, albeit more slowly than others[19]to being substantially impaired in undertaking the task.    Here the Tribunal found the applicant could undertake the tasks albeit more slowly than others.  Further that the use of a walking stick was a device that enabled her to function and one that was available through other means.

On the issue of early intervention, the Tribunal accepted the agency’s submission that the applicant would likely need supports for the rest of her life and that those supports would likely increase.  Accordingly, early intervention would not benefit the applicant by reducing her future needs for support.[20]The Tribunal agreed.

Summary

“In summary, while accepting that the Applicant’s chronic post-traumatic musculoskeletal pain and adjustment disorder with anxiety and depressed mood are permanent and that they affect the Applicant’s capacity for social or economic participation, the Tribunal does not consider that the Applicant has a substantially reduced capacity to undertake or participate in the activities of social interaction, mobility or self-care or that she satisfied the early intervention requirements. For the reasons, as set out above the Tribunal, is not satisfied that the Applicant meets the access criteria set out in sections 24 or 25 of the NDIS Act.”[21]

CONCLUSION

Many Australians suffer a disability, approximately 1 in 5, increasing to 2 in 5 over the age of 65.  The over 65 cohort represents near half of all people with a disability in Australia.[22]  This tells us that succession planning is more than deciding where your assets go on your death, it is increasingly becoming a process of determining how we can arrange our affairs to live comfortably into our older years.   Many people need help to do this.  One way they seek that help is through appointing people as their power of attorney.  These factors are likely to place a bigger burden on those who accept appointments as Powers of Attorney.  Any person who accepts a Power of Attorney, has a positive duty to act in the best interest of the donee/principal.  That includes responsibility for accessing all available care for their principal to ensure they live a comfortable life. What is not commonly understood is that special terms can be negotiated into the document.  If you would like to know more about the obligations and duties of a Power of Attorney please make an appointment to see us.


[1] For more information about the chronology of the scheme please see this link: https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1819/Chronologies/NDIS#:~:text=Australian%20Government%20enters%20into%20heads,media%20release%2C%208%20May%202013.

[2] At [13] Nika and National Disability Insurance Agency [2021] AATA 2127 (6 July 2021)

[3] https://ministers.dss.gov.au/speeches/7341

[4] https://www.nds.org.au/news/2021-federal-budget-an-ndis-cost-blowout-or-just-natural-growth-as-planned

[5] At [16]

[6] At [17]

[7] At [15]-[17] citing G v Minister for Immigration and Border Protection [2018] FCA 1229(2018) 266 FCR 511, 564 [266].

[8] At [27]

[9] Emphasis on the and added.

[10] At [28]

[11] At [135]

[12] At [27-29]

[13] At [40]

[14] At [197]

[15] above

[16] At [212]

[17] At [231]

[18] At[245]

[19] At [273]

[20] At [299]

[21] At [303]

[22] https://www.and.org.au/pages/disability-statistics.html