Looking beyond the law and ensuring that client's are provided with the best care plan possible
In considering any care plan for a participant careful attention should be given to the relevant categories of supports. In short those support categories include core supports, capacity building and capital supports. Having a good understanding of the funding structure and the way in which these support areas can be utilised is extremely important when preparing plans in order to minimise the risk that it might be reviewed. For example:
- Core supports should be read in conjunction with the participants goals and they might include things that assist with activities of daily living such as transport, consumables or assistance with social and community participation. Every effort should be made to seek as much funding as possible under this category to ensure flexibility to the participant;
- On the other hand, capacity building supports are limited to those within the NDIS price guide to ensure that any support items are included under each support category and not excluded. For capacity building supports it is therefore extremely necessary to ensure that the NDIS price guide is consulted;
- Finally in regard to capital supports individual quotations which include an assessment, delivery, set up and adjustment and maintenance costs are absolutely essential to ensure proper consideration is given to the supports. This might include technology supports such as computer programs like dragon dictate or other voice recognition software.
Whilst the above is by no means designed to be exhaustive it is an indication of the types of things that providers should be thinking about when designing plans for participants. Ultimately, it should be remembered that a plan can be reviewed if there is a change in circumstances but that this will take time and would likely lead to a delay in receiving these supports. Therefore if it is likely that there will be a change in circumstances in the future, consideration might be given to applying to have funding bundled up to a certain figure having regard to the NDIS pricing structure which would enable provider and participants to be more flexible so that the support sought by the participant can be changed (so long as it is within the funding amount sought) without the need for further review of the plan.
If careful consideration is not given to the plans being designed, it could be that expenses incurred by a provider are not reimbursed. For example, in the decision of Complete Nursing and Home Care Pty Limited and NDIA  the Tribunal, not unlike the decision in XXYC by his Mother and National Disability Insurance Agency,  extracted above, confirmed that it did not have jurisdiction to review the NDIA's decision to refuse to pay invoices by the service provider. In that decision the provider, whilst displaying significant kindness, had provided services that were not approved to be funded as part of the particular plan and the NDIA declined to cover the support. In the circumstances it was incumbent upon the participant and/or their family to seek a review of the plan however, in doing so this would no doubt have lead to a delay in actually receiving the assistance that was required by the participant.
In the circumstances, where the Tribunal confirmed that it did not have the capacity to award payment for the provider for services it had given both reasonably and diligently it raises very real concerns about the practicality of delivering required services as the only options are either that a provider ceases it services as soon as funding is exhausted, incurs the cost themselves, suffering a loss, or alternatively seek payment directly from the participant.
On any view this decision highlights a significant costs exposure to care providers and is one that should be reviewed in the context of potential reform of the scheme. For the time being care providers should be aware of this limitation when designing their care plans and/or providing services in accordance with one on the basis that the plan cannot be departed from unless a review is sought and amended plan implemented.
The appeal process and how advocacy plays a big part in this process
If a decision is not acceptable to the participant in the first instance then they must apply for an internal review within three months of receiving notice of the decision.  The Tribunal cannot hear an application unless an internal review is requested first.
If a participant remains unsatisfied from the internal review then an appeal must be lodged in the Tribunal  within 28 days,  however time can be extended on application to the Tribunal. Once an appeal is lodged in the Tribunal, this requires the agency to forward all documents to the participant.  These are known as T documents and are provided within 28 days to the Tribunal as well as the person seeking a review and/or their legal representative.
After filing the appeal the matter is listed for a case conference, which usually takes place via telephone, whereby the matter is discussed generally to see whether it is ready to proceed. This can include discussions about whether further evidence is required. After the case conference the matter can then be referred to a conciliation which is a face to face meeting (in the usual course) and is an opportunity for the parties to attempt resolution of the claim and consider possibilities for resolution.
If a resolution is not possible then the matter is listed for a hearing and a decision is made by a member of the Tribunal.
If the participant or applicant is not satisfied by the Tribunal's decision, they can appeal that decision to the Federal Court within 28 days.  It is important to note that an appeal to the Federal Court can be made on a question of law only as the Federal Court cannot consider the merits of a Tribunal decision. A question of law may include, for example, whether the Tribunal incorrectly interpreted or applied the Act or whether the Tribunal applied or identified the correct test.
It is important to remember that there is no provision for legal fees in the Tribunal for NDIS matters which are not recoverable regardless of outcome. Therefore, if a choice is made to engage a legal advisor then this is done at the Applicant's own cost unless they are eligible for legal aid which can be granted in very limited circumstances.
Navigating the law in a way which achieves the best outcome for the participant requires a careful consideration of how the participant's care needs fit within the limitations of the legislation. It is not enough to know or make submissions about what is best for the participant. It is extremely important that in preparing any evidence that particular consideration is given to the wording of the Act, in particular Section 34 which has been extracted in the paper above.
Importantly, in order to best navigate the appeals process in a timely manner, the best evidence has to be put forward in support of the application at the earliest possible time. In a practical sense this means that independent expert evidence may be required. For example, if one is looking at a particular type of care plan then an independent occupational therapist expert may be required in order to give evidence and provide more weight to the recommendations being given by a provider. Not only does this strengthen the provider's recommendations but also provides an independent witnesses account who ultimately has a duty to the Tribunal to give evidence as an independent expert. Having this type of evidence in support cannot only strengthen the application, but along with good advocacy, can shorten the appeals process.
Practical tips on managing reviews of care plans
It is important to know the difference between the reviews that are possible under the Act. For example:
- Under Section 48 a participant may request that a CEO conducts a review of the participant's plan at any time. This is generally done at the request of the participant in circumstances where they feel that they are not receiving the appropriate supports they require;
- On the other hand, Section 100 of the Act allows for a review of a reviewable decision. For example, where the NDIA has given written notice of a decision that might directly affect a participant a request for review of this decision is done under Section 100 and not under Section 48.
The reason why the above distinction is important is that the purpose of Section 100 is quite distinct from a scheduled or requested plan review under Section 48. The Section 100 internal review considers whether a correct and reviewable decision has been made. However, a Section 48 scheduled plan review is to assess whether the supports in the plan are appropriate to meet the participant's current needs. Importantly the decision of a Section 100 internal review will be backdated to the original plan decision. The Section 48 scheduled plan review decision will not be.
The writer is aware that complaints have been made to the Commonwealth Ombudsman that the NDIA is encouraging participants to withdraw Section 100 internal review requests when a scheduled plan review in accordance with Section 48 is due to occur. The practical affect of this is that if a participant withdraws their Section 100 internal review request and they remain dissatisfied with the outcome of the scheduled plan review they will now need to re-apply for an internal review of the newly approved plan which will only be backdated to the date of that review and not the earlier date. This could result in significant out of pocket expenses being incurred by a participant or their family and whether by design or otherwise would serve to benefit the NDIA's budget requirements only and not the participant which is not the intention of Act. In short, it is important to know the difference between the participants review rights and to ensure that rights are protected at every step of the way if a participant is not happy with the supports that are being provided.
Proposing a time limit on a response from the NDIA and the internal review process
As outlined above in this paper the internal review process must be requested within 28 days. However, there is nothing to say that the NDIA must make a decision within a specified period of time.
The current law states that the NDIA must make a decision "as soon as reasonably practicable".  Importantly it must be remembered that applications to the Tribunal may only be made for review of a decision made by someone who has reviewed an original decision. 
Most operating within the NDIS scheme would be well aware of the delays experienced in receiving decisions regarding reviews of critical funding. It has been reported that the Commonwealth Ombudsman, as at November 2019, indicated that a third of the complaints made to its office regarding the NDIS are about the times taken to provide reviews.
In the decision of NNXF and NDIA,  the Tribunal indicated that if an internal review of a plan is not completed by the NDIA "as soon as reasonably practicable" in accordance with the requirement in Section 100(6) of the Act, then an Applicant can commence proceedings for review by the Tribunal without having to wait for the decision. This is because the Tribunal was satisfied that, pursuant to Section 25(5) of the Administrative Appeals Tribunal Act 1975 (Cth), the absence of a decision by the NDIA "as soon as reasonably practicable" meant that it was taken that the decision was affirmed thus making it reviewable. In that case 6 months had elapsed since the application for internal review was made. However, the decision did not go so far as to prescribe a particular time period that would be considered reasonable. In all of the circumstances each case must be considered on its own facts and one would think that the importance or urgency of particular supports would play a factor in determining whether or not "as soon as reasonably practicable" is 6 months or longer.
In another case of FDFF and National Disability Insurance Agency  , a judgment in September 2020 the Tribunal confirmed the following:
" Both parties accept the following. Eleven months had passed from 14 January 2019 when the Applicant requested a review of the decision made on 24 October 2018 to 12 December 2019 when he applied to the Tribunal for review. Therefore, it is open to the Tribunal to decide that the NDIA did not make a decision as soon as reasonably practicable as required by s100(6) of the NDIS Act. Isofind. That being so, because a decision was not made within the prescribed time, pursuant to s25 (5) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) as construed in NNXF and National Disability Insurance Agency  AATA 5552 the NDIA is deemed to have made a decision affirming the 24 October 2018 decision which is reviewable by the Tribunal pursuant to S103 of the NDIS Act."
Again this decision did not prescribe a specific time limit on the NDIA to provide a decision. Whilst it is clear under the Act that the NDIA must complete plan reviews and internal reviews "as soon as reasonably practicable", the absence of timeliness standards or average review completion time frames is problematic for both the NDIA and participants. In particular, the NDIA is unable to manage the expectations of participants about the time it will take to complete their request for review. This lack of certainty is a key driver of complaints about the NDIA.
Perhaps this is an area of reform that needs to be prioritised in order to give certainty to both the NDIA but most importantly to participants.
Defining what is reasonable and necessary is certainly something that needs to be considered on a case by case basis and in so doing each case that is reviewed either internally or by the Tribunal must take account of the specific facts and circumstances of an individual participant. The NDIS scheme is certainly not a perfect scheme and it is one that may require reform in the not too distant future in order to ensure that its processes are streamlined and that more transparency and certainty is given to its participants.
Notwithstanding the potential for reform, it is extremely important that participants and their supporters are aware of how the scheme functions in order to adequately design care plans with the potential for review and even appeal in mind. This will minimise the circumstances in which advocacy is required in order to get much needed supports funded and provided under the NDIS.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.