Zoran Pelovski’s case in the Administrative Appeals Tribunal (AAT) should be simple. He wants to revert a decision made by the National Disability Insurance Agency (NDIA) to have the agency manage his disability funding.
The 60-year-old instead wants to be supported to make his own choices about who he can hire as his support workers — specifically a sole trader and family friend — rather than being limited to workers registered with the National Disability Insurance Scheme (NDIS), as required to under agency management.
Coupled with the tribunal case and Pelovski’s complex mental health history, this means he hasn’t been able to find paid disability support — or use his funding — since the decision was made in September 2021. He’s relying instead on an unpaid family friend, Antoneta Krzeva.
The tribunal case has snowballed, dragging on for 10 months. The NDIA has asked for extension after extension regarding filing documents, lost key documents sent to it, and ignored questions for weeks only to respond the day before hearings as the case bounces from tribunal member to tribunal member.
The NDIA has gone so far as to hire a private psychiatrist to assess Pelovski, who suggested — without meeting him — that he be placed in an aged care facility in the near future.
Pelovski’s situation has become so bad that his primary carer, Krzeva, is tempted to drop the AAT case and cut ties with the NDIS altogether given the funding isn’t being used. She fears the ongoing court case could see him placed under a guardianship order, limiting his independence.
As previously covered by Crikey, there’s a stark power imbalance between AAT applicants and the NDIA, with the agency spending millions on high-profile lawyers, while applicants rarely have lawyers. More than one-third of all NDIS-related cases in the AAT are withdrawn by the applicant.
Struggling for support
Krzeva and Pelovski have deep family ties. Their mothers met in Darra, Brisbane, in the 1970s several years after immigrating from Macedonia. Pelovski’s mother became a godparent to Krzeva; Krzeva became a godsister to Pelovski.
Pelovski’s life has been complicated. In 1981, before his diagnosis of paranoid schizophrenia, he murdered his 21-year-old sister, Violeta. He spent four years in prison and another seven years in a psychiatric hospital.
His mother never recovered after the murder of her daughter. She never visited him in prison or in the hospital, and relied on Krzeva to look out for him. When Pelovski’s mother was dying, she begged Krzeva to look out for him. “It was her dying wish,” Krzeva told Crikey, and one she takes seriously.
Krzeva, now 52, has been a lifeline for Pelovski. As a disability support worker, she’s been instrumental in getting him approved for NDIS funding in 2018 after he had been rejected. While he initially had third-party organisations looking after him, Krzeva believes his supports weren’t up to standard; she claims he was left with a clogged toilet and piles of dirty laundry and unclean bed linen.
She’s also claimed that invoices were being submitted before services had taken place and that services were being booked without her or Pelovski’s consent. A third-party organisation also didn’t submit invoices on time, with the company threatening to take legal action against Pelovski, according to Krzeva. This is an issue that has previously been raised by NDIS participants. A rotating roster of support workers made it difficult for Pelovski to develop a rapport with those caring for him.
Pelovski’s NDIS package is worth more than half a million dollars annually to fund assistance, including personal care, cooking, cleaning and laundry, for nurses to oversee his medication, and social outings. He also receives a disability support pension.
Krzeva has become his support worker, hired through a third-party agency, and plan nominee, helping him organise his support and funding. She’s also become his enduring power of attorney, as he doesn’t have the mental capacity to make his own decisions. While she was employed as a sole trader, she has been screened by the NDIS and holds a number of care-related certificates including a Certificate III in community services work and more than a dozen certificates ranging from dementia, first aid, antipsychotic medications and infection control.
Krzeva took over most of Pelovski’s care, charging $45 an hour to look after him for eight hours a day, and $150 a night when he stayed with her. For the past two decades, he’s been living between her residence and the house he inherited from his family. In January 2021 she invoiced $17,970 for her services.
The NDIA believes her holding these three roles — plan nominee, support worker and enduring power of attorney — presented a conflict of interest, and that an agency should manage Pelovski’s funding instead.
Attempts to manage conflict of interest
Pelovski told Crikey he wants Krzeva to be his support worker. His family doctor wrote a letter stating that his mental health had improved “with family support” under Krzeva. A former psychologist for Krzeva’s family also told Crikey he believed Krzeva had Pelovski’s best interests at heart.
Krzeva was proactive in disclosing and managing the conflict of interest, raising her involvement with the NDIA six times between 2019 and 2021. She organised for another person to also serve as his plan nominee alongside her, and another person to act as a support coordinator. She’s also suggested her paid hours with Pelovski be capped.
But the NDIA didn’t update its paperwork to reflect the additional plan nominees. Instead, in September 2021, it took over Pelovski’s funding management. Krzeva said this took place over the phone, without directly consulting Pelovski. She believes the issue could have been sorted “over a cup of coffee” with the NDIA to explain the difficulties in finding alternate care.
Krzeva has been on the hunt for a new agency to take over his care. However, of the 24 companies she’s contacted, none has been able or willing to take Pelovski on, either citing that Pelovski’s case was too complex, the company didn’t wish to be involved in a case in front of the AAT, or were not taking on new clients.
Krzeva is working as an unpaid carer and advocate — something she can’t financially afford. For the past 15 months, she’s been living off the carer’s allowance, equating to just $9 a day.
An uphill AAT battle
Along with multiple extension requests lodged by the NDIA — in one case requesting a two-week extension the day before the hearing — the NDIA has also lost documents and incorrectly asserted Krzeva doesn’t have any disability-related qualifications. NDIA lawyers have failed to fill in information about witnesses they intended to call, instead submitting a blank hearing certificate; haven’t responded to letters sent; and haven’t replied to a series of questions for more than two weeks, instead only providing responses the day before Pelovski’s team was due to file their statement of issues.
“The onus is constantly on me to correct it,” Krzeva said. “This is a full-time job and I will never get my life back.”
The NDIA is represented in its case by legal firms Sparke Helmore and Murray Gleeson Chambers. Since 2019, the NDIA has contracted Sparke Helmore for legal services worth nearly $20 million. Sparke Helmore declined to comment.
Krzeva has spoken to advocacy organisations and pro bono lawyers about assistance, and secured a barrister for three set days early next year. If hearings continue to be delayed, they will lose access to this barrister.
So far, three tribunal members have been involved in the case, including former Liberal politician Pru Goward. Last year, Goward wrote an op-ed claiming the “underclass” was “view[ed] with alarm as huge cost centres” by government agencies and that they were “almost entirely lacking [in] discipline”. Pelovski’s team lodged a complaint, and the previous tribunal member has since been reappointed to the case.
NDIA lawyers accused the disability advocate and volunteer solicitor working on Pelovski’s case, Karen Kline, of making threats against Gowan because of the complaint and her decision to go to the media. “It’s the most adversarial, toxic case I’ve ever worked,” Kline told Crikey.
The NDIA is seeking to place Pelovski on the stand to cross-examine him — something Krzeva believes is unethical as he doesn’t have a legal decision-making capacity. A private psychiatrist hired by the NDIA said Pelovski was likely to deteriorate and that an aged care facility would be more appropriate in the future. The report states the psychiatrist consulted “in an anonymous fashion with a colleague who regularly treats patients with schizophrenia across the lifespan of the public sector”. He has never met Pelovski and would not legally have access to his medical records.
Pelovski is awaiting news as to whether he’ll be accepted to have his case heard by a new independent oversight committee, recently announced by NDIS Minister Bill Shorten to help clear the backlog of NDIS cases in the AAT.
The agency’s handling of Pelovski has been such a burden for Krzeva that she’s tempted to abandon the NDIS altogether: “We’re not even getting any services out of [the funding]. The AAT case means I can’t even work. There is no one to help the vulnerable, there’s no advocacy and there’s no legislative support.”
The NDIA told Crikey it could nott comment on individual cases before the AAT.
“The NDIA continues to support participants to access the disability-related supports they need while plans are undergoing review and until the matter is resolved,” it said.
“We recognise there have been challenges with dispute resolution processes in the past and more needs to be done.”
