The National Disability Insurance Agency (NDIA) has apologised to participants who believe they were not treated fairly when challenging its decisions in the Administrative Appeals Tribunal (AAT).
Crikey understands the agency is assessing 70 model litigant complaints, where participants and advocates claim the agency and its lawyers haven’t acted honestly and fairly. The agency spends tens of millions of dollars on external legal fees every year.
“The NDIA apologises to participants engaged in dispute resolution processes where their experience has been deficient or inadequate.”
The apology comes just days after Attorney-General Mark Dreyfus announced the AAT would be abolished from mid next year.
The tribunal has long been plagued with issues, particularly among National Disability Insurance Scheme (NDIS) participants.
Two lawyers Crikey has spoken to allege both the agency and tribunal were aware of the agency’s mismanagement of cases, claiming the NDIA deliberately caused delays to dissuade applicants from appearing at the tribunal. In one case, they allege AAT staff laughed at the delays on a call while they thought an NDIS participant was on hold.
In an apology to one man, the agency acknowledged it had failed in its duties, citing a “number of root causes” that resulted in the participant having to take his request for funding to the AAT.
‘Root causes’ acknowledged
Victorian lawyer Jenny Draddy represented an NDIS participant regarding funding for his specialist disability accommodation. Draddy has asked for details to be withheld so as to not identify her client.
She believed what they were requesting from the NDIA was, in all but one aspect regarding a second bedroom, clear cut and didn’t need to go to the AAT. Draddy was outraged and dismayed at the conduct of NDIA and their lawyers. She alleged the NDIA representatives gave false information to the tribunal, that the NDIA failed to provide relevant documents during the proceeding, refused to follow directions from the tribunal member and dragged out the case.
“Everything that was done appeared calculated to maximize the legal work, consume the pro bono legal resources and break my client,” she said.
Draddy said the case affected her client’s psychological well-being. She submitted complaints to then attorney-general Michaelia Cash and then NDIS CEO Martin Hoffman in mid 2021, before lodging a complaint with the Office of Legal Services Coordination in December last year.
In September she received a response from NDIA deputy CEO of markets, government and engagement Lisa Studdert apologising for the agency’s conduct.
“I am writing to apologise to you and [your client] for the conduct of the [NDIA] throughout [your client’s] application for specialist disability accommodation, including through the Administrative Appeals Tribunal (AAT) process,” the letter read.
“It is very clear that failings occurred in the agency’s handling of [the NDIS participant’s] application, particularly in the systems and processes intended to prevent these failings and support [the participant] as he pursued his legal right to internal and external review of our decision. We failed and we shouldn’t have.”
Studdert noted the NDIA had commissioned an external review, finding a “number of root causes” including inadequate explanation and record-keeping regarding NDIA decisions, and poor engagement and responsiveness from the agency.
“Most concerningly, there was a failure to effectively search, identify and consider relevant information supportive of [the participant’s] application,” she wrote. “If that material had been identified and considered earlier, there may have been no need for further escalation of [his] case.”
The report has not been released publicly due to privacy concerns, but has also not been released to Draddy and her client. The agency declined to say whether disciplinary action has been taken against those involved.
“There’s been no accountability,” Draddy said.
‘Laughing’ at delays
Although there had been a small improvement in the agency’s conduct since the change of government, Draddy said there were still issues in the tribunal.
Earlier this year, one of her clients alleged they overheard an AAT conference registrar member laugh with an Australian government solicitor, when they thought the client had been put on hold, about the fact they weren’t surprised there were so many delays with the case.
“The NDIA is still failing to produce relevant documents, is undertaking fishing exercises by issuing for summonses for medical records, and pressing for independent medical examinations without sufficiently addressing the expert evidence provided by the NDIS participants,” Draddy said.
“The cutting and refusal of supports without adequate reasons and the NDIA conduct of AAT review applications appeared to be deliberate and designed to frustrate the process and make participants give up their lawful entitlements. The delay and refusal to provide documents appear to be covering up inadequate record-keeping and unjustifiable decisions.
“The NDIS has been able to rely on the AAT being a toothless tiger to drag out cases. The NDIS knows it will suffer no real consequences for breaching its model litigant obligations and AAT directions.”
A spokesperson for the AAT told Crikey the tribunal “considers compliance with its directions to be essential to the delivery of timely reviews and has an established process for addressing non-compliance with directions”, which consists of a separate directions hearing.
Ongoing problems
Crikey has previously covered people with disabilities’ fights in the AAT.
Richard Hamon was seeking funding to travel to Melbourne for assessment through Vision Australia to be fully funded by the NDIA so that he could buy assistive technology with his NDIS funding. Zoran Pelovski wanted his long-time carer and family friend to be reinstated and had been unable to use his funding in the interim. Disability discrimination lawyer Larry Laikind had been refused funding to modify his backyard to make it accessible for his vision impairment.
In each instance, the NDIA was slow to file key documents, resulting in huge delays in proceedings, with advocates and representatives arguing the agency had abandoned model litigation principles.
A pro bono lawyer representing both Pelovski and Laikind told Crikey trust had been eroded.
“There’s no trust at all with my clients about the conduct of the agency and there’s no accountability,” she said. “It’s widespread across the tribunal.”
Michael Manetta has been a member of the AAT since 2016. He alleged that earlier this year, he was removed from hearing social security cases because he made too many decisions against the government.
“I feared [the AAT’s abolishment] was inevitable,” Manetta told Crikey, adding he was glad the current government was prepared “to take such unprecedented measures to restore the integrity of our administrative justice system”.
The attorney-general’s office declined to say whether the NDIA’s actions played a role in his decision to abolish the AAT, instead pointing to the stacking of the tribunal, high costs and long backlogs, and a lack of independence.
Last week Dreyfus said the former government had “fatally compromised the AAT, undermined its independence and eroded the quality and efficiency of its decision-making”.
Under the Coalition, nearly one-third of all tribunal appointments were given to people with Liberal Party connections. In Senate estimates in November, it was revealed multiple tribunal members faced complaints of bullying or harassment. Earlier this month, AAT president Fiona Meagher stepped down.
The government plans to have a new body to replace the AAT up and running by October next year.
