Ensuring a fair hearing- matters involving persons
with a mental illness, cognitive impairment or
intellectual disability
National Disability Insurance Scheme Hearings
COAT Victoria Conference 2016
Jill Toohey, Senior Member, Administrative Appeals Tribunal
www.aat.gov.au
www.aat.gov.au
//
1
Introduction
• The NDIS commenced July 2013 and is being rolled out
progressively
• Currently in the Barwon region in Victoria; other states and
territories according to age and location
• Estimated that, when fully rolled out in 2019, 410,000
people with disabilities will be eligible for funded supports
• National Disability Insurance Scheme Act 2013
www.aat.gov.au
// 2
AAT Reviews
The AAT can review 26 kinds of decisions made by the
National Disability Insurance Agency. Applications mainly
concern:
• access to the scheme: whether a person meets the disability
requirements or early intervention requirements in the
National Disability Insurance Scheme Act 2013; and
• whether funded supports are reasonable and necessary
www.aat.gov.au
// 3
Disability Requirements
• Section 24(1)
• 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: s 24(1)(a)
• the impairment or impairments result in “substantially
reduced functional capacity to undertake, or psychosocial
functioning in undertaking” at least one of the following:
communication; social interaction; learning; mobility; selfcare; self-management: s 24(1)(c)
www.aat.gov.au
// 4
Objects and principles
• Give effect to Australia’s obligations under the Convention on
the Rights of Persons with Disabilities: s 3(1)(a)
• Enable people with disability to exercise choice and control
in the pursuit of their goals and the planning and delivery of
their supports: s 3(1)(e)
• People with disability should be involved in decision making
processes that affect them, and where possible, make
decisions for themselves: s 5(a)
• The judgments and decisions they would have made for
themselves should be taken into account: s 5(c)
• The Tribunal’s Practice Direction for the Review of NDIS
Decisions is based on these objects and principles
www.aat.gov.au
// 5
Some issues
• What should/can a tribunal do if it has reason to think that a
person is not capable by reason of cognitive impairment,
mental illness or intellectual disability of communicating his
or her instructions or wishes?
• Are informally nominated/appointed representatives
adequate?
• Are formally appointed representatives necessary?
www.aat.gov.au
// 6