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Dominique McGovern discussing option if your NDIS is rejected

Dominique McGovern providing Q & A on the 2GB Erin Molan & Natalie Peters on the Afternoon Show discussing NDIS 2 July 2019

Tuesday, 2 July 2019

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EM & NP – Erin Molan & Natalie Peters / DM – Dominique McGovern/C1,2,3, etc – Callers

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CS         Now there is no doubt the NDIS has been plagued by problems but the idea of it is really important for the nation. There is some good news for those participating as well. A couple of weeks ago the Administrative Appeals Tribunal ruled in favour of a man suffering from a life threatening swallowing condition after the National Disability Insurance Agency denied him funding, now the agency argued that support for his condition which is caused by cerebral palsy was the responsibility of the states not the federal agency so in today’s legal matters segment we are going to look at what to do if participants of the NDIS have had their funding denied like this man initially did.  How can you appeal the decision? That’s a good question to ask and as always we’ve got a $100 Westfield voucher to give away to the caller who asks the best question in our legal matters segment. Now Turner Freeman Lawyers provide a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, family and employment law, wills and estate and property law so they are the ones to go to.  Dominique McGovern is a solicitor in Turner Freeman’s Wollongong office working across personal injury and public liability law with a particular interest in the NDIS. Dominique joins us now. Thank you for coming into the studio.

DM        Thank you for having me.

EM        Based on the case we mentioned earlier it does seem there is a bit of tension between the states and the federal agency as to who is responsible for what.  Are many people getting caught up in that tension?

DM        Yes I would say.  There’s an interface with regards to where particular piles of money should sit, this particular individual Mr Berchell you just touched on that before, he has cerebral palsy and it was found at the AAT that they had to fund the therapies that his dietician recommended because he had a swallowing disorder, so it is important that people are aware that they can appeal decisions made by the National Disability Insurance Agency and that there are lawyers out there who can support them.

EM        131873 if you would like to ask some questions of Dominique as well. 

NP         You talk about the fact that it’s important to raise awareness that people can appeal these decisions, do you think for a lot of Australian’s who are applying know that what they think is final and that is their last option?

DM        Yes that’s right.  Some people are unaware of their rights or they just feel like they don’t have the support to take it further so there are plenty of disability advocates out there and also lawyers such as myself and Legal Aid lawyers as well. I’m also on the Legal Aid panel, I work for Turner Freeman as a private practitioner and yeah our job is to assist those people and help them appeal decisions made. 

NP         Quite often people have a particular condition like in this case cerebral palsy but it leads to all sorts of other conditions. Does the NDIA take that into consideration, are they looking at many things or are they still wanting a particular one disease as the main thing that they respond to? 

DM        Unfortunately some, the agency is aware of some disabilities more than others.  If a disability affects somebody’s functional capacity or their activities of daily living, so basically how they partake in daily like, then the agency should really look into funding support for that particular person. Um you know cerebral palsy is quite well known but the condition that this gentleman suffered from which is dysplasia, it’s basically, they tried to argue that was a health condition but that health condition was actually caused by his disability of cerebral palsy so in turn it was found that the agency should fund it. 

EM        Nat mentioned the tension between the states and the agency, the NDIA, how do we eliminate that? You know it seems to be a lot of passing the buck, not our problem, some other areas problem, how do we make them embrace it more and take more responsibility? 

DM        Well the media is a fabulous example.  We need to make people aware of their rights and also that they can actually take the matter further if the agency deny a request for supports or deny their request to access the scheme and taking it through the legal process will in turn provide Australia with precedents that we can then use. 

NP         Roughly speaking, how often does the NDIA reject or deny funding? 

DM        Well I don’t have the statistics in front of me but I can tell you that I have assisted a lot of people with denied supports and you know it is very very difficult going up against a national government body who have the fabulous legal department, they also hire external legal companies as well to assist them and the person with the disability usually needs a lot of reports and evidence and that is a very complex process. 

NP         You talk about how complex it is and I can only imagine particularly if you are the carer of someone with a severe disability that life is probably hard enough to then have to fight this and go through the process.  Do you think some people actually just think it’s just too hard basket? 

DM        100% most definitely. I have had clients who actually don’t have time to sit down and go through the paperwork or even to call a lawyer or a disability advocate for assistance. I believe that the agency should really give those people more time and that you know we need to ensure that these particular people, these families, these people with disabilities are supported and they do actually get the support they need. Basically the agency try and maintain informal supports so if somebody’s being cared for, the whole point of the scheme is to maintain those supports, now if their parent doesn’t have time to do their own review for their child with a disability then something is clearly wrong there. 

EM        For those who haven’t yet applied or are in the process of applying for funding under the NDIS, do you have any tips for them to make it more likely they will get through? 

DM        Most definitely. So you need to ask the agency, so there is a toll free number you call, call that or email them, you need to get an application, now that application needs to be completed by their general practitioner or a doctor. Now it’s really really important that they attach all the relevant evidence about their disability and their needs because that is what is going to be looked at in the end. 

EM        So keep paperwork on everything? 

DM        Most importantly. 

NP         Can you give us any other examples where you have had decisions appealed so that people at home listening might think that’s similar to something that happened to me. 

DM        Sure.  I have had clients who have autism that require a particular type of therapy called applied behaviour analysis therapy and I’ve appealed a decision made by the agency with regards to that, I’ve had a few of those, other supports such as wheelchairs such as that, access requests that have been denied, lots of children with disabilities that that need a number of supports because they have multiple disabilities so speech therapy, dietetics, occupational therapy, it really all comes down to the individual and what they need and what sort of disability they have. 

EM        For most people in the position that would want to appeal a decision from the NDIS, I’m assuming that they are probably not riddled with money, how does it work, you mention you are part of Legal Aid as well so people can come as a private client or if they can’t afford to hire a lawyer they can still access that help? 

DM        Yes that’s exactly right so I am on the Legal Aid panel, I work for Turner Freeman but I’m on the panel of Legal Aid lawyers so I can assist the client to obtain a legal aid grant in order for me to assist them. I also have private paying clients, for example I am doing an internal review at the moment and the client urgently requested this to take place so they are paying me private but it is up to the individual and thankfully Legal Aid is there for people that can’t afford it.  

EM        I’ve got a friend who has actually just successfully claimed through NDIS for one of her children who has autism and they managed to get about $20,000 for the financial year to support education, the extra classes, the physical therapy, the speech therapy, is that about right? It was about 20 grand, is there a big range, do they look at that specifically and how are these payments capped? 

DM        Um well to be honest, it depends on the individual with the disability. The argument with children with autism at the moment is that they should be getting about roughly 20 hours per week of applied behavioural analysis therapy that’s classified as AVA, now around 20 hours and basically they should also be getting if they need it things such as speech therapy, occupational therapy if they have some physical things that they need assistance with so yeah everybody’s different, a lot of matters settle out of court so I can’t really talk about that particularly when it comes to AVA therapy but look I suppose parents really need to write down on a piece of paper the week and how much support they need in a week and they need to look at that in a year perspective. Some people I suppose aren’t aware that they can just calculate it and say to the agency, we really need this much. 

EM        So go to them with a number rather than just let that number float around? 

DM        Well the agency tend to talk in hours of support so not really a monetary figure, they look at the price guide which is the document that the NDIA refer to but it is about saying, ok my child needs one hour of speech therapy a week, my child needs you know 20 hours of AVA therapy because they have severe autism, so it just depends but really you need reports from the therapists or the paediatrician or the doctor recommending these therapies so somebody can’t just say I need this much they need to have evidence to support that. 

EM        And of course we all want that because the scheme needs to keep working.  We are chatting to Dominique McGovern, a solicitor with Turner Freeman in their Wollongong office 131873 if you would like to call in. Judy has a question for you. Hi there Judy, you are in Brisbane, what is your question for Dominique?

C1          My question is regarding the NDIS, my husband is DSP and I am his carer and have been that way for the last 20 years. In saying that we have had to jump through hoops to actually justify our what I’m saying is, we have to do all this for Centrelink to keep them happy so why is the NDIS not put through to Centrelink and they are acting like a separate entity which they are not supposed to be doing, they are supposed to be helping people with disabilities yet they are making them jump through this whole new set of hoops. 

DM        So Judy what was the particular NDIS issue that you had? 

C1          Me personally, I don’t but what is getting me upset is all these other people that have more serious issues, in order to be classed with Centrelink or just to get the extra money because your child has a problem or the adult has a problem, it’s been justified already, why do we need the.

DM        A separate government body? Sure um they have different responsibilities so Centrelink would look at, say for example an adult with a disability something like a disability support pension whereas the National Disability Insurance Agency looks at funding supports for people with disabilities.  

NP         I can understand the point Judy is making though, if you have to go through so many bits of documentation to prove certain things that might be exactly the same for Centrelink and for the NDIS, why can’t there be some kind of sharing of information potentially that might save some people hours and hours of work. They are different organisations obviously.

EM        We are 11 minutes away from the news so we will take a quick break and we will be back with more. 

EM        Natalie Peters and Erin Molan filling in for Chris Smith.  We are joined in the studio by Dominique McGovern a solicitor with Turner Freeman and we are talking about the NDIS.  Steven in Narrabeen, you have a question for Dominique? 

C2          Yes Dominique, recently I’ve just had my plan approved for my son, I have a son with special needs which is sensory disorder, oppositional defiance disorder and on the low end spectrum of autism and his fund has been reduced by 25% in the last 12 months and what I am going to find out, it’s been a struggle to meet his needs for OT speech and also psychology. 

DM        What I would recommend you do, so how old is the plan, how many months old is the plan? 

C2          The plan has just been reviewed in May and it starts again like last week.   

DM        Ok fabulous so you can lodge an internal review application, you can get those documents from the agency, you can call the toll free line.  Basically you have three months from the date of the NDIS plan to lodge your internal review application, you need to attach all of the therapist’s reports that support the additional funding. If the agency after getting your agency reviews the plan and they don’t amend the plan as per your request, once you get their reviewable decision then you can put in an application within 28 days to the Administrative Appeals Tribunal, that’s called an AAT application and you know I can assist that with you, you can obviously request a solicitor to help. I personally do internal and external review applications but that’s the strategy you would go by.  

EM        Thank you so much.  So Steven stay on the line, you are going to be our winner thanks to Turner Freeman Lawyers for their legal matters segment. A $100 Westfield voucher to give away to the caller with the most relevant question of the day so Steven stay on the line there and I hope that advice was helpful.  Dominique thank you so much for coming in. 

DM        Thanks for having me. 

EM        A lot of emails coming in as well, it seems to be an area that people when they know they can access it and really need help, making sure that they get the right help. 

DM        That’s right.  Thank you.  

EM        No problem.  Dominique McGovern there, solicitor with Turner Freeman Wollongong office with a particular interest in the NDIS.  I think it’s a fantastic scheme, people need to be able to access it properly and all of us want to know that it is being used properly and not abused. 

NP         That’s exactly right and whilst it’s probably frustrating for people who use it when things get rejected, I also understand that they have a responsibility to tax payers that everything is genuine and everything is legit so it’s getting that balance right is the tough part.