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Government called in private law firms to fight a third of NDIS cases, figures show

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People with disabilities increasingly facing off against lawyers from top private firms

Tue 10 Nov 2020

Last modified on Tue 10 Nov 2020

The agency running the national disability insurance scheme has called in private law firms in a third of all cases it has been forced to defend at the administrative appeals tribunal (AAT), amid a large increase in its overall legal bill.

Under the administrative review system that allows people to challenge government decisions, NDIS participants who have been denied supports and applicants who have been denied access to the scheme can appeal to the tribunal.

While few people with disabilities are legally represented in these cases, new figures provided to the Senate show increasingly they face the prospect of negotiating with or facing off against lawyers from top private firms.

The figures show the agency had engaged a private firm in 1,294 cases since the scheme was created in 2013.

That is about 33% of the 3,891 cases that have been appealed to the tribunal by NDIS participants and applicants.

The figures show Minter Ellison was engaged in 100 cases, while Wisewould Mahony (127 cases), Sparke Helmore (104 cases), Clayton Utz (64 cases) and Ashhurst (59 cases) were also hired often.

Some 539 of the 1,294 cases farmed out to private firms were from the past financial year.

The NDIA declined to outline the cost of engaging these private firms for AAT cases, but it told Senate estimates last month it spent $13.4m on total AAT legal costs in the 2019-20 financial year, up from $9.4m in the previous 12 months.

Its total legal bill hit $28.9m in 2019-20, an increase from $18.4m in 2018-19. Part of the increase would reflect the continued rollout of the scheme, which only began operating in all states and territories in July.

But the opposition’s NDIS spokesman, Bill Shorten, said the figures were “disturbing”.

He said the vulnerable were being “fought at every stage in an unfair fight where the government spends a fortune on high-powered big-city law firms”.

“Imagine if these funds were diverted away from the lawyers’ picnic and given to people whose lives it could change,” Shorten said.

Though the scheme has been growing, the agency has been facing an increasing number of NDIS appeals in recent years.

There were 1,744 applications for an AAT review of an NDIS decision in 2019-20, up from 1,220 in the previous 12 months, and 744 in 2017-18.

But an NDIS spokeswoman said the proportion of scheme planning decisions that were being appealed to the AAT was falling.

“In 2019-20, the number of AAT cases related to planning decisions was just 0.22% of all planning decisions, down from 0.25% in 2018-19,” she said.

“The NDIA is legally represented in all cases. Around two-thirds of cases are managed by the NDIA internal legal team with an early resolution case manager. One third of cases are managed by an NDIA case manager with an external lawyer.”

The spokeswoman said the agency at times needed “specific specialist expertise from private legal services may at times be required”.

“In general, advisers are selected based on: the requirements of the matter, their match to individual or organisational expertise, skill set and appropriate value for money,” she said.

Amid the increasing legal spending and the engagement of top private firms, the NDIA has faced criticism for negotiating confidential settlements with participants prior to a hearing.

Some have argued the settlements allow the NDIA to avoid scrutiny in cases where the tribunal may be highly critical of the agency’s initial decision to refuse supports or access to the scheme.

Cases that have made it to the AAT include a June 2019 ruling revealed by Guardian Australia that found the agency had been wrong to deny swallowing supports to people living with dysphagia.

The NDIA’s spokeswoman confirmed about 65% of matters were resolved through “early resolution”, while 33% of applications made to the AAT are withdrawn by the applicant.

She said only 2% proceeded to a contested hearing and published decision.

“The NDIS minister also announced significant reforms earlier this year, which will lead to better, more consistent decisions for participants.”

These changes, which include independent assessments of scheme applicants, have drawn a mixed response from disability advocates.


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