Why an AAT ruling could shake-up NDIS funding

National Disability Insurance Scheme participants could soon get funding for a broader range of health-related supports following a major Administrative Appeals Tribunal decision.

The AAT has ruled the National Disability Insurance Agency was wrong to deny vital swallowing support funding to a 34-year-old man who has dysphagia as a result of cerebral palsy.

The NDIA has consistently argued it will not fund supports that would be more appropriately funded by another government service such as the health department – even if no other service actually offers the support.

But AAT deputy president Brian Rayment indicated any support the NDIA refuses to fund needs to be made available by another government service provider.

Dr Meg Clement-Couzner, a senior policy officer at People with Disability Australia, told Pro Bono News she was pleasantly surprised by the decision, which showed the NDIA needed to change its approach to funding vital supports.

“It’s completely unacceptable that people with disability are left in the lurch while there is a game of chicken between the NDIS and other government authorities,” Clement-Couzner said.

“This judgement recognises that supports actually need to be offered elsewhere for the NDIA to claim that people should seek them elsewhere than the NDIS.

“We’re really happy to see this because it cuts through the argy-bargy between the NDIS and the health system and actually prioritises the needs of people with disability as the NDIS was always meant to do.”

Clement-Couzner added this ruling could set a precedent for people seeking other health-related supports through their NDIS plans.

“We’ve seen cases where people with tracheostomy tubes have really struggled to get clarity regarding who is funding this support,” she said.

“But with this ruling I think there are a number of health-related supports that could be impacted … and breathing and swallowing supports are certainly ones that we hope to see some change around.”

The 34-year-old at the centre of the ruling was appealing the NDIS’s decision not to fund the fluid thickeners and nutritional support products his dietician prescribed to help him swallow safely.

The NDIA’s stance that this should be funded by the health system aligns with the Productivity Commission’s view that the NDIS should not respond to shortfalls in mainstream services by providing its own supports.

The commission has warned this could impact the financial sustainability of the scheme and make other government providers less inclined to include people with disability in mainstream services.

Clement-Couzner said she wanted mainstream services to be inclusive for people with disability, but added the NDIS had the capacity to provide better services for participants.  

She said the NDIA and the government should be more concerned about the risk of harm to people with disability rather than the funding implications for this case and other supports.

“The government actually spent around $4 billion less than it predicted on the NDIS in the last financial year,” she said.

“That is funding set aside for people with disability and should be spent addressing the lack of clarity around who will fund our supports.”

This decision follows a successful campaign from the Council for Intellectual Disability (CID) earlier this year to get interim NDIS funding for some swallowing therapies.

CID CEO Justine O’Neill told Pro Bono News the AAT ruling affirmed that a person’s ongoing relevant health needs must be met by the NDIS if they were not met by existing health services.  

“If this approach is applied by the NDIS to other funding decisions we can expect people with intellectual disability to benefit from greater access to supports and opportunities,” O’Neill said.

A NDIA spokesperson told Pro Bono News the agency was “considering the recent AAT decision in relation to the applicant and the National Disability Insurance Agency”.