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The agency that manages the national disability insurance scheme has called in private law firms in a third of all cases it has been forced to defend before the Administrative Court of Appeal (AAT), in a context of significant 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 claimants who have been denied access to the plan can appeal to court.
While few people with disabilities are legally represented in these cases, new figures provided to the Senate increasingly show that they face the prospect of negotiating with or facing lawyers from large private firms.
Figures show that the agency had hired a private company in 1,294 cases since the inception of the program in 2013.
This represents approximately 33% of the 3,891 cases that have been appealed to court by NDIS participants and claimants.
Figures show Minter Ellison was hired 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 entrusted to private companies concerned the past financial year.
The NDIA declined to describe the cost of engaging these private companies for AAT cases, but told the Senate last month that it spent $ 13.4 million on the total legal fees of the AAT in fiscal year 2019-2020, up from $ 9.4 million in the previous 12 months.
Its total legal bill reached $ 28.9 million in 2019-2020, up from $ 18.4 million in 2018-19. Part of the increase would reflect the continued roll-out of the program, which only began operating in all states and territories in July.
But NDIS opposition spokesman Bill Shorten said the numbers were “worrying.”
He said vulnerable people were “fought at every step of an unfair fight where the government spends a fortune on powerful law firms in big cities.”
“Imagine if these funds were diverted from the lawyer picnic and given to people whose lives could change,” Shorten said.
Although the program has grown, the agency has faced an increasing number of NDIS appeals in recent years.
There were 1,744 requests for a review by the AAT of an NDIS decision in 2019-2020, compared to 1,220 in the previous 12 months and 744 in 2017-2018.
The NDIA noted that program participants can seek legal representation to help with AAT claims through a program put in place by the Department of Social Services.
Most applicants are represented by disability advocates or a legal representative, according to the agency.
A spokesperson for NDIS said the proportion of program planning decisions appealed to the AAT was declining.
“In 2019-2020, the number of AAT cases related to planning decisions was only 0.22% of all planning decisions, compared to 0.25% in 2018-2019,” he said. she declared.
“NDIA is legally represented in all cases. About two-thirds of cases are handled by NDIA’s 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 spokesperson said the agency sometimes needed “specific specialist expertise from private legal services that may sometimes be required”.
“In general, advisers are selected on the basis of: the requirements of the case, their suitability with individual or organizational expertise, the skill set and good value for money,” she said.
Amid rising legal spending and hiring from large private companies, NDIA has come under fire for negotiating confidential deals with participants ahead of a hearing.
Some have argued that the regulations allow NDIA to avoid scrutiny in cases where the court may be very critical of the agency’s initial decision to deny supports or access to the program.
The NDIA noted that pre-hearing processes, including dispute resolution, have been established and are overseen by the AAT.
Among the cases that have come to the AAT’s attention is a June 2019 ruling revealed by Guardian Australia that the agency was wrong to deny swallowing aids to people with dysphagia.
The NDIA spokesperson confirmed that about 65% of cases were resolved through “early resolution”, while 33% of claims filed with the AAT were withdrawn by the claimant.
She said only 2% had conducted a contested hearing and published the decision.
“The NDIS minister also announced important reforms earlier this year, which will lead to better and more consistent decisions for participants.”
These changes, which include independent assessments of program applicants, have received mixed reactions from disability advocates.
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