Anassis and National Disability Insurance Agency
[2022] AATA 622
•4 April 2022
Anassis and National Disability Insurance Agency [2022] AATA 622 (4 April 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2020/5733
Re:Emanuel Anassis
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member K. Parker
Date:4 April 2022
Place:Melbourne
The Tribunal sets aside the Decision Under Review and remits this matter to the Respondent for reconsideration on or before 17 April 2022 with a direction that the Respondent approves a new statement of participant supports (SOPS) for the Applicant, containing the following:
(a)a review date falling on the 12-month anniversary of the reconsideration decision made under this remittal;
(b)all of the Applicant’s existing supports replicated on a pro rata basis for a period of 12 months;
(c)the funding for supports under the SOPS be “plan-managed” by a plan manager appointed by the Applicant’s plan nominee;
(d)a provision prohibiting the expenditure of any of the funding in the SOPS being used to pay Ms Georgia Anassis, Mr Nick Anassis, or any other immediate or extended family member of the Applicant (or any service provider or entity related to those family members), to provide supports to Mr Anassis as support workers or in any other capacity; and
(e)a provision specifying that the service providers currently engaged to provide support workers to care for Mr Anassis and/or any other suitable agencies which may be identified at a later point in time, may be engaged by Mr Anassis for such purpose, and will be funded under the Applicant’s new SOPS.
..................[sgd]......................................................
Senior Member K. Parker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – adult participant – participant’s mother appointed as plan nominee – review of decision to approve statement of participants supports (SOPS) – NDIA initially considered that plan should be “NDIA-managed” – whether Tribunal is compelled to grant plan nominee’s request under s 43 of the National Disability Insurance Scheme Act (NDIS Act) for funding to be “plan-managed”, instead of “NDIA-managed” – whether provision in SOPS prohibiting family members from being paid as support workers should be removed – whether provision specifying that core supports be provided by two specified service providers should be removed – role of plan nominee – conflict of interest – plan nominee’s instrument of appointment does not contain any provision preventing her from managing the participant’s plan or from appointing a plan manager to do so – s 44 of the NDIS Act not applicable because request made for plan be “plan-managed”, and not “self-managed” – Decision Under Review set aside and matter remitted for reconsideration with direction that the NDIA approves a new SOPS which is “plan-managed”, contains a prohibition against family members being paid as support workers, and specifies that currently engaged service providers may be used to provide support worker services to the participant, as well as other service providers who may be identified at a later point in time – non-binding observations made about whether the participant’s mother has fulfilled her duties to the participant as plan nominee and should remain as such, or whether the scope of her authority should be limited
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Plan Management) Rules 2013
National Disability Insurance Scheme (Nominee) Rules 2013
National Disability Insurance Scheme (Supports for Participants) Rules 2013Secondary Materials
Operational Guidelines | NDIS
REASONS FOR DECISION
Senior Member K. Parker
4 April 2022
INTRODUCTION
The Applicant, Mr Emanuel Anassis, is an adult participant in the National Disability Insurance Scheme (NDIS). Mr Anassis’s mother, Ms Georgia Anassis, is Mr Anassis’s appointed plan nominee. Ms Anassis caused this application to be lodged, seeking review of the decision to approve a statement of participant supports (SOPS) for Mr Anassis under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
Initially, Ms Anassis was not satisfied with the level and type of supports that had been approved for her son. Upon remittal of this matter under s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) on 25 August 2021, during the course of this proceeding, the NDIA approved a new 12-month NDIS plan for Mr Anassis, which delivered a very significant increase in the level of funding for supports for Mr Anassis (Decision Under Review). Ms Anassis is now satisfied with the type and level of supports included in the new SOPS for Mr Anassis.
However, there are certain other aspects of Mr Anassis’s new SOPS approved on 25 August 2021 that Ms Anassis sought to be reviewed so this proceeding continued before the Tribunal. At first, Ms Anassis wanted to have a restriction that had been imposed by the NDIA prohibiting Ms Anassis and her other son, Mr Nick Anassis (Nick), being paid as support workers to provide care to Mr Anassis removed from the new SOPS. Ms Anassis later, after the hearing was concluded, withdrew that request. Ms Anassis also sought to have removed from the new SOPS a provision that required two specified service providers to be used to provide supports to Mr Anassis. The NDIA contends it is not necessary to do so because Mr Anassis is free to use the funding in his new SOPS for any other service providers as identified in due course. Finally, Ms Anassis requests that Mr Anassis’s new SOPS and NDIS plan be “plan-managed” by a plan manager appointed by her, rather than it being “NDIA-managed”.
BACKGROUND
Mr Anassis is in his mid-30’s. It was not in dispute that he suffers from a range of physical and psychiatric conditions which severely impact his physical and mental health, including:
(a)intellectual disability;
(b)schizoaffective disorder;
(c)autism spectrum disorder (ASD);
(d)Di George Syndrome, including cleft palate, delayed speech, behavioural problems, and flaccid muscles;
(e)morbid obesity (Mr Anassis is 6’ 5’’ and weighs approximately 145kg); and
(f)Type II diabetes.
Mr Anassis’s conditions have resulted in very significant functional impairments. This is common ground between the parties. Mr Anassis’s medical conditions result in him experiencing occasional but significant dysregulation, which can result in property damage and harm to himself. On occasion, Mr Anassis will dysregulate and become verbally abusive to the people around him.
Mr Anassis is capable of verbal communication, although reportedly at a rudimentary level. From reports by Ms Anassis and his support workers, Mr Anassis is capable of expressing his needs and wants. He spends most of his time participating in online gaming. At the hearing, Ms Anassis described Mr Anassis’s participation in gaming as “an obsession”.[1]
[1] Refer Transcript, P-78.
Mr Anassis visits his mother once a week at her home. Ms Anassis recently moved to a new house and presently lives with her elderly mother. Ms Anassis informed the Tribunal that she provides active personal care to her mother for about 28 hours per week, and that she works as a support worker to three NDIS clients for about 10 hours per week.[2] Ms Anassis said she does not provide childcare to her grandchildren aged 4 and 14. She said she sees them about once a fortnight.
[2] Ms Georgia Anassis’s witness statement dated 7 January 2021. While nothing of substance turns on it, the Tribunal notes that during the hearing, Ms Anassis told the Tribunal she did so for about 12 hours per week –refer Transcript P-90.
Mr Anassis has trouble when travelling long distances in the car; and at times, it has caused him to dysregulate. In May 2021 Mr Anassis jumped out of a car travelling at about 60kms per hour. He injured his arm. New travel protocols have since been introduced, including appropriate physical restraints, which seem to have addressed this risk of harm.
In 2021, and more recently with the added assistance of a newly appointed Level 3 specialist support coordinator, Ms Ciara O’Kane, and a further Level 2 support coordinator, Mr Anassis has established a new, highly skilled, and dedicated care team around him. Ms O’Kane who gave evidence at the hearing on 15 November 2021, reports that he had made “significant progress in recent weeks and months” with new supports around him, and he had expressed an interest in wanting to get out more.[3]
[3] Refer Transcript Day 4, P-126 and P-128.
Mr Anassis currently lives in specialist disability accommodation (SDA), situated in Aspendale (near Frankston), Victoria. This home is operated by an organisation, genU, which engages staff to care for the residents at the SDA. Mr Anassis occupies a standalone unit at the SDA, which is connected to a group home occupied by other persons with disabilities. Mr Anassis is not permitted to enter the group home due to previous incidents. Other residents in the group home are unable to access Mr Anassis’s unit. Mr Anassis has lived at these premises for about three and a half years.
Procedural history of this application before the Tribunal
This matter has had a complex and constantly evolving procedural history before the Tribunal, which has been challenging.
At Ms Anassis’s request, this application was first lodged by the Applicant’s legal representatives, AED Legal, on 21 September 2020 (AAT Application). The AAT Application sought review of a decision made by a delegate of the CEO of the Respondent on 28 August 2020 under s 100 of the NDIS Act, relating to a decision to approve a SOPS for Mr Anassis.
In an attachment to the AAT Application, AED Legal highlighted to the Tribunal the purported lack of flexibility in the SOPS and the decision by the NDIA to immediately cease the payments to Mr Anassis’s mother and brother as paid support workers. AED Legal asserted that the denial by the NDIA of Mr Anassis’s requested supports had negatively impacted on his wellbeing, was preventing him from achieving his NDIS goals, and had created a “serious risk to his immediate health and safety”.
After this application was lodged, Ms Anassis sought urgent interim relief from the Tribunal in the form of increased funding for core supports. This relief resembled the final relief sought in this application. Ms Anassis asserted that her son was in “a state of crisis” and “at serious risk”; and that he needed such relief on an urgent basis due to incidents which had taken place. This occurred at a time when COVID-19 restrictions were in place in Melbourne, where Mr Anassis is based. Naturally, community access visits by Mr Anassis were restricted at this time, as were options for others to visit Mr Anassis in his SDA accommodation. This no doubt resulted in him becoming quite isolated, not unlike many others in Melbourne at this time.
In response, the Tribunal listed this matter for an expedited substantive hearing on 12 January 2021. The hearing was adjourned part-heard and resumed on 28 and 29 April 2021. At this stage, the issues in dispute between the parties included the types and levels of supports to be provided to Mr Anassis. One of the issues in contention at that time was whether Mr Anassis required overnight support; and whether such support should be active or inactive. Pending the resumed hearing in April 2021, and at the suggestion of the Tribunal, the NDIA facilitated a four-week trial whereby Mr Anassis was provided with one-to-one active overnight support at his SDA unit provided by genU house staff. A detailed activity log was maintained during the trial and produced to the Tribunal. The overnight activity log revealed that for a lot of the time during the trial, Mr Anassis either did not wish to be disturbed by the genU house staff or that he was sleeping. Mr Anassis is generally awake during the night and participates in online gaming. He is very selective about who he allows to enter his unit. This remains the case to the present time, according to the evidence given by Ms Anassis.
At the commencement of the resumed substantive hearing in April 2021, the Tribunal was informed that one of Mr Anassis’s expert witnesses, who the Tribunal agreed was an important witness, was no longer available to give evidence on 28 or 29 April 2021. The Tribunal decided to proceed with the hearing in part. The Tribunal heard detailed evidence from Ms Anassis and from Mr Anassis’s treating general practitioner, Dr Donna Henderson. The Tribunal also received detailed status reports from genU (the entity managing Mr Anassis’s SDA unit), and two other agencies engaged by Mr Anassis to provide support workers to assist him.
By the end of the third day of the hearing on 29 April 2021, the Tribunal had formed a view that Mr Anassis was not in a situation of crisis or at serious risk of harm to himself or others, as had been claimed by Ms Anassis. From the reports given to the Tribunal leading up to that date, the Tribunal was satisfied that Mr Anassis’s situation had improved since the lifting of COVID-19 restrictions, resulting in increased opportunities for him to access the community and to have external support staff interact with him more frequently. The service provider reports produced to the Tribunal indicated that Mr Anassis had begun to develop positive relationships with his external support staff, and with one staff member from Hearth in particular, with whom he shared common interests in gaming and movies. Ms Anassis confirmed that this was the case.
Dr Henderson informed the Tribunal on 28 April 2021 that Mr Anassis’s presentation seemed to be improving. The Tribunal was informed that the last time a significant incident had taken place involving Mr Anassis was in late February 2021. The Tribunal formed an impression from the evidence given at the hearing on 28 and 29 April 2021 that, relatively speaking, Mr Anassis appeared to be quite stable at that time.
From the beginning, the NDIA had opposed this application being heard on an expedited basis, and reiterated its concerns in the NDIA’s Statement of Facts, Issues and Contentions dated 11 January 2021 (NDIA’s SFIC). The NDIA contends that it has been denied procedural fairness due to the expedition of the hearing and had missed an opportunity to arrange for an independent assessment of Mr Anassis to take place. The NDIA contends that it was also denied the opportunity to summons certain medical records relating to Mr Anassis.
Further, the Tribunal raised concerns with Mr Anassis’s legal representatives at the hearing on 28 April 2021, about the evolving lack of clarity about precisely what supports were being requested by Mr Anassis. At the resumed hearing in April 2021, the Tribunal stipulated the need for Mr Anassis’s legal representatives to clearly articulate the supports that were being requested on his behalf.
At the hearing on 28 April 2021, Ms Anassis informed the Tribunal for the first time, that Mr Anassis was open to speaking to the Tribunal. Before this time, neither Ms Anassis nor AED Legal had arranged for Mr Anassis to be called as a witness at the hearing, or to prepare and submit to the Tribunal a witness statement. Ms Anassis indicated that she did not think Mr Anassis would be distressed if he was telephoned by the Tribunal. This was a critical change in circumstances. At that time, the Tribunal indicated to Ms Anassis that it considered it to be a priority to receive evidence from Mr Anassis in some form, directly or indirectly, that would enable the Tribunal to better understand his expressed wishes and lived experiences.
Based on those matters, at the commencement of the third day of the hearing, on 29 April 2021, the Tribunal remitted this matter to the Respondent (Section 42D Remittal) for reconsideration under s 42D of the AAT Act for a period of 90 days, with directions that:
(a)the requested supports be stated with precision by Mr Anassis’s plan nominee and his legal representatives;
(b)the NDIA reconsider the internal review decision dated 28 August 2020 in light of the evidence given on the second and third days of the hearing;
(c)the NDIA consider the provision of urgent increased funding to Mr Anassis for regular and direct[4] treatment by a neuropsychologist, speech therapist, and an occupational therapist;
(d)the NDIA consider the provision of urgent increased funding to engage an appropriately qualified allied health professional to (among other things) develop a multi-disciplinary therapy plan for Mr Anassis;
(e)the parties were to explore whether additional funding could be provided to allow genU to upgrade the one-to-four inactive overnight support to active overnight support and monitoring of Mr Anassis; and
(f)the NDIA was at liberty to arrange an independent assessment of Mr Anassis by an NDIA-appointed neuropsychologist to ask questions of Mr Anassis in an informal setting, to ascertain his wishes in relation to the supports he might receive under his SOPS and NDIS plan, to ascertain his goals (as distinct from Ms Anassis’s goals), how much involvement he wanted from Ms Anassis and Nick and in relation to which activities, and how things were going in relation to Mr Anassis developing rapport with his new external support workers.
[4] That is, not indirect treatment through Ms Anassis or Nick.
Result of Section 42D Remittal
During the Section 42D Remittal period, the Respondent reconsidered this matter and made a decision to approve a new SOPS for Mr Anassis on 25 August 2021. This resulted in a new 12-month NDIS plan for Mr Anassis, providing him with access to a very substantial level of funding for the provision of supports in the sum of $889,077.62 per annum.
Mr Anassis’s new SOPS included funding for support workers on a one-to-one basis, 24 hours per day, seven days per week, and an additional support worker for six hours per day, allowing for two-to-one support for Mr Anassis during these times to undertake travel and to access the community. Significant funding was included for the provision of:
(a)allied health services to Mr Anassis with the focus on the development of a behavioural support plan (BSP) for him;
(b)a qualified BSP practitioner, to assist Mr Anassis to manage his dysregulated behaviours; and
(c)to provide training to Mr Anassis’s support workers regarding behavioural management.
The new SOPS for Mr Anassis included the provision of services by a Level 3 specialist support coordinator for 210 hours per year, and a Level 2 support coordinator for a further 50 hours per year.
Ms Anassis elected to proceed with this application
The Tribunal listed the matter for a directions hearing on 30 September 2021 to ascertain whether Ms Anassis, on behalf of Mr Anassis, was satisfied with the reconsideration decision of the NDIA resulting from the Section 42D Remittal, or whether she wished to proceed with this application. Ms Anassis informed the Tribunal, in effect, that while she was satisfied with the new funding included in the new SOPS, she was dissatisfied with three aspects of the SOPS: specifically, who was to manage the plan, the prohibition against family members being paid as support workers, and an apparent restriction in the SOPS that only two specified service providers could be used to provide the core supports to Mr Anassis. Ms Anassis elected to proceed with this application.
Accordingly, by operation of s 42D(4) of the AAT Act, the NDIA’s decision to approve the SOPS on 25 August 2021 became the Decision under Review in this proceeding.
ISSUES
At the directions hearing on 30 September 2021, the Tribunal made an order under s 25(4) of the AAT Act to confine the issues in this proceeding to the following three issues:
(a)whether the new SOPS dated 25 August 2021 should be “plan-managed”, instead of “NDIA-managed”;
(b)whether the restriction in the SOPS prohibiting Mr Anassis’s family members from providing services to him be removed, and that family members be permitted to do so; and
(c)whether the restriction in the SOPS allowing only two specified agencies to provide core support services to Ms Anassis be removed, and that any agency be permitted to do so.
The Tribunal referred this matter to Registry to be listed for a resumed substantive hearing on 15 November 2021 in relation to these three issues. Ahead of this hearing, the parties lodged with the Tribunal an agreed hearing tender bundle (HTB) containing the NDIA’s and Mr Anassis’s updated statements of facts, issues, and contentions (USFIC) and further documentary evidence addressing those three issues.
After the hearing, the NDIA lodged closing submissions on 7 January 2022 (NDIA’s Closing Submissions) and Mr Anassis’s representative lodged closing submissions on 25 January 2022 (Mr Anassis’s Closing Submissions). On 1 April 2022, the parties were notified that the Tribunal’s Decision in this matter would be handed down at 5pm on 4 April 2022. At 9.23am on 4 April 2022, AED Legal wrote to the Tribunal to advise that the parties jointly propose that the Tribunal remit this matter under s 42D of the AAT Act having regard to the NDIA’s intention to, in effect, roll over the existing supports in Mr Anassis’s SOPS on a pro rata basis for a period of three months. The Tribunal refused this request for reasons which include that the effect of this Decision by the Tribunal is to remit this matter for reconsideration with the direction as referred to above on pages 1 and 2 of this Decision.
LEGISLATION
The NDIS is governed by the provisions of the NDIS Act and rules made under s 209 of the NDIS Act, including, of relevance, the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports for Participant Rules) and the National Disability Insurance Scheme (Plan Management) Rules 2013 (Plan Management Rules).
Section 31 of the NDIS Act provides that “as far as reasonably practicable” the preparation, review, and replacement of a participant’s NDIS plan and the management of the funding for supports under a participant’s NDIS should:
(a) be individualised; and
(b) be directed by the participant; and
(c)where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(d)where possible, strengthen and build capacity of families and carers to support participants who are children; and
(da)if the participant and the participant’s carers agree—strengthen and build the capacity of families and carers to support the participant in adult life; and
(e)consider the availability to the participant of informal support and other support services generally available to any person in the community; and
(f)support communities to respond to the individual goals and needs of participants; and
(g)be underpinned by the right of the participant to exercise control over his or her own life; and
(h)advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i) maximise the choice and independence of the participant; and
(j)facilitate tailored and flexible responses to the individual goals and needs of the participant; and
(k)provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.
Section 33(2) of the NDIS Act provides that a participant’s plan must include a SOPS which contains the following matters of relevance (emphasis added):
33 Matters that must be included in a participant’s plan
(1)…
(2)A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a)the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c)the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d)the management of the funding for supports under the plan (see also Division 3); and
(e) the management of other aspects of the plan.
(3)The supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise.
(4)The CEO must endeavour to decide whether or not to approve the statement of participant supports as soon as reasonably practicable, including what is reasonably practicable having regard to section 36 (information and reports).
(5)In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a)have regard to the participant’s statement of goals and aspirations; and
(b)have regard to relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f)have regard to the operation and effectiveness of any previous plans of the participant.
(6)To the extent that the funding for supports under a participant’s plan is managed by the Agency, the plan must provide that the supports are to be provided only by:
(a)for supports provided to a participant in a participating jurisdiction—a registered NDIS provider; or
(b) otherwise—a registered provider of supports.
(7)A participant’s plan may include additional matters, including such additional matters as are prescribed by the National Disability Insurance Scheme rules.
Note: For example, a participant’s plan may include arrangements for ongoing contact with the Agency.
(8)…
CONSIDERATION
Issue 1: Whether the new SOPS dated 25 August 2021 should be “plan-managed”, instead of “NDIA-managed”
When making the Decision Under Review, the NDIA decided to change the plan management of Mr Anassis’s new SOPS from being “plan-managed”, to “NDIA-managed”.
At the time of lodging the NDIA’s USFIC, the NDIA contended that no plan management request under s 43 of the NDIS Act had been made by or on behalf of Mr Anassis, and that his plan should remain “NDIA-managed” for the following reasons:[5]
[5] Refer Respondent’s USFIC at [16] and [17].
(a)the “sheer value of the funding” which totalled $934,268.02 (excluding home modifications), and that those funds are “tax-payer funded” monies and warrant an “NDIA-managed” plan;[6]
[6] Ibid at [18].
(b)agency management provides a direct line of oversight and control of the funds, ensuring they are utilised exactly as authorised by the plan. This negates the possible misapplication of the funds and accords with the principle that the “financial integrity of the NDIS is an important consideration”;[7]
[7] Ibid at [19].
(c)when a plan is “plan-managed”, a registered third-party organisation (engaged by Ms Anassis in this case), will be engaged to manage the plan. While the plan manager is responsible for expenditure of the funding and management of the administrative tasks, such as invoice collection, the NDIA contends they are external to the NDIS and this lack of direct oversight over the spending of allocated funds can “create a lag in the time for the discovery and rectification of funding errors or anomalies”;[8]
[8] Ibid at [20] and [21].
(d)the NDIA’s concern that Ms Anassis may try to exert influence and control over an external plan manager, particularly given she is adamant that family members should be paid to provide supports to Mr Anassis, and that she will be working closely with them under this arrangement;[9]
(e)the NDIA’s concern that by Ms Anassis seeking to exert control and influence, when, objectively viewed, this may not always be in Mr Anassis’s best interests, citing the following as examples:
(i)comments made by Ms Anassis to a prospective SDA provider, which the NDIA asserts resulted in the withdrawal of an offer by them to provide a refitted and refurbished two-bedroom SDA unit in Hampton East for Mr Anassis to reside in;[10]
(ii)Ms Anassis’s insistence in an email to Ms O’Kane, specialist support coordinator, on 22 October 2021 that she is to appoint Nick as Mr Anassis’s support worker team leader, demonstrating that Ms Anassis sought to exert familial control within the context of plan funding expenditure, in circumstances where Ms Anassis was aware that the issue of whether family members should be paid to provide supports to Mr Anassis remained as an unresolved issue in this proceeding. The NDIA contends that this further demonstrates Ms Anassis’ “lack of judgment and insight”, acting in her capacity as Mr Anassis’s plan nominee;[11]
(iii)Ms Anassis’s propensity to amplify her concerns such as pressing for an expedited hearing in this matter due Mr Anassis being in a “crisis situation”, when this was not borne out by the evidence;[12] and
(iv)Ms Anassis’s “escalated and emotive language” on occasion, to press her position when dealing with professionals engaged to support Mr Anassis, citing the example of her email to Ms O’Kane dated 22 October 2021 where Ms Anassis states: “Or are we all waiting for a tragedy to occur and Emanual loses his life through gross neglect?”.[13] The Respondent contends this may not be effective at maintaining healthy long-term professional relationships focussed on supporting Mr Anassis, and could be deleterious to the support he receives;[14]
(f)Ms Anassis’s conduct did not appear to be focussed on Mr Anassis and his needs but rather, on merely agitating her position to achieve a desired outcome; specifically, that Nick and herself be paid to provide support to Mr Anassis; and
(g)an “NDIA-managed” plan would ensure oversight and the standard of services provided to Mr Anassis.[15]
[9] Ibid at [22] and [30].
[10] Ibid at [23] and [24].
[11] Ibid at [25] and [26].
[12] Ibid at [28].
[13] Refer email correspondence lodged by the Respondent on 28 October 2021.
[14] Ibid at [29].
[15] Ibid at [31].
In relation to the last reason referred to in paragraph [35(g)] above, the Respondent made the following submission in its USFIC (footnotes omitted):
32.Section 33(6) NDIA Act requires that when the funding in a plan is agency managed the plan must provide for supports in a participating jurisdiction (which Victoria is), be provided by a registered NDIS provider.
33.A registered NDIS provider is registered with the NDIS Commission (the Commission) and subject to oversight of their registration and quality assurance by the Commission. As NDIS registered providers such organisations are subject to more stringent oversight by the Commission and the providers must meet and maintain various requirements to be granted and maintain their registration. Some of these requirements include:
·Complying with any conditions of registration
·Demonstrating compliance with NDIS Practice Standards
·Complying with the NDIS Code of Conduct
·Have an in-house complainants management and resolution system
·Have an in-house incident management system, and notification requirements
·Full worker screening
·If applicable, meet behavioural support requirements, including for restrictive practices.
34. If the Applicant’s plan were to be plan managed, non-registered providers of services could be utilised. Whilst the non-registered providers must follow the NDIS Code of Conduct, there is not the level of accreditation and oversight as with registered providers. That accreditation and oversight is important in this matter to ensure the standard and quality of care for the Applicant, particularly given his vulnerability.
After the hearing on 15 November 2021, the Tribunal made directions for the lodgement of closing submissions by the parties. The Tribunal requested that the parties address three specific issues, as follows:
(a)whether the manner in which Mr Anassis pursued the review before the Tribunal was tantamount to a plan management request having been made by Mr Anassis pursuant to s 43 of the NDIS Act;
(b)whether Part 3 of the Plan Management Rules, relied upon in Mr Anassis’s USFIC, were relevant to this proceeding; and
(c)the position of the NDIA as to whether there could, or should be, flexibility in regard to the nominated service providers.
In the NDIA’s Closing Submissions dated 7 January 2022, the NDIA abandoned its earlier contention that Mr Anassis’s plan should be “NDIA-managed”, after conceding that “in effect, a plan management request can be construed to have occurred”; and in light of that concession, s 43(2) of the NDIA Act was applicable.[16]
[16] Refer NDIA’s Closing Submissions at [8] and [9].
In Mr Anassis’s Closing Submissions lodged on 24 January 2022, it was contended that Part 3 of the Plan Management Rules were not relevant, because this Part relates to a request that a plan be “self-managed”. Mr Anassis’s previous reliance upon Part 3 was stated to be “an error”. Instead, Mr Anassis’s legal representative redirected his contentions, stating that the relevant legislation to be relied upon by Mr Anassis was s 43 of the NDIS Act.[17]
[17] Refer Mr Anassis’s Closing Submissions at [6].
Section 43 of the NDIS Act provides as follows (emphasis added):
43 Choice for the participant in relation to plan management
(1)A participant for whom a plan is in effect or is being prepared may make a request (a plan management request):
(a)that he or she manage the funding for supports under the plan wholly or to the extent specified in the request; or
(b)that the funding for supports under the plan be managed wholly, or to the extent specified in the request, by a registered plan management provider he or she nominates; or
(c)that the funding for supports under the plan be managed wholly, or to the extent specified in the request, by a person specified by the Agency.
(2)A statement of participant supports in a participant’s plan must give effect to the plan management request other than as follows:
(a)if the participant is prevented from managing the funding for supports under the plan to any extent by section 44—the statement must make provision in accordance with subsection (3) of this section;
(b)if the participant has a plan nominee—the statement must provide that the funding for supports under the plan is to be managed in accordance with the terms of the plan nominee’s appointment.
(3)If the participant is prevented from managing the funding for supports under the plan wholly, or to a specified extent, by section 44, the statement of participant supports in the plan must provide that:
(a)the funding for supports under the plan is to be managed in accordance with the plan management request, to the extent that the participant is not prevented from managing it; and
(b)the remainder of the funding for supports under the plan is to be managed by:
(i)a registered plan management provider specified by the Agency; or
(ii) the Agency.
(4)If a participant does not make a plan management request, the statement of participant supports in the plan must provide that the funding for supports under the plan is to be managed by:
(a) a registered plan management provider specified by the Agency; or
(b) the Agency.
(5)If the funding for supports under a participant’s plan is to be managed to any extent by a registered plan management provider specified by the Agency, or by the Agency, the CEO must, so far as reasonably practicable, have regard to the wishes of the participant in specifying who is to manage the funding for supports under the plan to that extent.
Section 44 of the NDIS Act provides as follows:
44 Circumstances in which participant must not manage plan to specified extent
(1)The statement of participant supports in a participant’s plan must not provide that the participant is to manage the funding for supports under his or her plan to any extent if the participant is an insolvent under administration.
(1A)The statement of participant supports in a participant’s plan must not provide that a plan nominee is to manage the funding for supports under the participant’s plan to any extent if the plan nominee is an insolvent under administration.
(2)The statement of participant supports in a participant’s plan must not provide that the participant is to manage the funding for supports under his or her plan to a particular extent if the CEO is satisfied that management of the plan to that extent would:
(a) present an unreasonable risk to the participant; or
(b)permit the participant to manage matters that are prescribed by the National Disability Insurance Scheme rules as being matters that must not be managed by a participant.
(2A)The statement of participant supports in a participant’s plan must not provide that a plan nominee is to manage the funding for supports under the participant’s plan to a particular extent if the CEO is satisfied that management of the plan to that extent would present an unreasonable risk to the participant.
(3)The National Disability Insurance Scheme rules may prescribe criteria the CEO is to apply and matters to which the CEO is to have regard in considering whether either of the following would present an unreasonable risk to the participant:
(a) a participant managing the funding for supports under the plan;
(b) a plan nominee managing the funding for supports under the plan.
In the NDIA’s Closing Submissions, the NDIA contends that pursuant to s 34(2) of the NDIS Act, there are no applicable limitations brought about by s 44 of the NDIS Act or limitations imposed in Ms Anassis’s plan nominee appointment, so the SOPS must give effect to the plan management request.[18] The NDIA also contends that Part 3 of the Plan Management Rules (specifically, Parts 3.7 to 3.9) are not relevant to this proceeding, as there is no request for “self-management” or nominee plan management.[19] Those contentions align with Mr Anassis’s legal representatives’ redirected contentions, as set out in Mr Anassis’s Closing Submissions as referred to in paragraph [39] above. The Tribunal agrees with and accepts the NDIA’s and Mr Anassis’s contentions in this regard.
[18] Refer NDIA’s Closing Submissions at [10].
[19] Ibid at [12].
Returning to s 43 of the NDIS Act, the Tribunal considers that it is compelled to give effect to Ms Anassis’s plan management request. This is the case despite the Tribunal holding concerns about the potential adverse consequences for Mr Anassis that may arise from the funding in his SOPS being changed from “NDIA-managed” (or plan-managed by a plan manager appointed by the agency), to being “plan-managed” by a plan manager appointed by Ms Anassis. The Tribunal considers that it is compelled to make that change due to the operation of s 43 of the NDIS Act. Under that provision, the Tribunal is compelled to give effect to the request that has been made by Ms Anassis, as plan nominee and on behalf of Mr Anassis, that Mr Anassis’s SOPS and NDIS plan is to be “plan-managed” by a plan manager appointed by Ms Anassis.
Accordingly, by operation of s 43(1)(b) of the NDIS Act, the Tribunal concludes that Mr Anassis’s SOPS and NDIS plan are to be “plan managed” by a plan manager nominated by Ms Anassis.
Issue 2: Whether the restriction in the SOPS prohibiting Mr Anassis’s family members from providing services to him be removed, and that family members be permitted to do so
Ms Anassis was adamant throughout this proceeding, right up until 24 January 2022, that Mr Anassis’s family members, specifically, Nick and herself, should be permitted to provide supports to Mr Anassis as paid support workers. Ms Anassis maintained that she and Nick are appropriately qualified to do so, they knew Mr Anassis well, and they were effective in de-escalating his behaviours of concern when required.
As mentioned above, on 22 October 2021, Ms Anassis sent an email to Ms O’Kane requesting that Nick be appointed as the team leader of Mr Anassis’s support workers. However, on the last day of the hearing on 15 November 2021, the following representations were made to the Tribunal:
(a)Ms Anassis advised that due to Nick’s new business, Nick no longer sought to be involved in Mr Anassis’s care. However, by the end of the hearing, Ms Anassis changed her position, again, and said that Nick should have the option of covering for a support worker shift, to care for Mr Anassis, if a rostered support worker became unavailable;
(b)Mr Anassis’s legal representative informed the Tribunal that Mr Anassis did not seek to rely upon the earlier witness statement prepared by Nick in this proceeding. Further, Nick was not called to give evidence at the hearing of this proceeding at any stage, despite Ms Anassis’s earlier indications that he would do so; and
(c)Ms Anassis said that she would modify her current work commitments to her NDIS clients to make herself available to do two shifts per week for about five hours, as a support worker for Mr Anassis, if the plan allowed her to be paid for providing those services.
Subsequently, in Mr Anassis’s Closing Submissions, Ms Anassis abandoned her request to be paid to provide support worker services to Mr Anassis altogether. In those submissions, the Tribunal was informed that Ms Anassis was “no longer wanting to be paid for supporting the Applicant” and, “[a]s such, the Respondent’s position on this issue is accepted”.[20] This meant, in effect, that Ms Anassis no longer objected to the inclusion of the provision in Mr Anassis’s SOPS restricting his family members, or related entities, from being paid as support workers. The Tribunal accepts this joint position of the parties and concludes that the provision restricting family members or any related entities from being paid to provide services to Mr Anassis (see paragraph [49] below), should remain in Mr Anassis’s new SOPS, to be approved on remittal following this Decision.
[20] Refer Ms Anassis’s Closing Submissions at [7].
However, the Tribunal notes that it is open to Ms Anassis (or any other family of Mr Anassis for that matter), to reagitate that issue again at any time; for instance as part of the next plan review of Mr Anassis’s SOPS and NDIS plan. For this reason, the Tribunal considers it appropriate to determine this issue substantively, taking into account the detailed evidence given at the hearing in relation to this issue.
Under Mr Anassis’s new SOPS, funding was approved for the provision of core supports to Mr Anassis for daily activities and social participation, subject to the following restriction:[21]
This funding can only be paid for supports provided by an NDIA Registered Provider. No family members or informal supports can be paid funding from this plan family members or informal supports cannot act as sole traders or as NDIA registered providers to receive funding.
[21] Refer Decision Under Review on pages 9 and 10.
Before Mr Anassis became a participant of the NDIS, he received supports under a State-based disability plan. Under that plan, Ms Anassis claims that she and Nick were entitled to receive payment as paid support workers. This carried over to the first iterations of Mr Anassis’s SOPS and NDIS plans, with the NDIA’s approval, on the understanding that Mr Anassis would gradually transition away from being supported by family members working as paid support workers, to being supported by external support workers. This transition did not progress as quickly or extensively as anticipated.
Under previous SOPS’s for Mr Anassis, which did not include the restriction referred to in paragraph [49], Ms Anassis engaged a plan manager and gave instructions to facilitate the payment of significant funds to her (Ms Anassis) under the NDIS, in respect of support worker services reportedly provided by her and Nick to Mr Anassis. Subsequently, an audit took place revealing the quantum of payments made to Ms Anassis referrable to support worker services provided by her and Nick. Thereafter, the NDIA introduced the restriction referred to in paragraph [49] into Mr Anassis’s new SOPS and changed his plan from being “plan-managed” to “NDIA-managed”.
Part of Ms Anassis’s stated reasons for why it was reasonable and necessary for her and Nick to be paid as Mr Anassis’s support workers, was based on her claims that there was insufficient access to external support workers to fill the shifts for which Mr Anassis has been funded under this SOPS and for the reasons referred to in paragraph [45].
The Tribunal does not accept that Mr Anassis’s access to external support workers was insufficient. The Tribunal finds that this problem arose, in part, because up until early-2021, Ms Anassis did not facilitate the appointment of a support coordinator for Mr Anassis due to her own personal preferences. Had she done so, the support coordinator could have facilitated the linkage between Mr Anassis and an agency or agencies that were able to supply a sufficient number of support workers to fill the funded shifts under Mr Anassis’s SOPS and NDIS plan.
During this earlier period, Ms Anassis was offered an interim Level 2 support coordinator for Mr Anassis, until such time as a Level 3 specialised support coordinator could be found. Ms Anassis declined that offer. She said she preferred to have no one providing support coordination services to Mr Anassis, in circumstances when it was possible for a Level 2 support coordinator to have provided some assistance to him. In the Tribunal’s view, this decision by Ms Anassis to decline the offer of a Level 2 support coordinator for Mr Anassis, compounded the impacts of the COVID-19 pandemic on Mr Anassis, left him without a satisfactory level of day-to-day support workers and allied health professional supports throughout 2020, and the beginning of 2021.
This problem also arose due to unreasonable requirements that were imposed by Ms Anassis as to the demographic of support worker she preferred to be engaged to provide support worker services to Mr Anassis; specifically, that they be female and not of Asian descent.
It was in these circumstances that Ms Anassis contended, at the time, that Mr Anassis was in a state of crisis and in urgent need of an increased level of support workers to assist him. Ms Anassis offered for Nick and herself to step in and to provide such assistance, only provided they were paid to do so, even though the Tribunal considers that Ms Anassis had been the substantial cause of the shortage of supports to Mr Anassis at that time.
The Tribunal does not consider that the solution to this perceived problem lies in Ms Anassis and Nick being paid as support workers to care for Mr Anassis. Instead, the Tribunal considers that the answer lies in allowing the support coordinators now engaged to care for Mr Anassis to be unhindered (by Ms Anassis) in their duties, so they may continue to link Mr Anassis to a suitable agency or agencies capable of ensuring that the funded shifts are filled with external support workers. The Tribunal considers that Ms Anassis should not be imposing seemingly arbitrary conditions of the type of support workers who are to be engaged to support Mr Anassis. This is a matter for Mr Anassis, his support coordinators, and the support worker agency.
The Tribunal concludes that the restriction referred to in paragraph [49] should not be removed from Mr Anassis’s SOPS. Aside from recent notification to the Tribunal that neither Ms Anassis, nor Nick, are requesting to be paid as support workers to care for Mr Anassis, the Tribunal does not consider that this would be an effective and beneficial support for Mr Anassis now, or at any time into the future. The Tribunal considers that it will negatively impact on Mr Anassis’s independence and may potentially change the nature of his relationship with those family members. Instead, the Tribunal considers that Ms Anassis and Nick should be limited to providing informal (unpaid) support to Mr Anassis as his mother and brother, in the usual manner in which family members regularly spend time together. The Tribunal considers that it is favourable to leave the formal support of Mr Anassis’s disability-related care needs, to objective professionals who have no familial relationship with him, such as external support workers, the support worker agencies engaged by him, genU, allied health professionals, and his support coordinators.
For those reasons, the Tribunal concludes that the provision in Mr Anassis’s SOPS restricting his family members, or entities relating to them, from being paid to provide support worker or other services to Mr Anassis, should be included in his new SOPS to be approved resulting from this Decision.
Issue 3: Whether the restriction in the SOPS allowing only two specified agencies to provide core support services to Mr Anassis should be removed, and that any agency be permitted to do so
The last issue relates to Ms Anassis’s understanding that Mr Anassis’s SOPS currently does not permit him to engage any service providers other than those specified in the provision within his SOP which states as follows:[22]
Funding can only be accessed to pay the following NDIA Registered Providers: Possibility [registration number omitted] & Hearth [registration number omitted]
[22] Refer Decision Under Review at 9 and 10.
Prime facie, this provision imposes a restriction that the funding for core supports can only be used for two service providers as named in the SOPS. It is understandable why Ms Anassis has raised her concern about this. However, the NDIA has at all times represented to Ms Anassis that if an alternative service provider is identified who can provide support worker services to Mr Anassis, an adjustment can be made within the NDIA’s administration systems, to facilitate the payment of a new alternative service provider, and that it is not necessary to make any changes to Mr Anassis’s SOPS to achieve this outcome. This appears to have occurred already in that a new service provider, Hearth, has commenced providing support worker services to Mr Anassis and has been paid under Mr Anassis’s SOPS for doing so.
Regardless of the “back office” administrative changes, which the NDIA says can and does occur with respect to any new service provider which may be used to provide core supports to Mr Anassis, the Tribunal considers that the provision set out in paragraph [60] requires amendment so that it reflects the flexibilities that the NDIA asserts it has and applies in practice, in relation to the engagement and payment of service providers.
The Tribunal considers that the SOPS should accurately reflect the intended practical operation of Mr Anassis’s SOPS and NDIS plan. For this reason, the Tribunal will direct that a provision specifying that the service providers currently engaged to provide support workers to support Mr Anassis, and any other suitable agencies which may be identified at a later time as being able to provide additional support workers to Mr Anassis, may be engaged by Ms Anassis for such purpose, and will be funded under the Applicant’s new SOPS arising from this remittal.
NON-BINDING OBSERVATIONS
The Tribunal also considers it appropriate to address a significant concern arising in relation to the conduct of Ms Anassis in her role as Mr Anassis’s appointed plan nominee, by making a number of non-binding observations as set out below. The Tribunal will deal with each of those matters in turn.
The NDIA referred to Ms Anassis’s duty to avoid or to manage any conflict of interest in her capacity as Mr Anassis’s appointed plan nominee. When Ms Anassis was asked at the hearing whether she was aware of this duty and had seen the relevant provision in the National Disability Insurance Scheme (Nominee) Rules 2013 (Nominee Rules), she said she had not done so.
More broadly, under s 88(3) of the NDIS Act and rule 4.7 of the Nominee Rules, when the CEO of the NDIA appoints a person as a nominee, they must have regard to whether the person is willing and able to comply with the duties of a nominee to a participant as set out in s 80 of the NDIS Act and Part 5 of the Nominee Rules. Under rule 4.8 of the Nominee Rules, the CEO must also have regard to several matters including (among others):
(a)the degree to which the person is willing and able to:
(i) act in conjunction with other representatives and supporters of, and carers for, the participant to maximise the participant’s wellbeing;
(ii) involve the participant in decision-making and assist the participant to make decisions for themselves; and
(iii) ascertain what judgements and decisions the participant would have made for him or herself;
(b)the degree to which the person understands and is committed to performing the duties of a nominee;
(c)the degree to which the person is familiar with, and able to work with, any communication system or other technological supports of the participant;
(d)any relevant views of the carers or other persons who provide support to the participant; and
(e)any conflict of interest in relation to the person and the participant.
The Tribunal notes that ss 89, 90 and 91 of the NDIS Act and rule 6.4 of the Nominee Rules provide for the suspension and cancellation of a nominee in circumstances where the ability of the person to act as nominee becomes compromised, or the CEO has reasonable grounds to believe that the nominee has caused, or is likely to cause, physical, mental, or financial harm to the participant. This may occur inadvertently; or may involve actions which are accompanied with a genuine intention by the nominee to act beneficially for the participant but are, in practice, ineffective or misplaced, and end up having the opposite outcome.
The Tribunal acknowledges that this proceeding before the Tribunal is not about whether Ms Anassis should remain as Mr Anassis’s appointed plan nominee. However, and as a non-binding observation, the Tribunal considers that the evidence presented in this case relates to matters referred to in rules 4.7 and 4.8 on the Nominee Rules and raise for consideration by the NDIA whether Ms Anassis’s appointment as Mr Anassis’s plan nominee should remain on foot; and if so, whether it should be subject to specific limitations to be stated in the plan nominee appointment instrument.
The Nominee Rules set out in Part 5 spell out how appointed nominees are expected to act and refer to general and specific duties including the duty of the nominee to:
(a)ascertain the wishes and to promote the personal and social wellbeing of the participant – rule 5.3 and 5.4;
(b)act only if the participant is not capable – rules 5.4 to 5.7;
(c)consult with any person who assists the appointed plan nominee to manage their day-to-day activities and make decisions (such as Mr Anassis’s support coordinators and service providers) – rule 5.8;
(d)develop capacity of the participant where possible to a point where the nominee is no longer required – rule 5.10; and
(e)to avoid or manage conflicts of interest – rules 5.12 and 5.13.
Specifically, under rules 5.12 and 5.13 of the Nominee Rules, Ms Anassis has the following duty in respect of Mr Anassis:
5.12 A nominee has a duty to the participant to:
(a)avoid or manage any conflict of interest in relation to the nominee and the participant; and
(b)inform the CEO of any such conflict of interest as it arises.
5.13Without limiting paragraph 5.12, a conflict arises if the nominee is, in a professional or administrative capacity, directly or indirectly responsible for, or involved in, the provision or any services for fee or reward to the participant.
By way of a non-binding observation, the Tribunal considers that Ms Anassis failed to fulfil her duty to Mr Anassis to avoid or to manage the conflict of interest that clearly arose from her seeking to act as Mr Anassis’s plan nominee, and in that role, requesting that the plan manager appointed by her prior to the commencement of Mr Anassis’s current plan, authorise and make substantial payments from Mr Anassis’s allocated funds under his SOPS to Ms Anassis personally, for support worker services purportedly provided by Ms Anassis and Nick to Mr Anassis.
As mentioned above, Ms Anassis failed to manage this conflict of interest by proposing that she and Nick be paid as support workers to care for Mr Anassis in circumstances where the Tribunal is satisfied that Mr Anassis was the cause of the shifts not being filled by external support workers. The Tribunal is not suggesting that this was a deliberate strategy employed by Ms Anassis. Instead, the Tribunal considers that Ms Anassis lacks insight into the negative impact of her own actions in the way she carries out her duties as Mr Anassis’s plan nominee, upon Mr Anassis and his situation. As well-intentioned as Ms Anassis may be, the Tribunal finds that her lack of judgement and insight has frequently delivered poor outcomes for Mr Anassis. The Tribunal considers that the evidence before the Tribunal supports the assertions by the NDIA as set out in paragraph [35(e)] above.
The Tribunal is satisfied that Ms Anassis has no real sense of the conflict of interest that arose from her pursuit of payment to her and Nick to provide paid support worker services to Mr Anassis. It also highlighted Ms Anassis’s inability to appropriately manage this conflict of interest. On 29 October 2021, the NDIA wrote to Ms Anassis to notify her that it had raised a debt against Ms Anassis (under s 182 of the NDIS Act), for the sum of $32,287.03 said to have arisen from payments made to her from Mr Anassis’s NDIS plan to which she was not entitled.
The Tribunal is satisfied that as well-meaning as Ms Anassis may be, she has not fulfilled her duties to Mr Anassis as his plan nominee. Specifically, the Tribunal observes that:
(a)Ms Anassis has not avoided or managed a significant conflict of interest existing between her and Mr Anassis since her appointment as plan nominee until the present time, by Ms Anassis’s insistence (until recently) that she and Nick be paid as support workers to support Mr Anassis, and that Nick be made the “team leader”; and
(b)Ms Anassis has made several decisions regarding certain aspects of the supports to be sourced and/or provided to Mr Anassis under the NDIS and communicated with key support workers and prospective and current service providers, in ways that are counterproductive and detrimental to the ongoing maintenance of those key relationships between Mr Anassis and the professionals he relies upon to support him. Ms Anassis has imposed unreasonable restrictions of the types of support workers who should care for Mr Anassis. She has also decided on one occasion that it was better for Mr Anassis to have no support coordinator, when a Level 2 support coordinator was available and willing to assist him, if only on an interim basis until a Level 3 support coordinator was able to be identified. Ms Anassis’s expectations are often irrational and too high when it comes to engaging service providers, which has resulted in Mr Anassis missing out on the support he has needed, and which support has been funded under his NDIS plans.
One further instance of the type of conduct referred to in paragraph [74(b)], involved Ms Anassis making derogatory remarks to an SDA provider which resulted in Mr Anassis missing out on an opportunity to have a new SDA unit built for him at a time when it was considered beneficial for him to move to alternative accommodation. Ms Anassis sought to justify certain negative comments she had made to the prospective SDA provider on the basis that she did not want her son moving from one compact unit to another, the proposed new SDA was on a main road, and she was promised that the alternative SDA would be “new build”, but when she attended the site she was informed that it would be constructed from an existing, but “gutted”, 1970’s brick home, which had been refitted into two separate units.
Ms Anassis denied that she had seen the floor plans for this unit. She was able to indicate to the Tribunal that it was a two-bedroom unit. Mr Anassis presently lives in a one-bedroom unit. Ms O’Kane gave evidence at the hearing on 15 November 2021 that she had given Ms Anassis a copy of the floor plan of the proposed alternative SDA. Those floor plans show a spacious two-bedroom, two-bathroom unit with a separate kitchen, living room and dining room and an escape door to the outside from the second bedroom making it suitable for an overnight support worker to exit from if Mr Anassis became violent. Following Ms Anassis’s critical and misplaced remarks, the SDA provider ceased discussions with her about offering that spacious and functional unit to Mr Anassis and instead, offered it to another person.
The Tribunal observes that Ms Anassis’s conduct referred to in the above paragraph, has caused, or is likely to cause, physical, mental, or financial harm to Mr Anassis, if she is to remain appointed as his plan nominee. Ms Anassis has, in many instances, obstructed the optimal provision of supports to Mr Anassis. The Tribunal considers that it would be appropriate for the NDIA to undertake an urgent review as to whether Ms Anassis should remain in the role of Mr Anassis’s appointed plan nominee; or at least, whether certain limitations should be imposed as to the terms or the scope of her appointment and authority as Mr Anassis’s plan nominee.
CONCLUSION
In conclusion and for the reasons set out above, the Tribunal sets aside the Decision Under Review and remits this matter to the Respondent for reconsideration on or before 17 April 2022, with a direction that the relevant delegate of the Chief Executive Officer of the Respondent approves a new SOPS for Mr Anassis, containing the following:
(a)a review date falling on the 12-month anniversary of the reconsideration decision made under this remittal;
(b)all of the Applicant’s existing supports replicated on a pro rata basis for a period of 12 months;
(c)the funding for supports under this SOPS be “plan-managed” by a plan manager appointed by Mr Anassis’s plan nominee;
(d)a provision prohibiting the expenditure of any of the funding in the SOPS being used to pay Ms Georgia Anassis, Mr Nick Anassis, or any other immediate or extended family member of the Applicant (or any service provider or entity related to those family members), to provide supports to Mr Anassis as support workers or in any other capacity; and
(e)a provision specifying that the service providers currently engaged to provide support workers to care for Mr Anassis and/or any other suitable agencies which may be identified at a later point in time, may be engaged by Mr Anassis for such purpose, and will be funded under the Applicant’s new SOPS.
I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker
.............................[sgd]...........................................
Associate
Dated: 4 April 2022
Dates of hearing: 12 January 2021, 28 and 29 April 2021 and 15 November 2021 Date final submissions received:
25 January 2022
Advocates for the Applicant: Mr Martin Radzaj of Counsel (on first three days of the hearing) & Mr Aziz Helou (on the last day of the hearing)
Solicitors for the Applicant: AED Legal Centre Counsel for the Respondent: Ms Katrina Musgrove Solicitors for the Respondent: National Disability Insurance Agency
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