Filardo and National Disability Insurance Agency
[2020] AATA 4092
•9 October 2020
Filardo and National Disability Insurance Agency [2020] AATA 4092 (9 October 2020)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number:2018/5608
Re:Vincenzo Filardo
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
INTERLOCUTORY DECISION
Tribunal:Member K. Parker
Date:9 October 2020
Place:Melbourne
The Tribunal orders that Mr Francesco Filardo (otherwise known as Mr Frank Filardo) is hereby excluded from representing the Applicant, Mr Vincenzo Filardo, in this application, with immediate effect.
[sgd].......................................................................
Member K. Parker
Catchwords
PRACTICE AND PROCEDURE – issue regarding representation of applicant – applicant is an adult participant under National Disability Insurance Scheme (NDIS) – applicant suffers from mental health conditions – father of applicant previously appointed by National Disability Insurance Agency (NDIA) as his plan nominee – NDIA subsequently suspended appointment as plan nominee – whether Tribunal should permit father of participant to continue to represent applicant – father has sought inclusion of specialist disability accommodation (SDA) at specified location in the applicant’s NDIS plan – father proposes SDA be provided to applicant by an incorporated association wholly controlled by applicant’s father – specified location of SDA is located within family home of applicant and his parents – father has conflict of interest – applicant and applicant’s mother were not informed by father about application until recently – Tribunal not satisfied applicant knows what this application is about –Tribunal considers father is not able and willing to represent the applicant’s best interests – Tribunal satisfied applicant able to make his own decisions, with support from his mother and members of support team – history of father obstructing applicant’s involvement in this proceeding and from receiving therapeutic and support coordination supports under NDIS plan – father has made false representations to NDIA and Tribunal claiming that applicant was homeless when he was not – Tribunal satisfied continued representation of applicant’s father likely to hinder performance of Tribunal’s obligations to conduct proceeding – Tribunal orders that father be excluded from representing applicant with immediate effect
Legislation
Administrative Appeals Tribunal Act 1975
National Disability Insurance Scheme Act 2013
Cases
Filardo and National Disability Insurance Agency [2020] AATA 1138
REASONS FOR DECISION
Member K. Parker
9 October 2020
On 5 October 2020 an interlocutory application was made by the National Disability Insurance Agency (NDIA) seeking orders from the Tribunal that the Applicant’s father, Mr Francesco Filardo (also known as Mr Frank Filardo) (Frank), be excluded as the representative of the Applicant, Mr Vincenzo Filardo (Vincenzo) in this proceeding. This application was heard and determined by the Tribunal today.
In an earlier interlocutory decision made by this Tribunal on 21 April 2020, the Tribunal decided (among other things) to permit Frank to continue to represent Vincenzo in these proceedings, on the basis that he was Vincenzo’s father and at that time, Vincenzo’s appointed “plan nominee” under the National Disability Insurance SchemeAct 2013 (NDIS Act).[1]
[1] Refer Filardo and National Disability Insurance Agency [2020] AATA 1138.
A lot has changed since that interlocutory decision was made.
Firstly, on 7 September 2020, under s 91 of the NDIS Act, the NDIA suspended Frank’s appointment as “plan nominee” for reasons including that the NDIA considers that Frank has a conflict of interest; that he is unwilling and unable to act in Vincenzo’s best interests and may well cause harm to Vincenzo’s physical and mental well-being. Unless Frank can respond satisfactorily to the NDIA’s stated concerns as set out in the NDIA’s suspension notice, Frank’s appointment as “plan nominee” may be cancelled.
Secondly, since that interlocutory decision and after the Tribunal warned Frank about not obstructing the provision of supports to Vincenzo under his current NDIS plan, the Tribunal is pleased to receive an update from the NDIA that Vincenzo now has an NDIS-funded support team assisting him, comprising a specialist support coordinator, a behaviour support therapist and an occupational therapist. The support team has recently interacted with Vincenzo, Frank and Vincenzo’s mother, Mrs Anita Filardo (Anita), in the process of providing specialist support coordination and therapeutic supports to Vincenzo. Vincenzo has been receptive and the reports which have been lodged with the Tribunal by the support team, indicate that Vincenzo’s situation is much improved and that he is more active than he was previously. The Tribunal commends those individuals who have facilitated this positive development.
This is in stark contrast to the situation that existed before the last interlocutory decision, where no support team had been involved with assisting Vincenzo for some time, despite funding being available for those supports under his NDIS plan.
Finally, the state of awareness and the preferences of Vincenzo and Anita have come to light, as a result of the following:
(a)the further interactions between Ms Jesbera-Hoogendijk, Occupational Therapist, and Vincenzo pursuant to previous directions issued by the Tribunal; and
(b)the more recent interactions between Vincenzo and/or Anita and the members of Vincenzo’s new NDIS-funded support team.
The NDIA has lodged further submissions and detailed reports, witness statements and file notes made by Ms Jesbera-Hoogendijk, and the members of Vincenzo’s new support team. The Tribunal has considered the oral submissions made to the Tribunal on 9 October 2020 by Frank and by his newly appointed advocate, Mr Frank Damiano. Based on the evidence presented by the NDIA, Frank’s response and Mr Damiano’s response to the NDIA’s submissions and evidence, the Tribunal is satisfied in relation to the following matters:
(a)Vincenzo has the capability to make decisions about what supports are to be provided to him under his NDIS plan and whether to seek a review about the statement of supports in his plan;
(b)if any support is to be provided to Vincenzo in making those decisions, the appropriate persons to provide that support are Anita as his mother, carer and financial administrator as appointed by the Victorian Civil and Administrative Tribunal and/or the members of his new support team. Vincenzo should have the final say over what supports are to be sought on his behalf under his NDIS plan;
(c)until recently, neither Vincenzo nor Anita were aware that the present application before this Tribunal was made by Frank;
(d)Vincenzo was initially unsure who he would like to represent him in this application, when first informed about it by Ms Jesbera-Hoogendijk, and stated that he did not know what it was about – instead, he expressed a clear desire to be consulted and that he needed to agree about things related to his plan;
(e)subsequently on 16 July 2020, Vincenzo told Ms Jesbera-Hoogendijk that he knew nothing about this application and that his father “does all this”. Vincenzo told Ms Jesbera-Hoogendijk he wanted to be involved and consulted in all decisions “small and big” and that his father did not talk to him about his NDIS plan of which he did not have a copy;
(f)Vincenzo has requested that his new support team not talk to Frank and that they should talk to Vincenzo directly. Vincenzo told them in August 2020 that Frank was “losing his marbles”; that he is 80 years old and did not know what was going on. The Tribunal has observed for itself during this proceeding that Frank becomes confused easily and has been unable to grasp simple concepts. He is becoming increasingly difficult to communicate with due to limitations when using technology and there have been constant interruptions to his internet and telephone service. The Tribunal does not consider that these difficulties will be overcome by the very recent appointment by Frank of a new advocate. This Tribunal has seen advocates for Frank come and go since this application was first issued and is not confident that any assistance provided by Frank’s advocate, as well-meaning as the advocate may be, would be anything other than disjointed and transient;
(g)Anita has indicated she was not aware that Frank had made this application and that she did not know what Frank was up to. Anita has indicated that at no time Vincenzo was homeless, as falsely represented by Frank to the NDIA and the Tribunal; that Vincenzo lived at home with her; that Vincenzo was “not going anywhere”; and that when she died, in Anita’s words, she would give Vincenzo to the specialist support coordinator to handle;
(h)Vincenzo’s recently-appointed behaviour support therapist reported that Vincenzo had told him that: “Dad is up to no good” and “I don't know what my dad is up to, but I know he is up to no good and from now on I want to know what he is doing”;
(i)Vincenzo was reported to have broken down in front of his recently appointed occupational therapist (OT) and had told the OT that he felt he had no control over his life and that his father is “doing things behind his back”. Vincenzo is reported to have told the OT that he felt “no self-worth” and that his father is “working against him every day”;
(j)on 4 September 2020 Anita reportedly informed Vincenzo’s specialist support coordinator that she considers that she should be managing Vincenzo’s NDIS plan because she was his carer;
(k)Vincenzo is reported to have laughed at the suggestion that he might be required to live anywhere else and stated that “of course” he was going to remain living where he was living at present, that is, in the family home;
(l)Vincenzo’s treating behavioural support therapist reported that Vincenzo had demonstrated that when he was not being erratic that he had the capacity to cook, clean, shop, use technology (smart TV and coffee machine) and to generally make decisions for himself with appropriate supports in place. This therapist states in his report that Vincenzo was untrusting of Frank, but seemed to be trusting of Anita;
(m)Vincenzo’s treating OT reported that he had observed the Applicant’s mental state to fluctuate and that the Applicant could become overwhelmed quickly and agitated in his parents’ presence. This therapist stated that he considers that Vincenzo’s family’s wishes should be considered, but Vincenzo should be supported by external support advocacy.
At the end of the hearing today, Frank put Vincenzo on the telephone line so that he could speak to the Tribunal. This is the first time the Tribunal has heard from Vincenzo. Vincenzo’s speech was slurred. Vincenzo told the Tribunal that his father wanted to look after him and that he had “agreed with whatever”. The Tribunal asked Vincenzo whether he knew what this case was about. Vincenzo said he did not, and that he did not know what he was doing. Vincenzo described himself as being heavily medicated and wanted to leave the call.
Based on those matters, the Tribunal is not satisfied as to following important matters:
(a)whether Vincenzo wishes to have funding included in his NDIS plan for the provision of specialist disability accommodation by the incorporated association which has been established and is wholly controlled by Frank; and
(b)whether Vincenzo supports the present application being made to this Tribunal and wishes for it to proceed.
Separate to those considerations, the Tribunal notes the contentions by the NDIA that Frank has a conflict of interest in representing Vincenzo, due to Frank’s position in respect of the entity that has been specified as the service provider to provide the specialist disability accommodation if it is approved, that is, the Australian Dual Diagnosis Recovery Network Inc. Frank is the sole officeholder of this entity. Despite requests from the Tribunal from as early as March 2020, Frank has been unable to name the other members of this association or to produce the association’s Register of Members (required at law to be maintained), nor has Frank been able to produce a document which evidences the purposes and objectives of this incorporated association.
The Tribunal notes that Frank has recently procured thousands of dollars from the NDIS funds available to Vincenzo under his NDIS plan, which have been paid to the Australian Dual Diagnosis Recovery Network Inc, purportedly for the provision of “respite care” to Vincenzo even though Vincenzo’s circumstances have not changed in that he has at all relevant times remained living with Frank and Anita in their family home. Appropriately, the NDIA has now put a stop to this.
Frank has repeatedly failed to comply (without adequate explanation and in some cases, no explanation) with the Tribunal’s directions requiring him to produce documents which would enable the Tribunal to establish:
(a)the legitimacy of this incorporated association;
(b)the legitimacy of the legal arrangement between this incorporated association and Frank and/or Anita in respect of the use of the family home by this entity to provide specialist disability accommodation services to an NDIS participant; and importantly,
(c)whether funds paid to this incorporated association to date have been inappropriately redirected to Frank for his own personal benefit. There can be no feasible explanation as to why Frank as the sole officeholder of the incorporated association has been unable to produce its bank statements pursuant to the Tribunal directions made over six months ago.
Based on those matters and given the evidence lodged with the Tribunal to date, the Tribunal’s present view is that Frank is likely to have made this application purely for the purpose of seeking personal financial gain and has not acted to achieve any beneficial disability support for Vincenzo under his NDIS plan. This situation is coupled with an unfortunate history of Frank continuously obstructing Vincenzo from receiving well-needed therapeutic and support coordination outside of the family home from appropriately skilled and qualified professionals. Contrary to Frank’s previous obligations as a plan nominee, of which the Tribunal has painstakingly sought to explain to Frank, Frank has not facilitated Vincenzo’s involvement in the present application before this Tribunal until the Tribunal heard from Vincenzo for the first time at the end of the hearing today while he was in a heavily medicated state.
The Tribunal is satisfied that Frank has a conflict of interest in representing Vincenzo in this proceeding and that if he were to do so, the Tribunal lacks any confidence that Frank would represent Vincenzo in a way that serves Vincenzo’s interests over his own. The appointment of a new advocate for Frank does not save this situation because Frank has demonstrated that he will terminate the services of an advocate if they do not do exactly what he says, as Frank has done with several of Vincenzo’s support workers and other advocates in the past.
The Tribunal considers that Frank has demonstrated that he is unwilling and unable to act in Vincenzo’s best interests in this application. Further, by making false representations to the NDIA and the Tribunal that Vincenzo had at one point been “homeless”, when in fact, this has never been the case, satisfies the Tribunal that Frank’s continued representation of Vincenzo in this application and Frank’s continued participation in this proceeding, is likely to hinder the Tribunal’s performance of its obligations under the Administrative Appeals Tribunal Act 1975 in hearing and determining this application, if indeed Vincenzo’s wish is for this application to proceed.
For all the reasons described above, the Tribunal orders that Frank is excluded from representing Vincenzo in this application, with immediate effect.
Separately from this interlocutory decision, the Tribunal has issued a set of directions in relation to the future progress of this proceeding.
19. I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the interlocutory decision of Member K. Parker
[sgd]....................................................................
Associate
Dated: 9 October 2020
Date of interlocutory hearing: 9 October 2020 Advocates for the Applicant: Frank Damiano and Francesco Filardo Counsel for the Respondent: Darren A Bruno Solicitors for the Respondent: Maddocks
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