Hoolachan and National Disability Insurance Agency (NDIS)
[2025] ARTA 715
•10 June 2025
Hoolachan and National Disability Insurance Agency (NDIS) [2025] ARTA 715 (10 June 2025)
Applicant:Ms Tracey Hoolachan
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2024/4779
Tribunal:Deputy President K Dordevic
Place:Sydney
Date:10 June 2025
Decision:The Tribunal affirms the decision under review.
.........................[SGD]..........................................
Deputy President K Dordevic
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME –past NDIS amounts recoverable from
lump sum compensation received by participant – whether recoverable amount is correct –special circumstances – whether special circumstances exist – decision under review affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)Cases
Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9
Beadle v Director-General of Social Security (1985) ALR 228
Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179
Dranichnikov v Centrelink [2003] FCAFC 133
G v MIBP [2018] FCA 1229
Kirkbright & Secretary, Department of Family and Community Services [2000] FCA 1876
Re Beadle and Director-General of Social Security [1984] AATA 176
Re Krzywak and SDSS [1988] ATTA 270
Re Randall and SDFHCSIA [2011] AATA 922
Re SDSS and Gibala [1989] AATA 387
SDSS v Hales (1989) FCR 162
Usher and National Disability Insurance Agency (NDIS) [2025] ARTA 592ZZXM and CEO, National Disability Insurance Agency [2024] ARTA 24
Secondary Materials
Compensation Operational Guideline – Special Circumstances
National Disability Insurance Scheme (Supports for Participants – Accounting for Compensation) Rules 2013 (Cth)
Statement of Reasons
BACKGROUND
Ms Hoolachan (the Applicant) is a 62-year-old woman living with a right above knee amputation and vascular issues in her left leg. She met the access requirements of the National Disability Insurance Scheme (NDIS or scheme) on 25 October 2017.
On 2 August 2019 the Applicant commenced proceedings in the Supreme Court of Queensland for medical negligence (the compensable event). On 17 November 2023 the claim was settled and the Applicant received compensation in the amount of $450,000 (the settlement sum).[1]
[1] T42.
On 4 December 2023 the Chief Executive Officer (CEO), National Disability Insurance Agency (the Respondent or Agency) issued a recovery notice to the Applicant proposing to recover $35,500.64[2] (the recoverable amount) from the compensation awarded to her, representing payments by the Agency for supports funded under the Applicant’s support plan during the period 25 October 2017 (the date on which she became a participant) to 16 November 2023 (the day before she was awarded her settlement) (the relevant period).[3]
[2] R5 and R6.
[3] T46.
On 29 December 2023 the Applicant submitted an application seeking that the compensation recoverable amount be reduced to nil due to special circumstances.[4]
[4] T49.
On 26 February 2024 the Respondent advised the Applicant that her application was unsuccessful (the original decision); that it, that the recovery amount was still payable.[5]
[5] T57.
On 18 March 2024 the Applicant lodged a request for review of that decision with the NDIS Division of the Administrative Appeals Tribunal (the AAT) for an independent review of the decision.[6] On 18 June 2024 the Tribunal dismissed the application for review on the basis that the decision was not reviewable by the AAT.[7]
[6] T59.
[7] T66.
On 5 June 2024 the Applicant lodged with the Agency a request for a review of the original decision.[8] This decision was confirmed on internal review on 27 June 2024.[9]
[8] T65.
[9] T67.
On 8 July 2024 the Applicant again lodged a request for review with the AAT.[10]
[10] T1.
From 14 October 2024 the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is made by the Tribunal.[11]
[11] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The Tribunal held a hearing by Microsoft Teams - Video on 10 February 2025. The Applicant was self-represented. The Respondent was represented Mr Paul d’Assumpcao of counsel. The Tribunal also had the benefit of oral testimony provided under affirmation from the Applicant.
At the conclusion of the first day of the hearing, the matter was adjourned. On the same day the Tribunal issued an order in the following terms:
1.On or before 27 February 2025, the Respondent must provide to the Applicant and the Tribunal:
a) all quotes and other relevant documentation provided by [the Applicant] and/or her (then) fund manager or support co-ordinator in respect of the provision of a medical bed, mattress and over bed pole which resulted in varying [the Applicant]’s Statement of Planned Supports, with the consent of [the Applicant] and the Respondent, on 24 January 2024 to include a medical bed, mattress and over bed pole in the amount of $3,250, pursuant to section 26 of the Administrative Appeals Tribunal Act 1975;
b) submissions, and any relevant corroborating documentation, as to what steps, if any, [the Applicant] and/or her (then) fund manager or support co-ordinator took to return the medical bed, mattress and over bed pole to Think Mobility Pty Ltd and seek reimbursement of the costs associated with their purchase; and
c) provide submissions, with relevant corroborating evidence, stating whether a full or part refund was provided by Think Mobility Pty Ltd.
2.On or before 10 March 2025, the Applicant may provide to the Respondent and the Tribunal:
a) submissions in response to the additional documents provided by the Respondent and by summons; and
b) and any other documents or evidence on which the Applicant intends to rely.
3.On or before 18 March 2025, the Respondent must provide to the Applicant and the Tribunal:
(a)An updated Statement of Facts, Issues and Contentions; and
(b)and any other documents or evidence on which the Respondent intends to rely.
4.The proceeding is listed for a further one day hearing by video on 31 March 2025 at 10:00 am.
The Tribunal also issued a summons to the Applicant’s support coordinator, Lifeline Darling Downs and South West Queensland, directing the provision of:
All relevant documentation (including invoices) associated with the purchase of the below consumables provided to [the Applicant] [DOB]:
Support Claim Category Date provided Amount
Daily Adaptive Equipment Consumables 3 September 2018 $500.80
Daily Adaptive Equipment Consumables 3 September 2018 $520.20
The Tribunal reconvened the hearing on 31 March 2025 after the above order was complied with.
The Tribunal accepted into evidence various documents contained in the Respondent’s tender bundle, authorities tender bundle, supplementary tender bundle, further supplementary tender bundle, and various documents provided by the Applicant in addition to the material provided under summons.
LEGISLATIVE FRAMEWORK
The relevant legislation is found in the National Disability Insurance Scheme Act 2013 (Cth) (the Act).
Section 11 of the Act sets down the definitions relating to compensation. The term compensation is defined in subsection 11(1) as:
compensation means a payment (with or without admission of liability) in respect of:
(a)compensation or damages in respect of personal injury; or
(b)personal injury, under a scheme of insurance or compensation under a Commonwealth, State or Territory law, including a payment under a contract entered into under such a scheme; or
(c)personal injury, in settlement of a claim for damages or a claim under such an insurance scheme;
that is wholly or partly in respect of the cost of supports that may be provided to a participant (whether or not specifically identified as such). It does not matter whether the payment is made directly to the person who sustained the personal injury or to another person in respect of that person.
Chapter 5 of the Act deals with compensation payments. Relevant to this application, section 107 of the Act entitles the Agency to recover certain amounts from a compensation settlement:
(1) This section applies if:
(a)an amount of compensation is fixed under a consent judgement or settlement in respect of a personal injury that has caused, to any extent, a participant’s impairment (whether or not the participant was a participant at the time of the injury); and
(b)before the day of the consent judgement or settlement, NDIS amounts (the past NDIS amounts) had been paid in respect of supports in relation to the participants impairment.
(2) An amount (the recoverable amount) is payable by the participant to the Agency. The recoverable amount is an amount equal to:
(a)Unless subsection (4) applies – the sum of the past NDIS amounts, reduced as mentioned in subsection (3) (if applicable); or
(b)If subsection (4) applies – the amount worked out in accordance with that subsection.
…
Section 9 of the Act defines a NDIS amount as an amount paid under the scheme in respect of supports (other than general supports) funded under a participant’s plan.
Section 108 of the Act states that amount payable under section 107 is a debt due by the person to the Agency.
Section 116 of the Act permits the CEO to disregard certain payments:
For the purposes of this Chapter, the CEO may treat the whole or part of a compensation payment as not having been fixed by a judgement (including a consent judgement) or settlement, if the CEO thinks it is appropriate to do so in the special circumstances of the case.
Subsection 209(1) of the Act permits the Minister to make rules prescribing certain matters. Subsection 35(1) of the Act provides that NDIS rules may make provision in connection with the funding or provision of reasonable and necessary supports or generally supports. Paragraphs 35(4)(a) and (b) of the Act states that the rules referred to in subsection 35(1) of the Act may relate to how to take into account lump sum compensation payments.
The rules relevant to this application are the National Disability Insurance Scheme (Supports for Participants – Accounting for Compensation) Rules 2013 (Cth) (the Rules).
An Operational Guideline is government policy which must be considered unless there are cogent reasons not to do so.[12]
[12] Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179. Further, In the recent case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.
The Compensation Operational Guideline – Special Circumstances (the Guideline) outlines factors to be considered and potentially inapplicable considerations when assessing special circumstances:
13.3.1 Potential factors to be considered when assessing special circumstances in the context of a compensation reduction amount
The NDIA may consider a range of factors when determining whether to ignore whole or part of a CRA, including but not limited to:
·Financial hardship;
·Fraud/theft;
·The circumstances of the compensable event;
·The participant’s health;
·Administrative error by the NDIA;
·Incorrect or insufficient legal advice;
The existence of any of the above potentially relevant factors does not mean it will be appropriate for the NDIA to ignore the CRA in whole or in part.
Each case will be assessed on its own merits, taking into account all of the circumstances of the case.
13.3.2 Potentially inapplicable considerations
Whilst the NDIA will consider the whole of a participant’s circumstances when determining whether to exercise its discretion under rule 3.10 of the Compensation Rules, the following factors, may not be ‘special circumstances’:
The participant’s disability
As the NDIS is a social insurance scheme, which provides funding for supports and services to participants with permanent and significant disability, the existence of a significant and permanent disability in the context of the NDIS may not, in itself, amount to a special circumstance.
The risks of litigation
Settlement of a compensation claim for a lower amount due to the risks of litigating the case, due to difficulties of proof or other weaknesses in the case, is not unusual or uncommon (see Donald; Secretary, Department of Employment and Workplace Relations [2006] AATA 920).
ISSUES
The issues requiring determination are whether:
a) the calculation of the recoverable amount was correct; and
b) all or part of the recoverable amount should be reduced in the special circumstances of the case.
CALCULATION OF THE RECOVERABLE AMOUNT
It is not in contention, and I so find, that the Applicant received compensation by way of settlement in respect of personal injuries that caused her impairment that gave rise to her being granted access to the scheme. Paragraph 107(1)(a) of the Act is satisfied.
It is also not in dispute that before the day of settlement NDIS amounts, as defined in section 9 of the Act, were paid in respect of supports in relation to the Applicant’s impairments. It follows that paragraph 107(1)(b) of the Act is satisfied.
There is no evidence before me to suggest that either subsections 107(3) or 107(4) are applicable. Therefore, subsection 107(2) of the Act states that the recoverable amount payable by the Applicant is equal to the sum of past NDIS amounts.
As already outlined, one of the issue requiring determination is the quantum of the NDIS amounts.
The Respondent contends that the recoverable amount has been correctly calculated, based on 178 transactions paid to the Applicant between 19 December 2017 to 6 November 2023.[13]
[13] Summarised at S1 and R4.
The Applicant submits that the recoverable amount is incorrect.[14] The Respondent summarised the Applicant’s contentions, being that the supports provided were not fit for purpose, that certain supports had not been provided, she did not consent to the provision of some of the supports and overall, the funding for reasonable and necessary supports was grossly insufficient given her needs.[15]
[14] A26, A30, A32, A34.
[15] S1.
In particular, the Applicant submits that she should not be liable to repay the following amounts:
a)funding for transport in the amount of $15,417.94;
b)funding for plan management in the amount of $1,217.44;
c)funding for assessment and therapy in the amount of $2,106.84;
d)funding for assistance with self-care activities in the amount of $231.50;
e)funding for daily adaptive equipment in the amount of $1,021; and
f)funding for assistance technology in the amount of $4,277.
I shall deal with the above categories a) to c) first.
By close reading of the Applicant’s written submissions and after having the benefit of her oral submissions and testimony I understand that she does not dispute the Agency’s calculation of the costs incurred for transport, plan management and for therapy nor that she received these supports. Rather, she is of the view that the supports provided were either inadequate,[16] substandard[17] or she refused to provide approval to meet the costs of services received.[18] The Applicant submits that therefore these costs should not form part of the recoverable amount.
[16] A5, A17, A27 to A29.
[17] A6, A14, A16, A18.
[18] A13, A14, A19, A21, A27.
I have carefully checking I have not identified any legislative provision, legislative instrument or policy that would permit me to exclude from the sum of past NDIS amounts supports that did not meet the Applicant’s standards, expectations or approval[19] but that were nevertheless provided and paid for under the scheme during the applicable period.
[19] A8, A10 and A28.
It follows that the past NDIS amounts funded under the Applicant’s plan in respect of transport, plan management, assistance with self-care activities and funding for assessment and therapy totalling $18,970.72 were correctly included in the calculation of the recoverable amount pursuant to paragraph 107(2)(a) of the Act.
I next considered category d) and e), being the funding for daily adaptive equipment in the amount of $1,021 and the sum of $231.50 in respect to assistance with self-care activities.
At the first day of hearing the Applicant submitted that she had no idea what the daily adaptive equipment funding was used for. The Applicant explained that without any knowledge of what these items were, she could not be assured of the veracity of the claim that she had received adaptive equipment in this amount.
The Respondent submitted that the amount of $231.50 in respect to assistance with self-care activities reflected the cost of providing cleaning services, funded because of the Applicant’s compensable impairment.[20] The Applicant submitted that the cleaning services she had received were substandard and therefore she should not be required to refund this amount.
[20] S1.
In response to the summons issued on the first day of hearing, the Applicant’s support coordinator provided various documents including evidence of payment for consumables in the amount of $520.20 and $500.80.[21] A review Payment Request indicates that a total of $1,021 was paid to the Applicant, with the note of “wheelchair & acc”.[22] There was also reference to consumables, being a backrest, a mattress protector and two “reachers” totalling $152.50.[23]
[21] ST21.
[22] ST21, folio 980.
[23] ST21, folio 972.
Having the benefit of the Respondent’s updated Statement of Facts, Issues and Contentions dated 18 March 2025,[24] the AAT decision dated 24 January 2019,[25] and evidence of correspondence between the NDIA and the support coordinator I find that the Applicant was paid $1,252.50 directly in her bank account ending in #5711 in respect of relocation costs totalling $1,100 and $152.50 in respect of the backrest, mattress protection and reachers. Obviously the descriptors provided by the support coordinator was incorrect; funding in the amount of $1,021 was not in fact for daily adaptive equipment and the funding of $231.50 was not in respect to assistance with self-care activities or cleaning.
[24] ST20.
[25] T18.
In referring to these items as consumables and daily activities, the support coordinator and the Respondent caused understandable confusion and distress to the Applicant. It is evident that it was not unreasonable that she questioned these payments and only proper that the Agency and the support coordinator were required to provide further particulars.
It follows that the combined amounts of $1,021 and $231.50 do represent past NDIS amounts paid to the Applicant in respect to non-general supports and so forms part of the total recoverable amount pursuant to paragraph 107(2)(a) of the Act.
I finally considered category f), being the funding of the medical bed, foam mattress, over bed pole and seat cushions which I will collectively refer to as the MedTech items.
It is important to set out the relevant history in respect to the MedTech items before determining whether the funding expended on those items represents past NDIS amounts and so form part of the total recoverable amount.
I find that on 6 September 2017 the Applicant sought and received a quote from MedTech Mobility Equipment (MedTech) for an electric bed, mattress and over bed pole in the amount of $3,250.[26] On 10 December 2017 she emailed the Agency requesting the provision of a medical bed and wheelchair cushions.[27] In her application to the AAT dated 12 January 2018[28] and in correspondence to the Agency on 1 June 2018[29] the Applicant reiterated her need for funding for these items.
[26] STX1.
[27] T4.
[28] T5.
[29] T9.
In its Statement of Facts, Issues and Contentions dated 14 December 2018 the Respondent conceded that the Applicant’s plan should include the provision of the MedTech items.[30] In her response to the Respondents Statement of Issues, Facts and Contentions the Applicant again confirmed that she required the MedTech items.[31]
[30] T14.
[31] T16.
I find that the terms of an agreement dated 24 January 2019 provided that the Applicant would receive additional supports including the provision of a medical bed, mattress and over bed pole in the amount of $3,250 and two cushions in the amount of $602.[32]
[32] T17.
The Applicant’s plan commencing on 8 February 2019 stated that it included capital supports for a seat cushion, power bed, mattress but that a quote was required before the funds could be expended.[33] Interaction notes of the same date also outlined the requirement for updated quotes and that the cost of an over bed pole cost was to be included.[34] I infer that a new quote was required given the passage of time between the initial quote in September 2017 and the funding approval.
[33] ST14.
[34] STX4.
The quotation provided by MedTech dated 12 February 2019 indicates that total cost for the bed, mattress, pole and delivery was $3,665.[35] A cushion was also quoted for in the amount of $612.[36]
[35] STX5.
[36] R4, noting that the name of the business is recorded as Think Mobility; a Google search indicates that Think Mobility and MedTech are listed as having the same address is Toowoomba.
On 13 February 2019 the NDIS advised MedTech that the quote for the MedTech items was approved. It was requested that MedTech contact the Applicant directly to organise delivery.[37] A service booking for delivery was organised on the same day.[38]
[37] STX6.
[38] R8.
On 27 February 2019 MedTech contacted the NDIS stating that they were having difficulties contacting the Applicant to organise delivery. MedTech advised that they store the items until the Applicant contacts to organise delivery.[39] The NDIS contacted the Applicant’s (then) support coordinator to request assistance in organising delivery.[40]
[39] STX7.
[40] STX8.
On 23 April 2019 MedTech contacted the NDIS again requesting assistance to facilitate delivery, advising that the funds had not yet been drawn down. The NDIS advised that MedTech should follow their internal processes for orders where delivery was refused and that if the equipment could be returned to stock and sold then it should not draw down on the funds. It was agreed that MedTech would make a final attempt to deliver the bed.[41]
[41] STX9.
MedTech contacted NDIS again on 10 May 2019 requesting assistance, as despite attempts to contact the Applicant to organise delivery they received no response.[42] On 21 May 2019 the NDIS contacted MedTech and advised that it was reasonable to draw down on funds for the MedTech items whilst attempting to arrange delivery. MedTech was advised to write to the Applicant to attempt to complete delivery and that the approval process was progressed in the current plan to enable payment.[43]
[42] STX9.
[43] STX11.
On 22 May 2019 the support coordinator contacted the NDIS to advise that MedTech refused to deliver and install the items without the support coordinator being present due to “significant level of aggression and threats” they had apparently received from the Applicant. MedTech apparently also asked for the Applicant’s home to be cleaned and cleared to allow the installation of the MedTech items. However, the support coordinator was hindered from organising cleaners, as cleaners had previously refused to attend the Applicant’s home due to her apparently being verbally abuse, including using racist slurs.[44] The delivery of the MedTech items was further was complicated by the fact that the Applicant had advised the support coordinator that she had terminated the support coordination agreement. Without authority to act on her behalf, they were unable to make any attempt to support delivery. The support coordinator expressed concern for the welfare of the Applicant should she not have the benefit of the MedTech items.[45]
[44] STX10.
[45] STX10.
It is apparent that MedTech drew down on the funding for the MedTech items on 23 May 2019.[46]
[46] R4.
On 15 August 2019 a Lime Therapy worker advised the NDIS that it had contacted the Applicant to attempt to negotiate the delivery of the bed. It was noted that the Applicant was abusive and refused to discuss the delivery.[47]
[47] STX12.
In an email dated 27 December 2019 the Applicant wrote to the NDIS seeking delivery of the medical bed, stating that she should have been provided it two years previously.[48]
[48] STX14.
In emails dated 17 January and 18 February 2020 the Agency wrote to the Applicant offering to have her home cleaned so the MedTech equipment could be delivered and installed, as well as an assessment by an occupational therapist or physiotherapist to ensure that the cushions were still suitable.[49] The Applicant wrote to the NDIS on 24 February 2020 asking why the MedTech items had never been supplied and stating that a failure to provide her with home assistance and assistive technology was evidence of NDIS neglect.[50] On the same day the Applicant wrote to Senator Siewert seeking provision of the MedTech items.[51]
[49] STX15.
[50] STX16.
[51] T29.
The NDIS wrote to the Applicant on 12 March 2020 stating that the MedTech items were no longer available for delivery. Instead, she would need to discuss with her support coordinator a new assessment and quote.[52]
[52] STX16.
On 23 July 2020 the NDIS contacted the Applicant by telephone who advised that she would like the MedTech items included in her plan.[53]
[53] STX17.
The next contact regarding the MedTech items was 3 October 2023, where the Applicant stated that she would not sign a new NDIS plan because she had still not been provided with the MedTech items.[54]
[54] STX20.
At hearing the Applicant submitted that it was negligent on the part of the NDIS to insist that she accept delivery of the MedTech items without an assessment by a physiotherapist. She rejects the suggestion that the failure to deliver the MedTech items was her fault. She asked how could she accept delivery of the items if she did not know whether they were suitable. She recalls prompting the support coordinator to provide a physiotherapy assessment before ordering the medical bed. When it was put to her by the Respondent that she in fact rejected the offer of a physiotherapy assessment the Applicant replied that she could not recall this, but if she did reject the offer, she would have done so on valid grounds. She later stated that she was advised by her support coordinator to trial the bed before purchasing it.
On the second day of hearing the Applicant alleged that the wrong size bed was ordered; she did not elaborate further. She went on to state that she probably does not need provision of the medical bed as she is not as “unsteady” as she once was and she has managed a “work around”. Having said that, she insisted that she still needs a lot of equipment, though she did not specify what equipment was required.
I am satisfied that the Applicant sought provision of MedTech items,[55] these items were approved in her Statement of Participant Supports and that she but did not accept delivery of these items despite significant attempts made by the supplier, NDIS and her (then) support coordinator.
[55] A11, A21, A26.
I am satisfied that the MedTech items totalled $4,277 and that on 21 May 2019 the Agency advised MedTech that they could draw down funding for the equipment that they had secured and made available to deliver to the Applicant.[56] I find that the NDIS paid MedTech for the MedTech items on 23 May 2019.[57]
[56] STX11.
[57] T44.
Reasonable minds may differ as to whether it was appropriate that the Agency approve payment of the MedTech items when delivery had not taken place. The Applicant is certainly convinced that she had ample reasons for refusing to accept delivery.
At hearing I expressed my concern about finding that the MedTech items were included in the quantum of the recoverable amount in a context where I was not provided with evidence to confirm whether payment was actually made or whether there were any steps taken to have the payment refunded given that the Applicant refused to accept delivery.
With now having the benefit of the additional evidence it is apparent that the NDIS accepted that MedTech had made concerted attempts to deliver the equipment and the NDIS approved payment on the basis that attempts would continue to be made to deliver the items. I am satisfied that attempts to deliver the MedTech items did continue and that the Applicant, for the reasons she provided at hearing and in her written submissions, refused to accept delivery. It is also apparent that the Agency has informed the Applicant that she can seek an assessment to determine whether the approved items still meet her needs, and if so, she can provide an updated quote to ensure that there were no changes in her support needs.[58] I infer from this that should the Applicant undergo an assessment as to the current suitability of these items and provide an updated quote the MedTech items would be provided to her.
[58] STX16.
The question then is who must bear the cost of the MedTech items – the Applicant or the Agency. The Applicant is adamant that it should not be her as she never had the benefit of the items. The Respondent submits that it should not bear the cost in a context where the Applicant refused delivery.
However valid each party’s position, the fact remains that the Agency paid $4,277 in respect of non-general supports funded under the Applicant’s plan, so meeting the definition of a NDIS amounts in section 9 of the Act. Paragraph 107(2)(a) of the Act dictates that the sum of past NDIS amounts is a recoverable amount where subsection 107(3) of the Act does not apply as is the case in this matter.
I conclude that the amount of $4,277 paid to MedTech was correctly included in the quantum of the recoverable amount payable by the Applicant to the Agency pursuant to section 107 of the Act.
It follows that the Agency correctly raised and recovered $35,500.64 from the compensation awarded to Applicant, representing payments by the Agency for non-general supports funded under the Applicant’s support plan during the relevant period.
SHOULD THE RECOVERABLE AMOUNT BE REDUCED?
It is not in dispute that the purpose of section 116 of the Act is to enable “a flexible response to the wide range of situations which could give rise to hardship or unfairness in the event of a rigid application…”.[59]
[59] SDSS v Hales (1989) FCR 162 at [82].
What constitutes special circumstances has been examined in analogous provisions in the context of the administration of social security law by the AAT, the Federal Court and the Full Federal Court.
In Re Beadle and Director-General of Social Security[60] the AAT stated that the phrase ‘special circumstances’ was:
…by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional…
[60] [1984] AATA 176 at [6].
The Full Federal Court held in Beadle v Director-General of Social Security[61] that the phrase:
…”special circumstances”, although lacking precision, is sufficiently understood in our view not to require judicial gloss.
…in this context must include events which would render the (strict application of the rule in question) unfair or inappropriate.[61] (1985) ALR 228 at [60].
The Full Federal Court again considered the term in Dranichnikov v Centrelink,[62] determining:
…There will be a requirement that the circumstances are such that takes the case out of the ordinary: Jess v Scott (1986) 12 FCR 187.
[62] [2003] FCAFC 133 at [66].
What is not required is that the person’s circumstances be unique, as long as they are not a common or universal characteristic: Re Randall and SDFHCSIA.[63]
[63] [2011] AATA 922 at [30].
In Angelakos v Secretary, Department of Employment and Workplace Relations[64] Besanko J stated:
… the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances. The danger is that the test will be overstated if the word ‘exceptional’ is emphasised. It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case. There is less risk of overstatement if the words ‘unusual’ or ‘uncommon’ are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case. It may not be easy to postulate the ordinary or usual case other than in quite general terms and, in doing so, close attention must be given to the particular statutory context.
[64] (2007) 100 ALD 9.
Furthermore, the provision is generally accepted to “…specifically enable the respondent, and on review the Tribunal, to ameliorate such unfairness or injustice when it appears by virtue of the strict application of the Act”.[65]
[65] Kirkbright & Secretary, Department of Family and Community Services [2000] FCA 1876 at [22].
In Re Krzywak and SDSS[66] the AAT identified factors relevant to the discretion as broadly including financial hardship, incorrect legal advice and ill health. In Re SDSS and Gibala[67] the AAT listed various factors against exercising the discretion, including the existence of considerable amount of invested capital, no pressing financial obligations and the intention to prevent double-dipping. The factors for exercising the discretion included the health of the applicant, whether disposal of assets had occurred and poor legal advice.
[66] [1988] AATA 270.
[67] [1989] AATA 387.
In ZZXMv CEO, National Disability Insurance Agency[68] Senior Member Bean’s consideration of what constitutes ‘special circumstances’ for the purposes of s 116 of the NDIS Act is also instructive:[69]
Although it is not possible to devise an exhaustive list, factors which may constitute or contribute to special circumstances include financial hardship, fraud, the circumstances of the compensable event, errors by others and incorrect or insufficient legal advice. It is also clear from the case law in the social security context that significant injustice or unfairness arising from the application of the statutory formula has been found to amount to a special circumstance…
[68] [2024] ARTA 24 (ZZXM).
[69] ZZXM at [21].
The Applicant submits that there are special circumstances in her particular case that warrant the exercise of the discretion in section 116 of the Act.
In essence she submits that the NDIS have been negligent, having endorsed fraudulent activities perpetrated by support coordinators by accepting its accounting of the expenditure of her NDIS funds during the relevant period. Her allegations regarding her failure to approve the payment of the NDIS payments that formed part of the past NDIS amount has already been canvassed above. She also alleges neglect of her health and wellbeing by the NDIS, resulting in two hospitalisations.
Further, she submits that the onus was on the Agency to provide quality care, service and equipment, including proper auditing of support coordinators given that 70% of all plans were managed by providers. She referred to Mr John Dardo, Deputy CEO of the Agency, who reported that 90% of plan managers had significant indicators of fraud. She submits that the Respondent knew that there was an exceedingly high probability that charges to her plan were bogus. She stated that there was an organised crime ring of plan managers and she is entitled to lodge a compensation claim against the Respondent because of this. She had tried to report her plan manager to the Quality and Safeguards Commission, but they refused to assist.
The Applicant went on to submit that the total compensation paid to her should be considered as not having been paid as the Respondent cannot substantiate the costs incurred to the proper accounting standards. A transaction list, without human intervention and scrutiny, cannot be relied upon to establish the recoverable amount. Instead, all source documents must be provided. In fact, under consumer law they are not entitled to the recovered amount. It was unlawfully taken from her.
Additionally, her funded supports did not even come close to what she should have been funded. The NDIS failed to provide for her and in doing so denied her health care which is a right enshrined in section 51 of the Australian Constitution. Her care was dangerously neglected by the NDIS; this is a special circumstance as the Respondent failed to show a level of service and provide her with a safe environment that would warrant payment of funds from her compensation.
In her response to the Respondents Statement of Facts, Issues and Contentions dated 4 February 2025 the Applicant stressed that the net compensation amount she received was $156,577.56. She submits that this is simply insufficient given her disability needs and life expectancy. She had initially sought compensation in the amount of $2,000,000, however had to settle for significantly less primarily because her lawyers were not prepared to risk litigation. She suggests that the neglectful provision of NDIS services and equipment may have reduced her chances for a larger settlement.
At hearing the Applicant declared that she is “happy to declare” that her financial circumstances are “fine”. She explained that following receipt of the compensation funds she purchased two properties, renovated them and now lives in one and rents out the other for $150 per week. She stressed that she never sought NDIS funding for home renovations; rather she self-funded this cost to ensure that her home could meet her disability-related needs. She also owns a block of land valued at about $10,000 and about $20,000 remaining in savings. She is in receipt of disability support pension at the full rate. She has no other income or assets. Her only debt is for solar hearing, which she is repaying by instalment. She described her current health a “pretty good”.
The Applicant has no dependents and lives alone. I accept that prior to her compensable injury she worked as a bookkeeper on a part-time basis and was also studying a Diploma of Accounting. She was living in a rural location and so there were limited income-producing opportunities. I accept the Applicant’s evidence that she is not currently engaged in paid work.
I next considered the inclusion of legal costs in her settlement. The Applicant explained at hearing that the payment agreement with her lawyers was 50% of all compensation received. I accept the Applicant’s submissions that her legal team waived their right to 50% of the recovered funds, apparently because they were so appalled by her treatment. It is also evident that her settlement did not include a portion for future earnings.
I find that a compensation reduction amount of about $26,60.38 will apply for a period of about 14.5 years.[70] The most recent NDIS plan is evidence covers the period 8 December 2023 to 7 December 2024 and is in the amount of $131,387.92.[71]
[70] T62.
[71] T73.
The Respondent suggests that the Applicant failed to take appropriate steps to rectify any issues she was having in relation to the provision of supports and that any hardship arising from her failure to accept delivery of the MedTech items was due to her own actions and therefore are not special or out of the ordinary.
I accept without hesitation the Applicant’s testimony that she was dissatisfied with many of the NDIS supports and the support coordination she received during the relevant period. It is apparent that there was miscommunication between the Applicant and the Respondent which may in part explain the Applicant’s frustration and distrust of the Agency.[72] It is trite to say that miscommunications occur between government bodies and members of the public and so I am not persuaded that miscommunication between the Agency and participants is uncommon or unusual. In any event, there is nothing to suggest that the Agency acted improperly. I am not persuaded that this aspect of the Applicant’s circumstances distinguish her case from the usual case.
[72] By way of example, the Agency advised the Applicant that she could appeal to the AAT if dissatisfied with an original decision made by the Agency at T66.
I also accept that there are NDIS service providers and support coordinators who do not act in the best interest of participants or who engage in fraudulent activity. In this case the Applicant specifically alleges that the transactions that the Respondent relies upon are fraudulent. This is a serious allegation and one that is not established on the material before me. Mere allegations, without any probative evidence in support, are not sufficient to persuade me that the recoverable amount did not represent funding provided by the NDIS in support of the Applicant during the relevant period. I conclude that allegations of fraud, without more, do not contribute to, or constitute, a finding of special circumstances in this case.
I am persuaded that the NDIS transactions in evidence accurately represent funds expended for the benefit of the Applicant. It is my view that any hardship that has arisen from the non-provision of the MedTech items is of the Applicant’s own making. I do not find this itself, or in combination with other factors, constitutes special circumstances for the purposes of the Act.
The Applicant submits that she is financially secure. It is apparent that she carefully considered the expenditure of her compensation funds and was prudent in her investments. I find accordingly. I also accept the Applicant’s testimony that her health is satisfactory.
There is no evidence before me to support a finding that the operation of the compensation provisions in the Act has led or will lead to an unfair or unjust outcome in the Applicant’s case.
Overall, I am not satisfied that when considered individually or in combination the Applicant’s circumstances are sufficiently special or out of the ordinary to warrant disregarding all or part of the compensation payment pursuant to section 116 of the Act.
This means that the decision under review is correct.
DECISION
The decision under review is affirmed.
Dates of hearing: 10 February and 31 March 2025 Solicitor for the Applicant:
Self-represented
Solicitor for the Respondent:
Counsel for the Respondent:
Ms Vanessa Perkins
Mr Paul d’Assumpcao
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