Mohebati-Arani and National Disability Insurance Agency

Mohebati-Arani and National Disability Insurance Agency [2023] AATA 2399 (7 August 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/8878
Re:Omid Mohebati-Arani
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:The Honourable Pru Goward AO, Senior Member
Date:7 August 2023
Place:Sydney

The Tribunal affirms the decision under review dated 25 October 2022, pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
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The Honourable Pru Goward AO, Senior Member
CATCHWORDS
Self-managed plan – NDIA-managed plan – choice and control - Applicant at unreasonable risk – vulnerable person – role of family –– mismanagement of funds – decision affirmed
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth)
National Disability insurance Scheme (Plan Management) Rules 2013 (Cth)
SECONDARY MATERIALS
The NDIS Operational Guidelines - Your Plan
REASONS FOR DECISION
The Honourable Pru Goward AO, Senior Member
7 August 2023
INTRODUCTION

The Applicant, Mr Omid Mohebati-Arani, is a fifty-year-old man who suffered a traumatic brain injury (TBI) in 1995 following a car accident. On this basis, he was granted access to the National Disability Insurance Scheme (‘the Scheme’) on 27 March 2018, having satisfied the disability requirements within s 24 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act).
On 15 July 2022, the Respondent approved the Applicant’s statement of participant supports (SOPS) under ss 33(2) of the Act.
On 22 August 2022, the Applicant sought to have his SOPS varied, specifically, to vary the management of his funding from NDIA-managed to self-managed.
On 9 September 2022, the Respondent made a decision not to vary the Applicant’s SOPS as requested, on the basis that self-management or plan-management would pose a risk to the National Disability Insurance Scheme’s integrity and sustainability.
On 16 September 2022, the Applicant sought review of that decision and on 25 October 2022, the Respondent then affirmed the decision not to vary the Applicant’s SOPS on the basis that self-management of funds would pose an unreasonable risk to the Applicant. This decision of 25 October 2022 is the internal review decision.
The Applicant lodged an application with the Administrative Appeals Tribunal (the Tribunal) for review of the internal review decision on 26 October 2022.
Noting the contents of emails purporting to request additional supports, and after two directions hearings, I was satisfied that the only issue which the Tribunal was to review was NDIA plan management.
Having reviewed the written evidence of the parties (particularly the evidence provided by the Applicant) and following discussions with the Applicant during the two directions hearings held, I was satisfied that no formal hearing was necessary. The Tribunal could adequately review the reviewable decision of 25 October 2022 by examining the extensive written material available. Further, it was clear to me from discussions with the Applicant that his significant brain injury had resulted in impairments which would severely limit his capacity to represent himself effectively at such a hearing. The Applicant had no advocate available who might have been able to meet this limitation.
BACKGROUND
The Applicant suffered traumatic brain injury resulting from a car accident as a young man and lives with significant cognitive and neurophysiological impairments. He is married with two sons and his wife works full-time. However, the Applicant has not been in paid work for several years.
Furthermore, the Applicant drives a car, is able to read and write (although with some physical difficulty) and is not, from the evidence available, under guardianship or control orders, including financial control orders, of any kind.
Since accessing the Scheme in 2018, the Applicant has had seven NDIA plans, with SOPS of significant financial value. Consistent with the principles underlying the Act, the Applicant’s first (twelve- month) plan was self-managed. The funds provided in that plan were exhausted within three months and from then, and after difficulties the Applicant encountered with plan-management, including fraudulent activity by a plan-manager, the Respondent has required that the Applicant’s plan be agency-managed.
THE ISSUE
The Tribunal must determine whether the Applicant can safely manage his NDIA funding in his own best interests, without undue risk to himself.
Legislative Provisions
The Act sets out a framework of objectives and principles for the granting of access and funding of supports.
The objectives are set out in section 3 and relevantly include to:
(c)support the independence and social and economic participation of people with disability; and
(d)provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme; and
(e)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports;
The general principles guiding actions under this Act are set out in section 4 and relevantly include:
(1)People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
…
(4)People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5)People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
…
(7)People with disability have the same right as other members of Australian society to pursue any grievance.
(8)People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives.
(9)People with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.
The matters included in a participant’s plan are set out in section 33; relevantly:
(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:
(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.
The Respondent must comply with an approved SOPS (section 39) and a participant (or a person on behalf of a participant) who receives funding under the NDIS must spend money in accordance with the person's plan (section 46).
Provisions for the management of funding for supports in a plan are set out in Chapter 3 of the Act. Sections 43 and 44 are in the following relevant terms:
S 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 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.
S 44 Circumstances in which persons must not manage funding
(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.
..:
(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.
…
(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;
(aa) a registered plan management provider managing the funding for supports under the plan;
(b) a plan nominee managing the funding for supports under the plan.
Rule 3.5 of the National Disability Insurance Scheme (Plan Management) Rules 2013 (Plan Management Rules) states that a participant will not be able to manage the funding for supports under their plan if the CEO is satisfied this would present an unreasonable risk to the participant. Rule 3.8 sets out the relevant matters:
(a) whether material harm, including material financial harm, to the participant could result if the participant were to manage the funding for supports to the extent proposed, taking into account the nature of the supports identified in the plan;
(b) the vulnerability of the participant to:
(i) physical, mental or financial harm; or
(ii) exploitation; or
(iii) undue influence,
(c) the ability of the participant to make decisions;
(d) the capacity of the participant to manage finances;
(e) whether a court or a tribunal has made an order under Commonwealth, State or Territory law under which the participant's property (including finances) or affairs are to be managed, wholly or partly, by another person;
(f) whether, and the extent to which, any risks could be mitigated by;
(i) the participant's informal support network; or
(ii) any safeguards or strategies the Agency could put in place through the participant's plan.
3.9 The safeguards referred to in paragraph 3.8(f)(ii) could include, for example:
(a) setting a shorter period before the participant's plan is reviewed; or
(b) setting out regular contacts between the Agency and the participant; or
(c) providing funding for supports (for example, budgeting training) that would assist the participant to manage their own plan.
19. The NDIS Operational Guidelines—Your Plan1 provides information on principles and general matters relating to participant plans, including the management of funds. Those guidelines can be considered by the Tribunal unless there are reasons not to, such as inconsistency with legislation. Key points include:
3.8 Otherwise, the CEO is to have regard to the following:
(a) whether material harm, including material financial harm, to the participant could result if the participant were to manage the funding for supports to the extent proposed, taking into account the nature of the supports identified in the plan;
(b) the vulnerability of the participant to:
(i) physical, mental or financial harm; or
(ii) exploitation; or
(iii) undue influence,
(c) the ability of the participant to make decisions;
(d) the capacity of the participant to manage finances;
(e) whether a court or a tribunal has made an order under Commonwealth, State or Territory law under which the participant's property (including finances) or affairs are to be managed, wholly or partly, by another person;
(f) whether, and the extent to which, any risks could be mitigated by;
(i) the participant's informal support network; or
(ii) any safeguards or strategies the Agency could put in place through the participant's plan.
3.9 The safeguards referred to in paragraph 3.8(f)(ii) could include, for example:
(a) setting a shorter period before the participant's plan is reviewed; or
(b) setting out regular contacts between the Agency and the participant; or
(c) providing funding for supports (for example, budgeting training) that would assist the participant to manage their own plan.
·     if funding for supports is NDIA-managed, a person can only use NDIS registered providers for those supports; NDIS registered providers meet strict conditions for the quality and safety of their services; if you self-manage your funding, you need to keep receipts for your purchases for 5 years. You'll also need to be able to show how you've used your funding if we ask you;
·     if you spend your funding on supports that are not set out in your plan, you will owe the NDIA a debt;
·     NDIS funding is for disability-related supports only. It is not intended to be a source of general income, or to be used for day-to-day living costs like rent.
CONTENTIONS
The Respondent contends that the Applicant’s plan should be NDIA-managed because his self-management represents an unreasonable risk for the purposes of 44(2) (a) of the Act for the following reasons:
·Material harm, including material financial harm, to the Applicant could result if he were to manage the funding of supports
·The Applicant is vulnerable to financial harm or exploitation
·The Applicant lacks the ability to make sound financial decisions in the context of his NDIS plan
·The Applicant lacks the relevant capacity to manage finances
·The Applicant has demonstrated that reasonable safeguards and strategies imposed by the Agency were not effective in mitigating these risks.
The Respondent further contends that plan management of funds by a plan management provider is not appropriate, based on the Applicant’s previous experience which has demonstrated he does not understand how plan management is to be applied and there is historical evidence of his exploitation by plan managers.
The Applicant contends that he will get better value for money by his selection of support providers than the Agency, because the Agency only engages accredited providers. The Applicant, on the other hand, would use non-accredited providers, who are paid at lower rates than those for accredited providers, thus ensuring he procures additional services and provides better value for money. He does not believe his funding will be abused by providers because he will be in control of it.
The Applicant has further contended that past plan managers have defrauded him, but this has been misinterpreted by the Respondent as his mismanagement of funding. He also contends that misunderstandings, such as the Agency believing his wife was being paid to provide services, have also unfairly contributed to the Agency’s lack of confidence in his ability to self-manage.
EVIDENCE
The evidence provided by several expert clinical witnesses describes the ongoing tragedy of traumatic brain injury. It confirms a very great loss of cognitive ability by the Applicant, who can only be said to be functioning at a very basic level and with little or no insight into the extent of his limitations, although he appears to appreciate, they make it difficult for his wife and sons. The Falcon Report, provided by neuropsychologist Dr Alex Falcon, concluded that:
I do not believe that Mr Mohebati- Arani [the Applicant] possesses the required attentional, working memory, processing speed, encoding/retention and higher level executive congnitve functions to read and comprehend complex documents such as contracts etc, and thoroughly evaluate and retain the details of such information.
There is further evidence, provided to the Falcon Report by the Applicant’s father, that the Applicant has in the past has made irrational and impulsive financial decisions, for which the father has taken responsibility on occasion:
Based on current assessment findings … and also his previous reported poor decisions resulting in multiple losses involving significant funds, I would not consider that [the Applicant] contains the cognitive ability to make decisions regarding his assets. I would be of the opinion that he would benefit from the appointment of a financial manager (perhaps his Father) to assist in his managing of his more complex affairs.
It was also clear during the directions hearings that the Applicant struggled to follow the discussions.
The option of having a family member support the Applicant has not been proposed by the Applicant or Respondent and, since the parties agree that plan management is not suitable for the Applicant, this is not in contention and takes no further part in this decision.
I do not propose to interrogate the expert evidence provided; it consistently suggests the Applicant would be incapable of managing the financial decisions associated with self-management of his plan, and the Applicant has provided no evidence challenging this. Accordingly, the Tribunal accepts the opinions of the clinical experts.
The Tribunal further accepts the Respondent’s evidence that the funds in his first plan were expended in three months under self-management and that he had spent money on services which were not stipulated in his SOPS. The Respondent’s submissions also referenced other occasions where the Applicant had mismanaged his finances, such as:
·the Applicant had 3 credit cards with limits of $20,000, $30,000 and $5,000 all of which had been used to their maximum limits;
·the Applicant impulsively invested $200,000 in shares after receiving some advice, which was subsequently lost. He again later impulsively invested another $150,000 in shares which were again lost;
·the Applicant attended the Auction of the house in Lindfield that he later purchased— while other bidders were bidding in increments between $1000–$2000, the Applicant was bidding in increments of between $10,000–$30,000;
·the Applicant successfully bid on the house at Lindfield without having initially consulted the bank as to whether he would be able to get a loan for the required amount of some $2,000,000 that he required to complete the purchase successfully;
·the Applicant had not contemplated how the home loan would be repaid, given his financial position. This resulted in the Applicant's father personally financing the loan repayments on the Applicant's behalf, which equated to $11,000 per month;
the Applicant used $300,000 of his funds for a Development Application approval which did not make financial sense.
The Applicant, having been provided with the Respondent’s submissions, did not dispute these instances of mismanagement.
Evidence was also provided that the Applicant did not accept that the funding provided by the Respondent was only for those reasonable and necessary supports agreed to by the Respondent. This contravenes s 46 of the Act and also potentially affects the Scheme’s integrity and sustainability.

Furthermore, evidence was provided by the Respondent that the Applicant has demonstrated that reasonable safeguards and strategies imposed by the Agency have not been effective in mitigating the risks of material financial harm arising from his inability to manage his finances and his vulnerabilities. This evidence took the form of accounts from Respondent staff about conversations with the Applicant where he appeared not to understand that he should only spend Agency funds on approved supports and not refuse to pay for services which had been provided. The evidence of Dr Falcon also confirmed that the Applicant was resistant to advice and in any case, would struggle to apply it.
The Respondent provided evidence that the Applicant has previously been funded for training in budgeting and plan management (2 hours/month), but no evidence has been provided to demonstrate that the Applicant ever accessed this support. The Applicant has also been funded for Support Coordination within all participant plans to support his independence and understanding of his NDIS plan. However, the available evidence demonstrates an unwillingness on his part to accept such support and engage with services.
In the absence of any other evidence provided by the Applicant which might challenge the evidence provided by the Respondent, the Tribunal accepts the Respondent’s evidence of the Applicant’s vulnerability to financial harm.
CONSIDERATIONS
The Tribunal appreciates the significance of those many references in the Act to the importance of participants being able to independently live their lives, exercising choice and control. As s 4 of the Act describes it:
to be able to determine their own best interests, including the right to exercise choice and control.
The Respondent’s submissions also reflect upon the importance of choice and control and acknowledge the Applicant's claim that the current plan management (NDIA-managed) does not allow him to access the supports and services of non-NDIS registered providers; specifically, his Podiatrist, Occupational Therapist and Exercise Physiologist. The Respondent’s submissions rely upon the evidence of Physiotherapist Navid Noory of Allied Health 2U (dated 21 August 2019) as well as the evidence of Senior Neurological Physiotherapist Katharina Brassington of Advance Rehab Centre (dated 5 January 2019) both of whom previously assessed and provided physiotherapy support to the Applicant. Both Allied Health 2U and Advance Rehab Centre are NDIS registered providers. The Respondent submits that the Applicant could therefore continue to access their services through an NDIS-managed plan.
The Applicant considers he is being denied choice and control and relied upon the evidence of Physiotherapist Vincent Cagliastro dated 15 February 2023, that the Chatswood clinic had been providing physiotherapy supports to the Applicant but was not a registered NDIS provider:
Omid is very familiar with our clinicians and staff and we are all well understand his needs to provide optimal care. Since NDIS required clinics to be formerly approved, we did not go through the process as all our clients were planned managed, therefore we are not a formal NDIS provider as per previous. We charge NDIS clients our normal rates ie being $85 for Physio, $72 for Podiatry and $75 for exercise physiology. Our rates are very competitive, and we do have a Clinic that meets the needs for disabled clients ie being on ground floor and having a disabled toilet. We would hope for optimal and consistent care of Omid moving forward he can continue to attend our clinic for all his allied health care needs.
The Respondent contended that since the Applicant had also received physiotherapy support from NDIS providers Noory and Brassington, this could be resumed. Further, that there is otherwise:
the real absence of evidence in the form of progress reports from allied health therapists to demonstrate continual access to non-NDIS registered providers which may support a claim that current plan management would deny the Applicant choice and control over providers.
The Tribunal, having taken account of all the evidence concerning the Applicant’s capacity for choice and control, accept the evidence of the Respondent, and particularly notes the absence of significant evidence which would support any alternative finding of fact. The Tribunal appreciates that the Applicant’s cognitive impairments would have made it difficult for him to identify and provide the evidence required to demonstrate any limitation on his choice and control, but that of itself is demonstration of the Applicant’s significant limitations which would undoubtedly also be reflected in his capacity for effective financial and administrative control of his SOPS. The Tribunal accordingly finds that the Applicants capacity for choice and control is not significantly limited by an Agency-managed plan.
Based on the evidence provided, the Tribunal finds that the Applicant suffers significant cognitive impairment which severely limit his ability to manage his finances, make complex financial decisions and comply with the financial accountability requirements of the Act. The fact that the Applicant is not subject to some form of guardianship, as highlighted in the Falcon Report, underscores the Applicant’s vulnerability and the very real risks he would face if he were to self-manage his plan.
CONCLUSION
The Tribunal concludes that if the Applicant were to self-manage his SOPS, he would be at significant risk of harm, and thus meets the requirements of s 44 (2) (a) of the Act, which stipulates that a participant must not manage funding if the management would present an unreasonable risk to the participant. Equally, such management is also likely to threaten the financial sustainability of the Scheme, potentially in breach of the objects of the Act, set out in s 3 of the Act.
The Tribunal also concludes that the Applicant’s significant impairments prevent him from meeting the requirements under the Rules for self-management of his SOPS and that, conversely, the criteria for requiring the Applicant’s SOPS to be Agency-managed are met in this case.
DECISION
The Tribunal affirms the decision under review dated 25 October 2022, pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Goward

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Associate
Dated: 7 August 2023

[2023] AATA 2399

7 August 2023

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