Usher and National Disability Insurance Agency (NDIS) - [2025] ARTA 592

Usher and National Disability Insurance Agency (NDIS) [2025] ARTA 592 (15 April 2025)
Applicant:Georgia Usher
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2023/0563

Tribunal:Senior Member C Shepherd
Place:Adelaide
Date:15 April 2025

Decision:The Tribunal affirms the decision under review.

......................[SGND].............................................
Senior Member C Shepherd
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – past NDIS amounts recoverable from lump sum compensation received by participant – special circumstances – whether special circumstances exist – decision under review affirmed.
Legislation
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants - Accounting for Compensation) Rules 2013
Secondary material
Compensation Operational Guideline – Special Circumstances
Cases
ZZXM and CEO, National Disability Insurance Agency [2024] ARTA 24
Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179
Beadle and Director-General of Social Security [1984] AATA 176
Kline v Official Secretary to the Governor-General (2013) 249 CLR 645
Carr v Western Australia (2007) 232 CLR 138
Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 87 ALJR 1009
Statement of Reasons
INTRODUCTION

This application concerns a request by the Applicant to reduce a compensation payment due to special circumstances, and to reduce the amount recoverable by the National Disability Insurance Agency (Agency) for supports paid in respect of the Applicant.
BACKGROUND
On 6 November 2015, the Applicant was injured in a motor vehicle accident (the compensable event).
In 2018, the Applicant and her husband commenced proceedings against the driver (Defendant) who was insured by the Motor Accident Commission (Berkshire Hathaway Insurance Group CTP SA) (Insurer) in relation to the compensable event (the civil claim).[1]
[1] DCCIV 1120 of 2018, Joint Tender Bundle, Exhibit R1, p 118.
In 2019, the Applicant was accepted as a participant in the National Disability Insurance Scheme (NDIS) on the basis of a traumatic brain injury and major depressive disorder.[2] As a participant, the Applicant accessed supports funded by the Agency.
[2] Respondent’s Statement of Facts, Issues and Contentions, 18 October 2023 [4].
A signed Release and Discharge dated 25 May 2021 establishes that the Applicant and her husband settled the civil claim for an all-inclusive sum of $3,297,500.00 (the settlement sum).[3]
[3] Joint Tender Bundle, Exhibit R1, p 118.
On 16 June 2021, the Agency issued a recovery notice to the Insurer proposing to recover the amount of $382,450.92, representing payments by the Agency for supports funded under the Applicant’s NDIS plan prior to settlement (recoverable amount).[4]
[4] Joint Tender Bundle, Exhibit R1, p 125.
Procedural history
In a letter dated 20 May 2022, the Applicant’s legal representative submitted a request to the Agency for special circumstances under s 116 of the NDIS Act.[5]
[5] Joint Tender Bundle, Exhibit R1, p 343.
Following notification that her application was unsuccessful, the Applicant sought review of the original decision.[6]
[6] Joint Tender Bundle, Exhibit R1, p 346 and p 371.
On 17 January 2023, a delegate of the Respondent affirmed the original decision under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) (reviewable decision).[7]
[7] Joint Tender Bundle, Exhibit R1, p 173.
On 31 January 2023, the Applicant applied for review.[8]
[8] Joint Tender Bundle, Exhibit R1.
STATUTORY FRAMEWORK
The Tribunal’s jurisdiction is enlivened by the operation of s 103 of the NDIS Act and s 12 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act).
Section 11 of the NDIS Act defines ‘compensation’, for the purposes of the NDIS Act.
(1) In this Act:
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.
Section 107 of the NDIS Act is entitled Recovering past NDIS amounts from consent judgements and settlements, and states:
(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.
…
In this case, neither s 107(3) nor s 107(4) are applicable.
Section 116 of the NDIS Act entitles the CEO to disregard certain payments, it states:
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.
The Compensation Operational Guideline – Special Circumstances (Operational Guideline) provides that the participant’s disability and the risks of litigation may not be special circumstances. The Operational Guideline is government policy which I am to take into account unless there are cogent reasons not to do so.[9]
…the existence of a significant and permanent disability in the context of the NDIS may not, in itself, amount to a special circumstance
…
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.[10]
[9] Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179.
[10] Operational Guideline, 13.2.2.
ISSUES
The issue for determination is whether the whole or part of the compensation payment should be treated as not having been fixed by settlement because it is ‘appropriate to do so in the special circumstances of the case’, and whether the recoverable amount should be reduced.
Compensation payment
The Applicant submits that legal costs should be excluded from the settlement amount.[11] I consider that the definition of ‘compensation’ under s 11 of the NDIS Act does not include legal costs. Documents before the Tribunal suggest that the settlement sum comprised a compensation payment to the Applicant in the amount of $3,000,000.00, a payment to the Applicant’s husband in the amount of $30,000.00 and a payment for legal costs and disbursements in the sum of $267,000.00.[12]
[11] Applicant’s Amended Statement of Facts, Issues and Contentions at 14.4.
[12] Joint Tender Bundle, Exhibit R1, p 764; p 795; p 809.
WHAT CONSITUTES SPECIAL CIRCUMSTANCES?
In ZZXMv CEO, National Disability Insurance Agency [2024] ARTA 24 (ZZXM), Senior Member Bean considered the issue of what constitutes ‘special circumstances’ for the purposes of s 116 of the NDIS Act.
At [19], Senior Member Bean stated:
I accept that to be ‘special’, the relevant circumstances must be ‘unusual, uncommon or exceptional’ and the financial circumstances of a participant alone will not necessarily be sufficient.[13] The Operational Guidelines also specify that neither a participant’s disability nor a decision to accept a lower amount due to the risks of litigation will necessarily constitute special circumstances in the relevant sense.[14]
[13] Beadle and Director-General of Social Security [1984] AATA 176.
[14] Operational Guideline, 13.2.2.
Following consideration of relevant authorities, Senior Member Bean concluded:
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 such that a strict application of the statutory formula is inappropriate and should be ameliorated in the circumstances of a particular individual. [15]
…
Indeed as noted by Justice Mansfield in Kirkbright, the existence of a provision such as s 116 is an express acknowledgement that a strict application of the statutory formula will be inappropriate in some cases. It is also significant in my view that the discretion in s 116 will necessarily apply in circumstances where the amount sought to be recovered is the amount received by the participant for past NDIS supports. The existence of the discretion contained in s 116 is an acknowledgement that it will not always be appropriate to recover the full amount paid for past NDIS supports, notwithstanding the calculation of the recoverable amount is not arbitrary.[16]
[15] ZZXMv CEO, National Disability Insurance Agency [2024] ARTA 24 at [21].
[16] ZZXMv CEO, National Disability Insurance Agency [2024] ARTA 24 at [24].
I adopt Senior Member Bean’s analysis of what constitutes special circumstances in my consideration of this matter.
CIRCUMSTANCES RELIED UPON
The circumstances on which the Applicant relies may be categorised as follows.
(a)NDIS pricing and financial integrity
(i)Gap between market and Agency rates and service providers enriching themselves
(ii)Lack of financial integrity
(b)Respondent’s communications
(iii)Claim that Agency was present at settlement conference
(c)Deficient legal advice
(i)Settlement and brain injury
(ii)Settlement and NDIS recovery
(iii)Settlement sum and earlier formulation
(d)Financial hardship and living circumstances
(e)Disability
(f)Difference to Medicare
(g)Conduct of the Respondent
(h)Service in the Australian Defence Force
NDIS pricing and financial integrity
Gap between market and Agency rates and enrichment of service providers
The Applicant claims that the supports paid for by the Agency ‘vastly exceeded market value’ rates, creating a gap between the compensation payment and the recovery amounts.[17] The Applicant contended that there is a ‘significant difference between commercial rates of payment and the rates of payment made by NDIA which it subsequently seeks to recover’.[18]
[17] Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [11].
[18] Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [16].
The Applicant claims that service providers are in a position to enrich themselves by recovering non-commercial payments where a disabled person must limit her claim to a proportion of commercial rates for services.[19]
[19] Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [18].
The Respondent made the following submissions.
(a)The Applicant has not provided a factual foundation to establish the difference in rates as claimed.
(b)The Agency provided, on more than one occasion, tables with a breakdown of past NDIS amounts paid for supports accessed by the Applicant and so the Applicant could, and presumably did, know the amounts being paid for supports.
(c)As she was accessing supports under a plan at the relevant time, the Applicant would have known, or could have calculated, the amounts being paid for supports by the Agency.
(d)A document entitled NDIS Pricing Arrangements and Price Limits (NDIS Pricing Guide) is published by the Agency and applies to all NDIS participants and there is nothing stopping a participant from negotiating a lower price.
(e)The amounts that were paid for supports to the Applicant by the Agency were consistent with the NDIS Pricing Guide.[20]
[20] Respondent’s Statement of Facts, Issues and Contentions, 12 December 2024 [50].
I am unable to accept that the rates paid by the Agency vastly exceeded market rates. This is because:
(a)there is no evidence before the Tribunal of any calculations or figures demonstrating if or how the supports that the Applicant had accessed and that were paid for by the Agency exceeded the market value or the commercial rates of payment for supports at the relevant time, and
(b)I am satisfied that the Agency publishes a price guide which applies to all participants in the NDIS scheme, and so the rates paid by the Agency for supports accessed by the Applicant would have potentially applied to all NDIS participants, accepting that some participants may negotiate difference prices.
I am satisfied that the Agency provided the Applicant with tables setting out the amounts that had been paid for supports accessed by the Applicant on 6 August 2020[21] and on 1 February 2021[22], and that because of these tables and the Applicant’s own NDIS plan, the Applicant knew, or had the information to calculate, the amounts being paid for supports accessed by her at the relevant time. The Applicant could have, and her former legal representative may have, used that information to negotiate the civil claim.
[21] Joint Tender Bundle, Exhibit R1, p 637 and p 685.
[22] Joint Tender Bundle, Exhibit R1, p 338.
I am not satisfied that the rates paid by the Agency for supports accessed by the Applicant caused a gap between the compensation payment and the recoverable amount, nor that the NDIS pricing or rates paid contribute to, or constitute, special circumstances for the purposes of s 116 of the NDIS Act.
Lack of financial integrity
The Applicant claims that the Agency ‘has recovered payments that it has made which do not meet a reasonable standard of financial integrity to the detriment, in this case, of the Applicant, a person with a serious disability. The NDIA has recovered payments that have not been properly itemised or described and there is an unacceptable risk, in this case, that the NDIS system has compromised its purpose at the personal expense of the Applicant (a person with a disability)’.[23]
[23] Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [19] – [20].
The Respondent contends that there is no evidence referred to in support of the Applicant’s claim, and that:
(a)prior to settlement the Agency provided a breakdown of payments and so the Applicant knew the rates that were being charged for supports
(b)the Agency publishes the NDIS Pricing Guide which is publicly available and applicable to all NDIS participants.[24]
[24] Respondent’s Further Statement of Facts, Issues and Contentions, 7 March 2025, [21]; Respondent’s Statement of Facts, Issues and Contentions, 12 December 2024, [50] and [54]-[56].
I accept there is no evidence to support the Applicant’s claims regarding a lack of financial integrity on the part of the Agency.
I find that there is no aspect of the Agency’s financial practices in this matter that constitute, or contribute to, special circumstances for the purposes of s 116 of the NDIS Act.
Respondent’s communications
The Applicant claims that there has been a ‘lack of proper, professional communication concerning recovery of non-commercial payments made by the NDIA’.[25]
[25] Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [17].
In oral evidence, the Applicant said that the Agency did not clearly communicate an intention to recover and referred to the use of the words ‘may recover’ in correspondence.
Evidence of the communications between the Agency and Applicant’s legal representative includes the following.
(a)A letter dated 15 July 2019 in which the Agency notified the Applicant’s former legal representative that it had ‘identified [the Applicant] is currently seeking compensation’. The Agency requested information for the purposes of issuing a notice to any potential compensation payer or their insurer to advise that ‘past NDIS amounts, claimed under [the Applicant]’s plan, might be recoverable on settlement of a compensation claim’.[26]
[26] Joint Tender Bundle, Exhibit R1, p 598.
(b)A letter dated 14 July 2020 to the Agency in which the Applicant’s former legal representative requested a list of all payments made by the Agency in relation to the Applicant.[27]
[27] Joint Tender Bundle, Exhibit R1, p 635.
(c)A letter dated 6 August 2020 by which the Agency informed the Applicant’s former legal representative that up to 27 July 2020, the Applicant had claimed supports in the amount of $170,903.52. The Agency advised that the amount of compensation that may be recovered ‘will be determined once the participant’s compensation claim against the potential compensation payer is finalised’.[28]
[28] Joint Tender Bundle, Exhibit R1, p 637.
(d)A letter dated 9 November 2020, in which the Agency informed the Applicant’s former legal representative that it:
…may recover an amount from [the Applicant]’s compensation payment once the compensation claim is finalised. This amount is calculated from the date [the Applicant] became a participant of the National Disability Insurance Scheme (NDIS) or their date of injury (whichever is later), until the day before the compensation claim finalises.
The Agency advised that between 27 May 2019 and 4 November 2020, it had paid $235,239.77 for supports funded under the Applicant’s plans in relation to the impairments sustained as a result of the personal injury.[29]
(e)In a letter dated 10 November 2020 with the subject heading Offer to appear at court approval hearing, the Agency stated that it was:
…willing to brief counsel to seek leave to appear as amicus curiae at any future hearing listing before the Court for an application for approval of a settlement (the hearing). The NDIA makes this offer to assist the participant, solicitors, and the Court to clarify the processes for:
-The NDIA recovering past NDIS amounts paid…[30]
(f)On 21 January 2021, the Applicant’s former legal representative informed the Agency that a mediation was scheduled on 4 February 2021. The Applicant’s former legal representative asked the Agency whether it had any interest in the matter and, if so, to provide information regarding the quantum of the NDIS charge.[31]
(g)In a letter dated 1 February 2021 headed Estimate of Recoverable Amount, the Agency advised the Applicant’s former legal representative that the ‘estimated Recoverable Amount is $304,541.37’.[32]
(h)Emails dated 9 and 10 February 2021 indicate that the Applicant’s former legal representative attempted to obtain information from the Agency regarding processes to ‘vary your charge’.[33]
[29] Joint Tender Bundle, Exhibit R1, p 336.
[30] Joint Tender Bundle, Exhibit R1, p 683.
[31] Joint Tender Bundle, Exhibit R1, p
[32] Joint Tender Bundle, Exhibit R1, p p 338.
[33] Joint Tender Bundle, Exhibit R1, p 766-767.
In closing submissions, the Applicant’s legal representative acknowledged there may have been miscommunications or misunderstanding between the Applicant and her former legal representative.

I do not accept the Applicant’s allegation regarding the Respondent’s communications, to the extent that they are described in paragraph ‎37 above, were unprofessional or improper. It is unfortunate if misunderstandings or miscommunications arose between the Applicant and her former legal representative. However, I find that there is no aspect of the Respondent’s communications that constitute, or contribute to, special circumstances for the purposes of s 116 of the NDIS Act in this matter.
Claim that Respondent was present at settlement conference
The Applicant claims that ‘at the time of the final settlement conference, the Respondent was present as an observer and had indicated no amount for recovery would be made on their behalf’.[34] I understand the reference to the ‘final settlement conference’ to be the mediation in the civil claim held on 4 February 2021.
[34] Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [25].
The Respondent contends that the Agency was not present at the settlement conference between the Applicant and the Defendants in the civil claim and rejects the assertion that it indicated that no amount of recovery would be made.[35]
[35] Respondent’s Further Statement of Facts, Issues and Contentions, 7 March 2025, [4]-[5].
I do not accept that the Respondent was present at the mediation on 4 February 2021 because the contemporaneous documentary evidence leads to a conclusion that the Respondent was not present.
(a)In a letter dated 5 February 2021, the Applicant’s former legal representative wrote to the Applicant regarding the mediation that had occurred on 4 February 2021. The Applicant’s former legal representative reported that ‘present at that time was Mr [TB], Mr [AK], myself and the other side’. [36]
(b)In an opinion dated 10 February 2021, the Applicant’s former barrister referred to the mediation on 4 February 2021 noting that he was present with the Applicant’s former legal representative ‘your clients, my clerk, solicitor representing the defendant at the mediator, Miss [FN] QC’.[37]
(c)In a letter dated 18 February 2021 to the Applicant, the Applicant’s former legal representative stated: ‘I have advised you that NDIS were invited to attend the mediation on 4 February 2021…They did not attend and instead sent through an updated list of payments on or about 1 February 2021’.[38]
[36] Joint Tender Bundle, Exhibit R1, p 761.
[37] Joint Tender Bundle, Exhibit R1, p 769-776.
[38] Joint Tender Bundle, Exhibit R1, p 804.
Even if the Respondent was present, I do not accept that the Respondent would have indicated to the Applicant that no recovery would be made because:
(a)there is no evidence to support that assertion, and
(b)the assertion is contrary to the contemporaneous communications regarding recovery described at paragraph ‎36 (above) and paragraph ‎58 (below).
Deficient legal advice
The Applicant raises issues of insufficient legal advice and representation, resulting in poor outcomes and resulting in her being unable to understand what her representatives were undertaking on her behalf. The Applicant refers to the ‘extortionate nature of their billing arrangements’ and contends that the Respondent and the Tribunal ought to have raised legal ethics and conduct on the part of the Applicant’s former legal representatives.[39]
[39] Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [26].
The Applicant refers to the suggestion that she relied on ‘inadequate and arguably erroneous legal advice at the time of settlement’.[40] The Applicant submits that had the correct advice not to settle been given and separate negotiations made with the Respondent at the time, the current proceedings would have never occurred.[41]
[40] Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [31].
[41] Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [47].
In oral evidence, the Applicant said that she was given no option in settling the civil claim and was told that she could not afford to go to trial.
The Applicant submits that she does not have the resources to re-open her compensation matter, nor bring a claim for misconduct by her previous legal representatives, and in any event such claims would be costly, difficult, and unpredictable to determine.
The Respondent submits that the Applicant’s allegation concerning inadequate or insufficient legal advice is serious, and that the Tribunal should be slow to accept it. The Respondent submits that the Applicant has not provided any detail and evidence to support her allegations.[42] The Respondent considers that the evidence before the Tribunal demonstrates that the Applicant was given detailed advice by her solicitor and counsel, and the evidence does not suggest any deficiency.[43]
[42] Respondent’s Further Statement of Facts, Issues and Contentions, 7 March 2025, [7].
[43] Respondent’s Further Statement of Facts, Issues and Contentions, 7 March 2025, [8c].
Settlement and brain injury
The Applicant claims that she was advised ‘to agree to a settlement that she understood to not include compensation for her brain injury’ [44] and that her former lawyer failed to negotiate an additional amount reflecting her brain injury.[45]
[44] Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [25].
[45] Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [43].
The Applicant claims that there is medical evidence that liability for payments for an acquired brain injury was not accepted and was excluded from the compensation payment.
In oral evidence, the Applicant said that she was only compensated for her physical injuries, her back and her neck and ‘not being able to work’. The Applicant said that the Agency supports her for her brain injury. The Applicant said that her former legal representative told her that she would get most of the recoverable amount back because she ‘did not get paid out for a brain injury’.
The Applicant submits that a formal Memoranda outlined the scope of payments made to her and this can be relied upon to determine what should be included in the recovery and what should be excluded from the settlement amount.[46]
[46] Joint Tender Bundle, Exhibit R1.
The documents before the Tribunal indicate that the evidence as to the Applicant’s injuries was varied, and the issue was contested by the parties.
(a)The Applicant’s Statement of Loss filed in September 2019 listed symptoms and disabilities as result of the compensable event as: acquired brain injury, narcolepsy, cataplexy, dizziness, lower back and leg problems, neck problems, audio hallucinations, scarring and disfigurement, weight loss and gain, effect of noise, psychological/psychiatric problem, tingling in arms.[47]
(b)In a report dated 9 September 2019, Dr Tony Davis, Psychiatrist, noted ‘disparate opinions from independent specialists about the nature of the [Applicant]’s chronic condition’.[48]
(c)In a position paper prepared for mediation on 4 February 2021, the Defendant stated ‘It is apparent from the applicants’ position paper that their case is based principally on the first applicant having sustained a traumatic brain injury (TBI) in the subject collision and all of her subsequent disabilities and restrictions are attributable to that TBI’ and ‘their case as pleaded included a number of other injuries or symptoms including psychiatric injuries of post-traumatic stress disorder with depression and anxiety’. [49]
(d)The Defendant did not concede that the Applicant had sustained a traumatic brain injury, noting in its position paper prepared for mediation on 4 February 2021 that the Applicant ‘did not sustain a TBI or if she did it was a mild or limited injury, and she has recovered from it’.[50]
(e)The Defendant considered that if the matter proceeded to trial, ‘the contest on the medical evidence will be what is the cause of the first applicant’s disability and impairment…’.[51]
[47] Joint Tender Bundle, Exhibit R1, p 34.
[48] Joint Tender Bundle, Exhibit R1, p 628.
[49] Joint Tender Bundle, Exhibit R1, p 731, [2]-[3].
[50] Joint Tender Bundle, Exhibit R1, p 732, [11].
[51] Joint Tender Bundle, Exhibit R1, p 732, [17].
Documents before the Tribunal indicate that the settlement sum comprised a compensation payment to the Applicant in the amount of $3,000,000.00, a compensation payment to the Applicant’s husband in the amount of $30,000.00 and a payment for legal costs and disbursements in the sum of $267,000.00.[52] I am unable to be satisfied as to precisely what heads of damage, or specific types of losses, the settlement sum may reflect.
[52] Joint Tender Bundle, Exhibit R1, p 764; p 795.
The documents before the Tribunal suggest that after the mediation on 4 February 2021, the Applicant’s then legal representative attempted to structure the settlement sum. In a letter to the Applicant dated 15 February 2021, the Applicant’s former legal representative advised the Applicant regarding ‘organising favourable settlement terms’ to ‘optimise the extent of NDIS funding retained’.[53] In a letter dated 18 February 2021, the Applicant’s former legal representative confirmed the Applicant’s instructions to ‘pursue a settlement structure that reflects the realities of settlement’ and ‘to ensure that heads of damage are entered into a formal Judgment in the District Court of South Australia (so it is clear what has been paid and why upon subsequent NDIS review)’.
[53] Joint Tender Bundle, Exhibit R1, p 789.
Whether attempts were ultimately made to structure the settlement sum or not, the Release and Discharge signed on 21 May 2021 refers only to the claim being settled for an all-inclusive sum of $3,297,500.00. The Release and Discharge does not include any heads of damage. A document entitled Memorandum dated 26 May 2021, which post-dates the Release and Discharge, indicates that the Applicant’s former legal representative prepared a breakdown of heads of damages. That Memorandum indicates that the payment to the Applicant’s husband was in the sum of $30,000.00 and the amount attributable to legal costs was $267,000.00. However, that Memorandum indicate that the figures were not agreed and were not certain: ‘the Respondent takes a neutral position in relation to the summation prepared by the applicant’s solicitor’ and ‘it has not been possible to calculate these figures with certainty’.[54]
[54] Joint Tender Bundle, Exhibit R1, p 809.
I do not make any factual finding as to what heads of damage the settlement sum may represent, and I am unable to accept the Applicant’s claim that the settlement sum excluded compensation for her brain injury.
Settlement and NDIS recovery
The Applicant submits that ‘had she known that the further amount of circa $382k been required by the Respondent, the Applicant would have continued negotiations to ensure these amounts were included in the fixed compensation’.[55]
[55] Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [25].
While I appreciate that the nature and content of the relevant communications may have been legalistic and formal, I am unable to accept that the Applicant did not know or did not understand that the settlement sum included an amount that would be recovered by the Agency. This is because the following documents establish that the Defendant’s offer was made on the basis that NDIS amounts would be deducted from the settlement sum and establish that the Applicant received advice on numerous occasions that the NDIS amounts would be deducted from the settlement sum.
(a)In a letter dated 5 February 2021, the Applicant’s former legal representative wrote to the Applicant regarding the mediation that had occurred on 4 February 2021. The Applicant’s former legal representative stated:
The final offer that I instructed to put to the other side was 3,950,000 plus payment of all recoveries and a contribution to costs and disbursements.
The respondent’s responding offer, which was conveyed as their final offer, was 3,000,000 for damages for the first applicant, 30,000 for the second applicant, inclusive of all recoveries but excluding a contribution to costs and disbursements.
…
My advice at the conference, after payment of deductions, the likely in hand settlement figure was 1,603,000 to 1,703,000…
…
At this time, NDIS are seeking recovery of 304,541.18.[56]
[56] Joint Tender Bundle, Exhibit R1, p 760-762.
(b)In a letter dated 5 February 2021, the Applicant’s former legal representative wrote to the Insurer to ‘confirm the quantum of your final offer presented at mediation’. The final offer was noted to include ‘the following payments made by the defendant…. NDIS 304,541.37’.[57]
[57] Joint Tender Bundle, Exhibit R1, p 759.
(c)In a letter dated 8 February 2021, the Insurer wrote to the Applicant’s former legal representative confirming the final offer being $3,000,000.00 plus reasonable costs and disbursements.
By way of clarification, the $3,000,000 includes:
The current NDIS charge at $304,541.37. However, we stress, that because Mrs Usher is receiving ongoing services, the total is likely to increase.[58]
[58] Joint Tender Bundle, Exhibit R1, p 764.
…
(d)In a letter dated 18 February 2021, the Applicant’s former legal representative confirmed the Applicant’s instructions, which relevantly included:
The known deductions from this settlement are as follows:
…
Approximately 335,000 to NDIS (it may be less, upon review, but it is unlikely to be more).[59]
(e)The Release and Discharge signed by the Applicant and her husband in May 2021 includes the following.
6. The Applicants authorise and request the Motor Accident Commission or Nominal Defendant to pay the settlement sum as follows:
…
6.2 National Disability Insurance Agency (NDIA)
Direct to NDIA any amount determined by it pursuant to the National Disability Insurance Agency Act (Cw) and the National Disability Insurance Scheme Act 2013 (Cw) and notified to Motor Accident Commission by a current and valid Recovery Notice of Charge.[60]
[59] Joint Tender Bundle, Exhibit R1, p 803.
[60] Joint Tender Bundle, Exhibit R1, p 118.
I do not accept that the Applicant would have continued negotiations after 4 February 2021 for the following reasons.
(a)The Release and Discharge was signed over three months after the mediation on 4 February 2021, which indicates that there was adequate time for the Applicant to seek to re-commence negotiations had she wished to do so.
(b)It is apparent from documents before the Tribunal that numerous factors contributed to the Applicant’s decision to resolve the civil claim, including the following.
(i)The Applicant wanted to limited potential for other recoveries. In a letter to the Applicant dated 18 February 2021, the Applicant’s former legal representative stated:
I confirm that you have resolved this dispute to enhance the lump sum payment to you and your family in the common law claim right now by limiting the potential of any [Return to Work SA] recovery.[61]
(ii)The Applicant received advice that the settlement offer was favourable. The Applicant’s former legal representative advised that the settlement offer was the ‘largest settlement offer that I have observed for an injured person when they are capable of providing their own instructions…’[62] The Applicant’s former barrister advised that ‘that the settlement is one which your clients would be well advised to accept’.[63]
(iii)The settlement offer was indicated to have been the Defendant’s final offer.[64]
[61] Joint Tender Bundle, Exhibit R1, p 803.
[62] Joint Tender Bundle, Exhibit R1, p 804.
[63] Joint Tender Bundle, Exhibit R1, p 769-776.
[64] Joint Tender Bundle, Exhibit R1, p 764 and 784,
Settlement sum and previous formulation
The Applicant submits that an actuarial assessment made prior to the civil claim being settled was in excess of $10 million for the life-time loss of future income, loss of amenities and support.[65] The Applicant draws comparison with the circumstances in ZZXM and states that ‘the fact that her compensation matter settled for less than 20% of the actuarial assessment of $10 million, suggests that not only was her legal representation inadequate…’[66]
[65] Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [26].
[66] Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [44].
The Applicant did not produce any documentary evidence that an actuarial assessment of her claim was in excess of $10 million.
Counsel advice dated 30 April 2018 included a formulation in the sum of $2,690,673.23 excluding legal costs and any recoverable amounts, with a ‘word of caution in respect of the draft formulation being considered’.
The amount involved as formulated and the subject of this and previous correspondence is a very large amount of money in term of claims of this sort. The figures being produced do not take into account any potential arguments against the claim that may be raised legitimately by the defendant’s solicitors. Your client should not take these figures as being a likely range of damages that they may recover either by court order or by a negotiated agreement. They are figures however that have a prima facie justification and can be put as part of an opening claim.
What has to happen is that the claim must be finalised even if it be in somewhat exaggerated terms and put to the solicitors for the insurer.
….
Your client should not assume that figures being spoken about represent a likely range of damages that will be awarded.[67]
[67] Joint Tender Bundle, Exhibit R1, p 1533.
In a letter dated 27 May 2018 to the Insurer, the Applicant’s former legal representative formulated the claim in the amount of $7,838,384.72, excluding past medical expenses, legal costs and any recoverable amounts.[68]
[68] Joint Tender Bundle, Exhibit R1, p 514 – 540.
An opinion prepared by counsel on 19 August 2019 formulated the claim in the sum of $2,153,380, exclusive of costs and any recoverable amounts, noting it was a ‘conservative position as to the claim’.[69]
[69] Joint Tender Bundle, Exhibit R1, p 599-622.
In advice dated 15 February 2021 the Applicant’s former legal representative referred to counsel’s advice on damages ranging from approximately $2,000,000 to $4,000,000.[70]
[70] Joint Tender Bundle, Exhibit R1, p 793.
The documentary evidence before the Tribunal indicates that the Defendant in the civil proceedings disputed the Applicant’s claim of traumatic brain injury and considered that her claim for damages had ‘inherent weaknesses’.[71]
[71] Joint Tender Bundle, Exhibit R1, p 779–780.
The documents before the Tribunal indicate that the Applicants final offer to settle the matter was $3,950,000.00 plus payment of all recoveries and a contribution to legal costs and disbursements.[72] While the settlement sum of $3,297,500.00 included recoveries and legal costs[73], I am not satisfied that the Applicant would have, or could have, negotiated a higher amount, or that the settlement sum was reflective of insufficient or erroneous legal advice.
[72] Joint Tender Bundle, Exhibit R1, p 760.
[73] Joint Tender Bundle, Exhibit R1, p 118.
Conclusion in relation to claim of deficient legal advice
I accept that incorrect or insufficient legal advice may be a relevant factor when considering an application for special circumstances under s 116 of the NDIS Act. However, in this case the evidence before the Tribunal does not establish that the Applicant received insufficient, inadequate or erroneous legal advice in the course of the civil claim. I do not accept the Applicant’s claim that deficient legal advice constitutes, or contributes to, special circumstances for the purposes of s 116 in this matter.
Financial hardship and living circumstances

The Applicant submitted that she ‘has two small children, relies on the support of her spouse who is not in regular employment …, the full circumstances of their relationship while not subject to further purview in this matter, ought to be taken into account, that ultimately the Applicant will, irrespective of other changes in circumstances, face considerable hardship – financial, medical, mental, physical and emotional hardship – over the course of the remainder of her life.[74]
[74] Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [27].
The Applicant submitted that she has no means of future earning capacity and no other future income.[75]
[75] Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [39].
At the hearing, the Applicant gave evidence and submissions that since the compensable evidence she has been unable to work and has been financially dependent on her husband. She said that the compensation money was used to buy a house and pay off bills. The Applicant described sensitive matters regarding her husband and said she stayed with her husband because she could not look after her children on her own. The Applicant said that she has separated from her husband and that a few weeks previously she did not have enough money to buy food. The Applicant said that she must get food vouchers. She said that her medication alone costs $500 per month. The Applicant said that she is trying to sell the house, but because it is in both her and her husband’s name, she will have to share the proceeds with her husband. The Applicant said that the house is worth about $1,200,000.00.
The Applicant submitted that ‘[her] children are in school and are left with only support workers but otherwise the Applicant would be alone, they have no other family support’.[76]
[76] Oral evidence of Applicant, 11 March 2025; Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [38]
The Applicant said that if she could have made a more informed decision at the time of settlement, she would have invested the money. The Applicant said that the money taken from her had ‘forced [her] to stay in a domestic violence situation for about five years longer than [she] should have’.
The Applicant said that because of the compensation payment, she is not entitled to Centrelink payments for twenty-five years.
Mr Swan submitted that the Applicant’s evidence and submissions given orally at the hearing, had not been provided previously to the Respondent. Mr Swan said that there is no documentary evidence before the Tribunal as to the Applicant’s current financial circumstances, and no ability for the Respondent to test the submissions and evidence given by the Applicant during the hearing. Mr Swan submitted that it is open to the Applicant to make other applications to the Agency as regards to her financial circumstances.
I offered the Applicant the opportunity to seek an adjournment for the purposes of providing evidence of her financial circumstances. Mr Brun said that the Applicant wanted to proceed and said that there are ‘things that we can’t access’ and there was ‘nothing that we can do, even if we had more time’. The Applicant said that her husband ‘didn’t want people to know we were struggling’.
Financial hardship is expressly included as a potential factor for consideration in the Operational Guidelines.[77] I accept that the Applicant’s separation from her husband may have impacted on her financial situation. However, I am unable to make any findings on the Applicant’s financial circumstances in the absence of any current documentary evidence of the Applicant’s specific financial circumstances.
[77] Operational Guidelines at [13.2.1].
I understand that the Applicant may still pursue a financial hardship application with the Agency.
Disability
The Applicant contended that it is an ‘indictment on the legal system that s 116 requires interpretation of what an unusual or unique circumstance is in the context of a disabled person’, and that ‘any person who is legitimately covered by the NDIA Act, and is a disabled person that was subject to a horrific motor vehicle accident…ought to be taken into account…’.[78]
[78] Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [49].
Under the heading ‘Potentially inapplicable considerations’, the Operational Guideline states:
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.[79]
[79] Operational Guideline, 13.2.2.
The Respondent submitted that ‘plainly, every participant from which the Agency may seek to recover past NDIS amounts necessarily has a permanent disability resulting in a substantially reduced functional capacity to have become a participant’.
I accept that the fact that the Applicant lives with a disability does not, in and of itself, constitute or contribute to special circumstances in this case.
Difference to Medicare
The Applicant says that the Agency’s protocols surrounding the recovery of payments made differs remarkably from the recovery of payments by Medicare and to such a degree that it produces an unfairness to people with serious disabilities and this alone constitutes a special circumstance.[80] During the hearing the Applicant said, ‘If they had provided a charge sheet like other agencies, I would have known about’.
[80] Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [21].
The statutory recovery scheme under the NDIS Act applies to all NDIS participants, and for this reason I do not consider that the fact of any difference to Medicare can constitute or contribute to special circumstances.
Conduct of the Respondent and Tribunal proceedings
Delay
The Applicant submits that that this matter has been unnecessarily protracted for ‘no justifiable reason’,[81] and that ‘the fact it is 2025 now for a file that initiated in 2023, are egregiously against the purpose, intent and spirit of general principles set out in section 4 of the NDIS Act and failing in the design of the Respondent as the agency under section 6 of the NDIS Act’[82]
[81] Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [38].
[82] Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [21].
The Applicant submits that ‘given the conduct of the Respondent during these proceedings any decision to reduce or withhold future support also causes [the Applicant] anxiety and concern with regard to her future survival’.[83]
[83] Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [46].
The Respondent rejects the Applicant’s claims. The Respondent submits that ‘there has been no undue delay in this matter, let alone delay caused by the Respondent’, and that:
(a)the matter was listed for a final hearing in October 2023, and the Respondent agreed to adjourn at the Applicant’s request, for a settlement conference
(b)Tribunal conferences occurred in December 2023 and in April 2024
(c)the matter was relisted for hearing in December 2024, when a further request for adjournment was made by the Applicant.[84]
[84] Respondent’s Statement of Facts, Issues and Contentions, 7 March 2025, [17](d).
I accept that the application was filed in early 2023. I understand that the parties engaged in alternative dispute resolution procedures since that time, and that previously listed hearings were adjourned. I am not satisfied that any delay has been caused by the Respondent.
Legal Services Directions
The Applicant suggests ‘not only malfeasance on the part of the Respondent, but an overt breach of the Commonwealth Model Litigant Rules contained in Guidance Note 3 of the Legal Services Directions 2017’ because of the following.
(i)Not having raised an issue of legal ethics and conduct on the part of the Applicant’s former legal representative due to the ‘unnecessarily copious amounts of evidence tendered’ and the ‘arguably extortionate nature’ of their billing arrangements.
(ii)The failure on the part of the Respondent to attempt some form of resolution to this matter.
The Applicant referred to the Legal Services Directions, and the obligation on the Respondent to not take advantage of a claimant who lacks the resources to litigate a legitimate claim. The Applicant contended that ‘resources’ also includes mental faculties and mental capacity to effectively instruct legal representation, which it appears now she has been taken advantage of by both her previous lawyers and the Respondent.
The Respondent submits that non-compliance with the Legal Service Directions cannot be raised in this proceeding because of s 55ZG(3) of the Judiciary Act 1903 (Cth) which states:
The issue of non-compliance with a Legal Services Direction may not be raised in any proceedings (whether in a court, tribunal or other body) except by, or on behalf of, the Commonwealth.
Nonetheless, the Respondent rejected the assertion that there has been any non-compliance with the Model Litigant Policy.
I accept that issue of non-compliance with the Legal Service Directions may not be raised by the Applicant because of s 55ZG(3) of the Judiciary Act 1903 (Cth).
Financial impact
The Applicant submits that since the time of the commencement of this matter, she has been under financial hardship, in part caused by representations by both the Respondent, and other third parties, such as her legal representation and counsel. The Applicant says that this resulted in her ‘having an absolute disadvantage in financial resources to prosecute any defence or claim on her own part’.[85] The Applicant submitted that the Respondent and the Tribunal ought to have raised this as an issue of legal ethics and conduct on the part of the Applicant’s then legal representatives.
[85] Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [29].
I am satisfied that the Applicant was legally represented by counsel and a solicitor up to December 2024. I accept that the Applicant may have incurred expenses in engaging legal representation. However, as discussed in paragraphs ‎77-‎78, the Applicant has not produced any evidence of her specific financial circumstances to the Tribunal.
Conclusion in relation to conduct of the Respondent and Tribunal proceeding
I am satisfied that there is no aspect of the Respondent’s conduct, and no other aspects of this Tribunal proceeding, that constitutes or contributes to special circumstances for the purposes of s 116 of the NDIS Act.
Service in Australian Defence Force
The Applicant raised ‘the significance that she previously served in the Australian Defence Force, she has served her country and her community’. The Applicant submits that it is saddening that someone who served their country, with honour and pride should be treated this way by the same Government that they served to protect and uphold.[86]
[86] Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [48].
I acknowledge the Applicant’s service in the Australian Defence Force, but that service does not constitute or contribute to special circumstances for the purposes of s 116 of the NDIS Act, in the context of this matter.
GENERAL PRINCIPLES OF NDIS ACT
The Applicant submitted that ‘together with the breach of the model litigant rules, the Respondent’s carriage of this matter and the fact it is 2025 now for a file that initiated in 2023, are egregiously against the purpose, intent and spirit of general principles set out in section 4 of the NDIS and failing in the design of the Respondent as the agency under section 6 of the NDIS Act’.[87]
[87] Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [34].
The Respondent referred to the High Court decision of Kline v Official Secretary to the Governor-General (2013) 249 CLR 645 in making the submission that legislation does not pursue its objects at any cost.[88] The Respondent submitted that Parliament clearly intended that the specific statutory scheme concerning recovery apply to all NDIS participants. I accept that submission.
[88] at [37], with reference to Carr v Western Australia (2007) 232 CLR 138 ; 239 ALR 415; [2007] HCA 47 at [5] , cited with approval in Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 87 ALJR 1009 ; 300 ALR 460 ; [2013] HCA 36 at [40]–[41].
ZZXM
The Applicant submitted that despite some differences, the circumstances in the case of ZZXM (discussed at paragraphs ‎19-‎22 above) ‘bear great similarity to the Applicant in the present case’.[89]
[89] Applicant’s Amended Statement of Facts, Issues and Contentions, 17 February 2025, [32].
In my view, consideration of whether special circumstances apply for the purposes of s 116 of the NDIS Act requires evidence and understanding of the specific factors that are claimed to constitute or contribute to special circumstances for a particular applicant. It is a fact specific exercise.
I am not satisfied that the circumstances of the applicant in ZZXM are comparable to those of the Applicant in this matter for the following reasons.
(a)In ZZXM, Senior Member Bean considered that the circumstances surrounding the applicant’s personal injury action were ‘complex and somewhat unusual’.[90] In ZZXM, members of the Applicant’s family were defendants in the civil proceedings, and the mediation occurred at the beginning of the COVID-19 pandemic. In contrast, I am unable to find that there was anything especially complex or unusual about the Applicant’s personal injury action and settlement.
(b)In ZZXM, Senior Member Bean made factual findings as regards the applicant’s financial circumstances. As discussed in paragraphs ‎77-‎78, the Applicant has not produced any probative evidence of her financial circumstances to the Tribunal.
(c)In ZZXM, damages originally sought by the applicant were over $18,000,000. The applicant was advised prior to settlement not to settle for less than $8,000,000-$9,000,000. The matter settled for $3,000,000 inclusive of legal costs.[91] In this case, the Applicant’s former legal representative referred to counsel’s advice on damages ranging from approximately $2,000,000 to $4,000,000.[92] The Applicant and her husband offered to settle for $3,950,000.00 plus payment of recoveries and a contribution to legal costs.[93] The Applicants settled for an all-inclusive sum of $3,297,500.00.[94] The figures are proportionally not comparable to those in ZZXM.
[90] ZZXMv CEO, National Disability Insurance Agency [2024] ARTA 24 at [29].
[91] ZZXMv CEO, National Disability Insurance Agency [2024] ARTA 24 at [33].
[92] Joint Tender Bundle, Exhibit R1, p 793.
[93] Joint Tender Bundle, Exhibit R1, p 760.
[94] Joint Tender Bundle, Exhibit R1, p 118.
DECISION
I find that there are no circumstances which would constitute, or contribute to, special circumstances to treat the whole or part of the compensation payment as not having been fixed.
As I find that there are no circumstances which would constitute, or contribute to, special circumstances, it is unnecessary for me to undertake any calculations concerning reduction of the recoverable amount.
The decision under review is affirmed.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for the decision of Senior Member C Shepherd.
………[SGND]……………..
Associate, dated 15 April 2025

Date of hearing: 11 March 2025

Solicitor for the Applicant:

Mr Francois Brun

Solicitor for the Respondent:

Counsel for the Respondent:

Ms Emily Baggett

Mr Nicholas Swan