Chapter 7
Nominees and appeal procedures
Nominees
7.1
Chapter 4 part 5 of the bill creates what are called plan nominees
and correspondence nominees. Nominees are people who may be
authorised to do things on behalf of an NDIS participant. They may be nominated
by the participants themselves, or by the CEO of the agency. Before the CEO can
nominate someone, the bill requires a number of things to be considered,
including:
- Any wishes expressed by the participant;
- Whether the person consents to being a nominee;
- Whether they are able to discharge the duties of a nominee set
out in clause 80 of the bill;
- Any existing state or territory guardianship arrangements; and
- Anything else required under the rules to be considered.[1]
7.2
A plan nominee may be appointed for all aspects of the plan, but the
appointment can also limit the matters for which the person is a nominee.[2]
7.3
On 5 March 2013, the department provided to the committee some draft
rules relating to nominees. These provided some additional detail that the
government proposes to add on the process of appointment, including that the
CEO must have regard to:
(a) whether the participant would be able to participate
effectively in the NDIS without having a nominee appointed;
(b) the principle that a nominee should be appointed only
when necessary, as a last resort, and subject to appropriate safeguards;
(c) any formal guardianship arrangements that might be in
place;
(d) whether the participant has supportive relationships,
friendships or connections with others that could be:
i) relied on or strengthened to
assist the participant to make their own decisions; or
(ii) improved by appointment of an
appropriate person as a nominee.[3]
7.4
The draft rules also indicate that wishes expressed non-verbally, or
expressed to third parties such as support workers, must be considered.[4]
The draft rules also go into more detail about how the CEO should approach guardianship
matters, stating:
The CEO is also to have regard to the following:
(a) the presumption that, if the participant has a guardian
whose powers and responsibilities are comparable with those of a nominee, the
guardian should ordinarily be appointed as nominee;...
(c) the desirability of preserving family relationships and
informal support networks of the participant;
(d) any existing arrangements that are in place between the
person and the participant;...[5]
7.5
While the bill requires that the CEO 'have regard to whether a person
has guardianship of the participant', the draft rules are more blunt about what
this should involve, saying ' The CEO is to consult, in writing, with any
guardian in relation to any appointment'.[6]
7.6
Clauses 89 to 92 set out a range of circumstances and processes for the
cancellation or suspension of nominees. These include clause 91, under which
the CEO may suspend an appointment of a nominee if the CEO believes 'that the
person has caused, or is likely to cause, severe physical, mental or financial
harm to the participant'.
7.7
Issues raised regarding nominees included how the processes would interact
with existing state and territory guardianship arrangements; whether the bill
sufficiently reflected a rights-based approach; and whether the conditions set
for suspension of nominee status were appropriate.
Guardianship and nominees
7.8
States and territories have existing arrangements under which an
individual or organisation may be appointed as a guardian for a person with
disability. An organisation with guardianship may also be a service provider.
Many submitters queried how the new arrangements would interact with these
existing systems.
7.9
Existing guardianship arrangements contain procedural safeguards that
some submitters wanted preserved, as well as seeking to avoid duplication.
ADACAS stated:
It is not appropriate for the CEO to assume quasi-guardianship
appointment powers without the safeguards that are afforded by tribunal systems
within each jurisdiction, rather ADACAS believes the NDIS legislation should
cross reference to state guardianship laws and that these established processes
should be used to appoint nominees without the participants consent only if
there are grounds to do so.
Recommendation 5.2: That the NDIS
legislation recognises current state and territory substitute decision-making
mechanisms regarding guardianship and financial management, and not put in
place additional mechanisms for substitute decision-making.[7]
7.10
PWDA made a similar point:
Australia has existing State and Territory guardianship
legislation and tribunals in each jurisdiction with powers to appoint
substitute decision makers, guardians, financial managers, to review and
monitor their actions, and to consider the welfare of the person they act for.
Therefore, the powers relating to Nominees are not only unnecessary but
introduce a quasi-form of guardianship which would operate outside of the
safeguards provided by the legislation and tribunals.[8]
7.11
Victoria’s Office of the Public Advocate recommended:
That the NDIS legislation provide explicit recognition of
state and territory-based substitute decision-making arrangements. This
includes the appointment of administrators as well as guardians, and relevant
personal appointments of substitute decision makers under enduring powers of
attorney.[9]
7.12
The committee discussed with Tasmanian organisations the interaction
between advocacy, guardianship and existing arrangements in jurisdictions:
as pointed out in the DANA submission there is some confusion
there about how those state-based substitute decision-making processes will
work and articulate with the NDIS, given that the nominee process seems to be
that the NDIA can appoint whoever they want. So there is some confusion there.
We believe that there is a system in place in each state. They are not perfect,
but they are currently going through review and reform processes. If,
theoretically, those processes will be responsible for supporting many people
with impaired capacity through the NDIS they will also need to have a much more
enhanced supported decision-making role. Most states, most guardianship boards
are conscious of that nowadays.[10]
7.13
There was some concern raised about the possible interaction between a
person's responsibilities as a nominee and as a service provider, and whether a
conflict of interest could arise.
Finally, around nominees and guardianship, a nominee under
the NDIS should not cancel out state provisions and legislation around
guardianship. There needs to be provision within the legislation to deal with
that. There also needs to be more rigour put in to defining the difference
between a nominee and a guardian, and to have provision so that where there is
a perceived, a potential or a real conflict of interests between the nominee
and the best interest of the person, there is a safeguard or a function to
enable the dismissal of the nominee or to override it.[11]
7.14
At its hearing on 5 March, the committee was advised by the department
that it is considering a number of issues for possible amendment, following
consultation with states and territories, and that this may include aspects of
the nominee provisions discussed above.[12]
Committee view
7.15
The committee agrees that it is important that existing state and
territory processes be recognised and respected, and acknowledges that these
provide procedural safeguards that benefit people with disability. Where state
or territory guardianship processes are under review, the committee endorses
the adoption of strong safeguards that give primacy to the rights of a person
with disability to make their own decisions, or to be supported to make their
own decisions, wherever possible.
7.16
The committee believes that the draft rules make clear the intention of
the Commonwealth to use existing guardianship arrangements to the greatest
extent possible when appointing nominees under the NDIS. However the committee
does believe that the national scheme does require nominees as a matter of law,
so they should not be omitted altogether from the draft bill.
Advance directives or advance
statements
7.17
VICSERV raised the possibility that advance directives or advance
statements could be useful in the development of statements of goals and
aspirations, as well as in potentially identifying appropriate supports. This
could be the case where someone may lack a nominee, but have an advance
directive of some kind in place. These statements 'could be very useful in
deciding what supports would help that person in imagining and getting the
services that they need'.[13]
7.18
Ms Crowther from VICSERV was asked how the advanced directives might be
relevant to the NDIS, given that they are generally a health policy instrument.
She explained:
The NDIS agency will not have the capacity to compel—that
capacity will remain with the clinical treatment mental health services—but it
will have a capacity to assist the process of planning for that person to make
some decisions: for instance, 'You said you wanted this to happen in this
environment; here is how you can get some of those services for that.' The
fundamental issue that we are worried about is that with the interventions
being placed in NDIS it may remove the person's control over what they need to
do. As soon as you remove that control, the person's self-efficacy and the
person's skills begin to diminish.[14]
7.19
A lot of evidence was received that emphasised the importance of
identifying and acting on the decisions and preferences of people with
disability. The committee received very limited evidence on the specific subject
of advance directives in this context. However their importance, and the need
to ensure they are recognised and respected, has been a recurring theme in the
Community Affairs committees' work. Given the need to give primacy to the
rights and decision-making preferences of the participant in the NDIS process,
the committee sees the potential in advance directives being able to contribute
valuable information, particularly during the preparation of participant plans.
Recommendation 22
7.20
The committee recommends that in general where:
- a plan is being prepared, or a nominee is undertaking an act, and
- at the time, the person with disability is unable to express
their preferences, and
- a formal advance directive (however described) is in effect for
that person,
the rules ensure that the plan is not made, or an act
undertaken by a nominee, in contradiction of a preference expressed in the
advance directive.
Nominees and a rights-based
approach
7.21
As outlined in chapter 2 of this report, there were widespread concerns
about whether some parts of the bill were sufficiently reflective of a
rights-based approach. This was a common concern with the provisions relating
to nominees. Submitters, who did not have access to the draft rules when
writing their submissions, were concerned about the lack of constraints around
decision-making in relation to the appointment of nominees. They expressed concern
that the tone of the section did not reflect the rights and principles set out
at the start of the bill.[15]
7.22
The draft rules, cited above, appear to address a range of these issues,
by being more prescriptive about steps that must be taken through the process
of appointing nominees, as well as defining how nominees are to act.
7.23
An example of this concerns clause 78 of the bill. The clause governs
nominees taking action on behalf of plan participants. It currently states that
those nominees appointed by the CEO may only take actions 'if the nominee
considers that the participant is not capable of doing the act'.
7.24
The Victorian Government argued that this language does not fully
address the potential for the participant to engage in the decision-making
process. It argued that the clause should be amended to restrict nominees to
taking actions only 'if the nominee considers that the participant is not
capable of doing, or being supported to do, the act'.[16]
7.25
Under the draft rules provided on 5 March, it is proposed that actions
of nominees be restricted in the way described by the Victorian Government:
A plan nominee appointed at the request of the participant
has a duty not to do an act unless satisfied that:
(a) it is not possible for the participant to do, or to be
supported to do, the act himself or herself; or
(b) it is possible for the participant to do the act himself
or herself, but the participant does not want to do the act himself or herself.[17]
7.26
The committee agrees with the Victorian Government's concern, and that
the Rules should address this matter.
Recommendation 23
7.27
The committee recommends that the government ensure that either
the bill or rules permit nominees to undertake an act only when the participant
is not capable of doing, or being supported to do, the act.
'Severe' harm?
7.28
Under clause 91, the CEO would be able to suspend a nominee if the CEO
'has reasonable grounds to believe that the person has caused, or is likely to
cause, severe physical, mental or financial harm to the participant'. This
clause caused concern, with submitters arguing it set the bar too high.[18]
Given that this is a discretionary power as currently drafted, several
submitters queried why the CEO should have to wait until the risk was of
'severe' harm before having power to act. The Victorian government argued that
the word 'severe' should be deleted.[19]
Victorian Legal Aid agreed.[20]
7.29
The department in evidence indicated that it was considering a change in
the terminology here and that 'severe' may not have been the most appropriate
word to use.[21]
Recommendation 24
7.30
The committee recommends that clause 91(1) be amended to delete the term
'severe'.
Appeals
7.31
Clause 99 of the bill sets out a list of 22 different decision points
within the bill that are subject to review. There are two stages of review
available. Under clause 100(5), there is first an internal review by someone
not involved in the original decision. It states:
If:
(a) the CEO receives a request
for review of a reviewable decision; or
(b) the CEO is taken to have made
a reviewable decision because of subsection 21(3) or 48(2);
the CEO must cause the reviewable decision to be reviewed by
a person (the reviewer):
(c) to whom the CEO’s powers and
functions under this section are delegated; and
(d) who was not involved in
making the reviewable decision.
7.32
If a person is not satisfied with the outcome of the clause 100 review,
then under clause 103 a person may apply to the Administrative Appeals Tribunal
(AAT) for a review of the internal reviewer's decision.
7.33
Submitters agreed that decisions should be able to be reviewed. Two main
questions were raised about the way the bill deals with reviews. First,
submitters queried why some decisions have been omitted from the scope of
review. Second, there were concerns raised about whether the appeal processes
provided in the bill were the most appropriate.
Scope of review
7.34
The South Australian Council of Social Services (SACOSS) noted that
while many decisions are subject to review, there is at least one instance
where the bill does not require the CEO to make a decision. As such, it is not
open to the review procedures in the bill. The Council suggested that decisions
under clauses 44 and 197 should be able to be reviewed:
In relation to s197, while it is reasonable to give the CEO
discretion not to make a decision if a request or application is not in the
required form, the “decision” not to make a decision should be reviewable. It
is conceivable, for example, that a person is unable to include all information
or documents in making an access request (s19). The “decision” not to make a decision
on the access request in this situation should be able to be reviewed. Further,
there should be a requirement to inform the applicant of what they have failed
to comply with.
In relation to s44, the legislation places strong emphasis
and importance on giving effect to the participants’ wishes, including in
relation to management of funding. However, when a decision is made under s44
to refuse a plan management request, that decision is not reviewable and there
is no requirement for reasons to be given. This is inconsistent with the
principles underlying the legislation and the clear rights of the participant
to manage their own plan.[22]
7.35
The Welfare Rights Centre identified several decisions that are not
subject to review in the bill:
For example, in the current draft there is no provision to
appeal debt recovery (s190 – 195). Also omitted from the list, and as
identified in only an initial review of the draft legislation (this is not an
exhaustive list) are sections: 13, 26(3), 30, 40(4), 44(2) and 77. Several of
these sections involve discretionary powers (such as special circumstances
waiver) and it is inappropriate that a single officer has the power to make
such a decision which is then not appealable.[23]
7.36
YDAS, while not identifying any particular clause of concern, supported
comprehensive review options:
All decisions of the CEO affecting the rights or interests of
a person with disability should be subject to merits review, not simply those
listed in this section. This is because each decision has the potential to
dramatically influence the life opportunities and choices available to the
person with disability.[24]
7.37
The SACOSS identified two approaches to change the scope of reviewable
decisions: to include additional decision points in the list in clause 99; or
to abandon the list and simply state that any decision by the CEO should be
subject to review.[25]
The Welfare Rights Centre recommended adopting the approach currently taken in
the Social Security (Administration) Act 1999, which essentially states
that all decisions are subject to review, unless specifically included in a
list of exemptions.
7.38
Some of the non-reviewable matters raised by submitters are not actual
decisions, or are easily remedied by actions other than seeking a review of the
decision (for example by submitting a new access request, which can be done at
any time). One of the other points raised by Welfare Rights Centre is in fact
listed in clause 99 (review of a decision under clause 30). The committee
sought clarification about why decisions under paragraph 44(2)(a) are not
reviewable and was advised that it is in fact reviewable, because it forms part
of the overall decision to approve a participants plan under subclause 33(2).
Subclause 33(2) explicitly draws into that decision the procedures agreed by
the CEO for managing the funding of supports, when it says that the statement
must include 'the management of the funding for supports under the plan (see
also Division 3)'. The division 3 in question includes clause 44.
7.39
The committee was satisfied that a sufficient range of decisions is
reviewable under the bill.
Who should review?
7.40
A number of submitters suggested there should be an intermediate stage
of review, while others did not comment on the number of stages, but queried
who should be responsible for each step. RIDBC argued:
We would certainly like to see a more independent review
process. It is not transparent to have an internal review process, even if it
is with a different person to the decision maker. There should be an interim
independent step prior to going to an Administrative Appeals Tribunal, which is
an onerous task for any person with disability in our experience. [26]
7.41
Carers Victoria thought that ‘the skill, training and expertise of AAT
members in complex disability matters appears limited’. It suggested that
reviews be conducted by an independent commissioner established for the
purpose.[27]
Vision 2020 Australia considered the proposed internal review process to lack
independence, while the AAT was not sufficiently accessible. Like Carers
Victoria, it advocated a stand-alone review body similar to Victoria's
Disability Services Commissioner.[28]
7.42
Others, such as Legal Aid NSW, suggested that there should be an
additional tier of appeal levels, between internal review and the AAT, as there
is in the area of social security administration:
[U]nlike in the social security jurisdiction, which provides
for review by the Social Security Appeals Tribunal (SSAT), there is no extra
tier of review between internal review and the AAT. Legal Aid NSW submits that
the SSAT provides for lower cost, quicker and more efficient review than the
AAT. As there is no equivalent forum available for reviews of NDIS decisions,
this might potentially lead to a large volume of requests to review decisions at
the AAT.[29]
7.43
During the hearing, Legal Aid NSW expanded on some of the reasons the Social
Security Appeals Tribunal (SSAT) might be a more appropriate body, not only for
people with disability, but also for the agency:
We would advocate for one because obviously internal review
picks up mistakes pretty quickly and cheaply, and maybe a third you will fix
up. But to give people that opportunity to appeal to someone independent but
without the cost of the AAT—at the AAT, of course, the agency has to be represented,
so that is another cost to the agency, whereas at the SSAT the agencies do not
appear. You have single members at the SSAT, and you do not have the same kind
of lengthy process. We recommend something like that.[30]
7.44
The ACTHCR similarly suggested replacing the AAT with a specialist
tribunal with more appropriate procedures, similar to SSAT.[31]
PWDA stated:
The procedures of the Administrative Appeals Tribunal are too
formal and legalistic for the purpose of NDIS appeals. It would be more
appropriate for a specific NDIS Appeals Tribunal to be constituted, perhaps as
a section of the Social Security Appeals Tribunal, or established separately
along similar lines. One advantage of this approach would be the distinct and
easily locatable case law that would develop over time; ensuring uniformity and
transparency in the application of CEO decision making across Australia. People
with disability and other people with the relevant skills, knowledge and
experience should sit on any NDIS Appeals Tribunal or panel.[32]
7.45
On the other hand, the committee heard from experienced witnesses who
thought the AAT could be most appropriate. The Commonwealth's Disability Discrimination
Commissioner stated:
The commission is supportive of decisions of the agency being
reviewed by the Administrative Appeals Tribunal, and we have set out in our
submission the importance of the provision of advocacy support for such
processes. We have done that because not only is it just patently unfair for a
person with a disability—45 per cent of whom are living in poverty—to have to
go up against a major national agency but also the provision of an advocate in
those circumstances facilitates the processes and often leads to a quicker and
greater resolution.[33]
7.46
Responding to these issues, the department explained that the AAT is
preparing extensively for their role. They have met with the department and
advisory group. Their intention is to utilise alternative dispute resolution
models and to establish protocols tailored to reflect the needs of stakeholders
in the area.[34]
The committee was also provided with some operational guidelines for the
handling of internal review. These addressed a range of issues that came up
throughout the inquiry, such as:
-
Indicating that a 'person dissatisfied with an adverse decision
can contact the original decision maker who can change the decision... This
should be useful in cases where the reasons for decision show that a relevant
matter may have been overlooked, misunderstood or given too little weight. It
may also be useful where the person had difficulty accessing or understanding
the reasons';
- Guaranteeing that decisions will be accompanied by reasons in
plain English; and
- Specifying that a support person can be involved in review
processes.[35]
7.47
The department reminded the committee that the review of the Act (under
clause 208) would look at the appeal mechanisms, such as the effectiveness of
review by the AAT, and whether they needed further development.[36]
Recommendation 25
7.48
The committee recommends that,
- the government monitor and consult with stakeholders on
complaints handling in launch sites; and
- when the review of the legislation is being conducted under
clause 208, the government consider the establishment of an external complaints
handling mechanism between internal review and the AAT.
Other
7.49
The committee noted a technical matter identified by the NSW Ombudsman
regarding the drafting of paragraph 99(j), where it noted 'the reference to
paragraph 74(4)(c) appears to be an error. The relevant reference appears to be
paragraph 74(5)(c)'.[37]
The committee expects this will already have been identified, but draws
attention to the matter in case it is yet to be corrected.
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