NDIS recovery rights fall short

15th Mar 2013

People with disabilities can be pressured into legal action under provisions in the National Disability Scheme legislation passed in the House of Representatives yesterday.

“If a Scheme participant does not take up ‘required action’ to seek compensation then the CEO may take the action on their behalf regardless of the consent of the individual concerned,” ALA National President Anthony Kerin said.

“The original Senate Committee recommended NDIS participants be able to ‘elect to subrogate’ such decisions to the CEO, but what has been passed is a position where pressure can be exerted on individuals with disabilities and their carers,” Mr Kerin said.

He said the passing of such an amendment embedded in a national plan to improve and protect the lives of people with disabilities was completely inconsistent with the right to choose.

“The NDIS is meant to be a departure from paternalistic policy regarding disabilities yet the process surrounding recovery rights under the Scheme could be called coercive.

"It is also extremely unfortunate that government amendments and a Senate report released this week have been subject to no scrutiny or consideration by the House of Representatives before the legislation was passed.

"Even if the Senate Committee’s recommendation offering subrogation had been taken up – just how consensual is a choice with uncertainty as to the right to obtain independent legal advice, and the threat of NDIS support suspension hanging over a person’s head? That, in my view, is not a free choice.”

Mr Kerin said there are other flaws in the Scheme in relation to appeal rights and advocacy and there is still a big question mark about funding of the Scheme going forward and the intersection of the NDIS with other schemes that already exist.

“While the Senate report ‘hoped’ that the NDIS Rules would provide some ‘clarity’ on the treatment of compensation under the Scheme, this remains to be seen.

"Our hope is that the Senate will see where errors have been made and make amendments before passing this Bill into law. Hasty legislation is bad policy. People with disability deserve better than this, especially after so many promises have been made in relation to this reform,” he said.

Tags: Human rights Compensation Disability NDIS