// Ensuring a fair hearing- matters involving persons with a mental illness, cognitive impairment or intellectual disability National Disability Insurance Scheme Hearings COAT Victoria Conference 2016 Jill Toohey, Senior Member, Administrative Appeals Tribunal 1

// Introduction The NDIS commenced July 2013 and is being rolled out progressively Currently in the Barwon region in Victoria; other states and territories according to age and location Estimated that, when fully rolled out in 2019, 410,000 people with disabilities will be eligible for funded supports National Disability Insurance Scheme Act

// AAT Reviews The AAT can review 26 kinds of decisions made by the National Disability Insurance Agency. Applications mainly concern: access to the scheme: whether a person meets the disability requirements or early intervention requirements in the National Disability Insurance Scheme Act 2013; and whether funded supports are reasonable and necessary 3

// Disability Requirements Section 24(1) a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or to one or more impairments attributable to a psychiatric condition: s 24(1)(a) the impairment or impairments result in “substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking” at least one of the following: communication; social interaction; learning; mobility; self- care; self-management: s 24(1)(c) 4

// Objects and principles Give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities: s 3(1)(a) Enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports: s 3(1)(e) People with disability should be involved in decision making processes that affect them, and where possible, make decisions for themselves: s 5(a) The judgments and decisions they would have made for themselves should be taken into account: s 5(c) The Tribunal’s Practice Direction for the Review of NDIS Decisions is based on these objects and principles 5

// Some issues What should/can a tribunal do if it has reason to think that a person is not capable by reason of cognitive impairment, mental illness or intellectual disability of communicating his or her instructions or wishes? Are informally nominated/appointed representatives adequate? Are formally appointed representatives necessary? 6