Darren O'Donovan Profile picture
Aug 31, 2018 5 tweets 3 min read Twitter logo Read on Twitter
AAT just smacked the Agency's approach to the health boundary. The need for the support was rooted in the disability not the health condition. I think we might see a JR on this one. austlii.edu.au/cgi-bin/viewdo…
Deputy President Constance gets the heart of the soft law nature of a lot of the NDIS approaches. The Agency does have a very clear policy on clinical versus function boundary. It just doesn't (in his view) reflect the language of paragraph 7.4 of the rules. Ouch.
Interesting the Agency didn't table any actuarial evidence about the cost of diabetic support for PwD who cannot self-administer injections. It is likely a pretty high figure - one they'll have to plan around. They tabled it financial projects in other cases, but not here.
Er, glad the tribunal didn't adopt the vision of the evidential onus on #NDIS participants that underpins this submission (!)
Great smackdown of onus here - this is a search for the preferable answer, you pony your info, they pony up theirs. Agency should focus on positively defending their approaches, not approaching it as a tennis match where families gaze at cryptic internal review outcomes

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More from @DarrenODonovan

Jul 17, 2018
This piece is good in nailing the core dynamic where AuDHA are trafficking in non-binding policy commitments when responding to questions about their legal powers of release. zdnet.com/article/tens-o… The language of s70 is flying all around the place. some thoughts...
Section 70 authorises releases for "protection of revenue". Revenue is a term of art; referring to taxes, ongoing charges. The selection of 'revenue', rather than expenditure limits the scope. Loss of revenue stream- not occasional overpayment or audit of government expenditure
Another ground in s70 is "prevention of a breach of a law imposing a sanction". One concern is that when used in Qld privacy law, it was viewed as covering "removal of a licence or entitlement, disciplinary action, the withdrawal of a benefit": oic.qld.gov.au/__data/assets/…
Read 8 tweets
Jun 1, 2018
QZHH v NDIA (Just published) a lengthy and significant tribunal decision on the position of carers in the scheme. Decisions set aside, big boost in support for complex family situation. austlii.edu.au/cgi-bin/viewdo…
Huge procedural import to Senior Member Parker's ruling that when a first plan is appealed successfully, it is not necessary for agency to consent to put the lost supports into the second plan. Instead the 1st plan is enlivened and must be completed with an adjusted review date
The second plan ceases to have effect due to the need to implement the tribunal having rewritten your first plan. This is complex and will have lots of side impacts
Read 4 tweets
May 15, 2018
Ombudsman report on #NDIS complaint handling just out. I'd firstly note the strange phrasing of the NDIA's acceptance of the recommendations, which seems to delink the findings from their legislative obligations. Signals a progressive rather than immediate realisation of them?
Ombudsman makes self-evident finding that reasoning by drop down box template (!!!!) is unacceptable. Needless to say this is a computer system (tail) wagging the legislation (dog). Boilerplate #NDIS 1st instance decisions are having to be unpicked, reresourced on appeal...
Recommendations 5 and 6 underline that ultimately, the Agency is going to have adapt to a more individualised form of reasoning in its template. I'd admit that this makes the harvesting of "categorical" data much harder (sorry scheme actuaries!) but it's what the law requires.
Read 5 tweets
Apr 26, 2018
So #centrelink phonelines, the importance of correcting errors&debt repayment have been in the headlines. Well, on cue comes an AAT decision that takes all those issues, adds in a computer fail & unproven attacks on the recipient's character: austlii.edu.au/cgi-bin/viewdo… #notmydebt
The decision relates to a FTB and Schoolkids bonus overpayment in a complex family situation. The debt at its centre was born from a computer malfunction, accepted as such by Centrelink. Just how far was the woman affected by it driven to clear her debt (and sadly, her name?)
The fact #centrelink or let's face it, Serco, make an error is not currently a defence to a debt being recoverable. The law is entirely compatible and facilitative of Centrelink's incompetence. Instead Australians have to show that the debt is "solely" attributable to the error
Read 11 tweets

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