The Applicant submits that there are special circumstances in her particular case that warrant the exercise of the discretion in section 116 of the Act.
In essence she submits that the NDIS have been negligent, having endorsed fraudulent activities perpetrated by support coordinators by accepting its accounting of the expenditure of her NDIS funds during the relevant period. Her allegations regarding her failure to approve the payment of the NDIS payments that formed part of the past NDIS amount has already been canvassed above. She also alleges neglect of her health and wellbeing by the NDIS, resulting in two hospitalisations.
Further, she submits that the onus was on the Agency to provide quality care, service and equipment, including proper auditing of support coordinators given that 70% of all plans were managed by providers. She referred to Mr John Dardo, Deputy CEO of the Agency, who reported that 90% of plan managers had significant indicators of fraud. She submits that the Respondent knew that there was an exceedingly high probability that charges to her plan were bogus. She stated that there was an organised crime ring of plan managers and she is entitled to lodge a compensation claim against the Respondent because of this. She had tried to report her plan manager to the Quality and Safeguards Commission, but they refused to assist.
The Applicant went on to submit that the total compensation paid to her should be considered as not having been paid as the Respondent cannot substantiate the costs incurred to the proper accounting standards. A transaction list, without human intervention and scrutiny, cannot be relied upon to establish the recoverable amount. Instead, all source documents must be provided. In fact, under consumer law they are not entitled to the recovered amount. It was unlawfully taken from her.
Additionally, her funded supports did not even come close to what she should have been funded. The NDIS failed to provide for her and in doing so denied her health care which is a right enshrined in section 51 of the Australian . Her care was dangerously neglected by the NDIS; this is a special circumstance as the Respondent failed to show a level of service and provide her with a safe environment that would warrant payment of funds from her compensation.
In her response to the Respondents Statement of Facts, Issues and Contentions dated 4 February 2025 the Applicant stressed that the net compensation amount she received was $156,577.56. She submits that this is simply insufficient given her disability needs and life expectancy. She had initially sought compensation in the amount of $2,000,000, however had to settle for significantly less primarily because her lawyers were not prepared to risk litigation. She suggests that the neglectful provision of NDIS services and equipment may have reduced her chances for a larger settlement.
At hearing the Applicant declared that she is "happy to declare" that her financial circumstances are "fine". She explained that following receipt of the compensation funds she purchased two properties, renovated them and now lives in one and rents out the other for $150 per week. She stressed that she never sought NDIS funding for home renovations; rather she self-funded this cost to ensure that her home could meet her disability-related needs. She also owns a block of land valued at about $10,000 and about $20,000 remaining in savings. She is in receipt of disability support pension at the full rate. She has no other income or assets. Her only debt is for solar hearing, which she is repaying by instalment. She described her current health a "pretty good".
The Applicant has no dependents and lives alone. I accept that prior to her compensable injury she worked as a bookkeeper on a part-time basis and was also studying a Diploma of Accounting. She was living in a rural location and so there were limited income-producing opportunities. I accept the Applicant's evidence that she is not currently engaged in paid work.
I next considered the inclusion of legal costs in her settlement. The Applicant explained at hearing that the payment agreement with her lawyers was 50% of all compensation received. I accept the Applicant's submissions that her legal team waived their right to 50% of the recovered funds, apparently because they were so appalled by her treatment. It is also evident that her settlement did not include a portion for future earnings.
I find that a compensation reduction amount of about $26,60.38 will apply for a period of about 14.5 years.[70] The most recent NDIS plan is evidence covers the period 8 December 2023 to 7 December 2024 and is in the amount of $131,387.92.[71]
The Respondent suggests that the Applicant failed to take appropriate steps to rectify any issues she was having in relation to the provision of supports and that any hardship arising from her failure to accept delivery of the MedTech items was due to her own actions and therefore are not special or out of the ordinary.
I accept without hesitation the Applicant's testimony that she was dissatisfied with many of the NDIS supports and the support coordination she received during the relevant period. It is apparent that there was miscommunication between the Applicant and the Respondent which may in part explain the Applicant's frustration and distrust of the Agency.[72] It is trite to say that miscommunications occur between government bodies and members of the public and so I am not persuaded that miscommunication between the Agency and participants is uncommon or unusual. In any event, there is nothing to suggest that the Agency acted improperly. I am not persuaded that this aspect of the Applicant's circumstances distinguish her case from the usual case.
I also accept that there are NDIS service providers and support coordinators who do not act in the best interest of participants or who engage in fraudulent activity. In this case the Applicant specifically alleges that the transactions that the Respondent relies upon are fraudulent. This is a serious allegation and one that is not established on the material before me. Mere allegations, without any probative evidence in support, are not sufficient to persuade me that the recoverable amount did not represent funding provided by the NDIS in support of the Applicant during the relevant period. I conclude that allegations of fraud, without more, do not contribute to, or constitute, a finding of special circumstances in this case.
I am persuaded that the NDIS transactions in evidence accurately represent funds expended for the benefit of the Applicant. It is my view that any hardship that has arisen from the non-provision of the MedTech items is of the Applicant's own making. I do not find this itself, or in combination with other factors, constitutes special circumstances for the purposes of the Act.
The Applicant submits that she is financially secure. It is apparent that she carefully considered the expenditure of her compensation funds and was prudent in her investments. I find accordingly. I also accept the Applicant's testimony that her health is satisfactory.
There is no evidence before me to support a finding that the operation of the compensation provisions in the Act has led or will lead to an unfair or unjust outcome in the Applicant's case.
Overall, I am not satisfied that when considered individually or in combination the Applicant's circumstances are sufficiently special or out of the ordinary to warrant disregarding all or part of the compensation payment pursuant to section 116 of the Act.
This means that the decision under review is correct.
[2]
[11] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
[3]
[12] _Drake and Minister for Immigration and Ethnic Affair_s [1979] AATA 179. Further, In the recent case of G v MIBP[2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.
[4]
[36] R4, noting that the name of the business is recorded as Think Mobility; a Google search indicates that Think Mobility and MedTech are listed as having the same address is Toowoomba.
[72] By way of example, the Agency advised the Applicant that she could appeal to the AAT if dissatisfied with an original decision made by the Agency at T66.
Parties
Applicant/Plaintiff:
Angelakos
Respondent/Defendant:
Secretary, Department of Employment and Workplace Relations
Legislation Cited (5)
Review Tribunal (Consequential and Transitional Provisions No. [1) Act 2024
Appeals Tribunal Act 1975
Review Tribunal Act 2024
Disability Insurance Scheme Act 2013
Disability Insurance Scheme (Supports for Participants - Accounting for Compensation) Rules 2013
Cases Cited (14)
Hoolachan and National Disability Insurance Agency (NDIS) [2025] ARTA 715 (10 June 2025)