IF v IG & Others

What did the Tribunal have to decide?

1. The Tribunal had to decide: 1. Does Mr HKO have a disability which prevents him from being able to make some important life decisions? 2. Should the Tribunal make a guardianship order and if so, what order should be made? 3. Who should be the guardian? 4. How long should the order last?
2. In deciding under (2) above whether to make a guardianship order, the Tribunal needed to take account of all relevant factors, including those listed in section 14(2) of the Guardianship Act 1987 (NSW). These relate to the views of Mr HKO, any spouse and unpaid carer, preserving family relationships, preserving cultural and linguistic environments and the practicability of services being provided without a guardianship order. The Tribunal could be guided by the principles in section 4 of the Guardianship Act, in particular treating Mr HKO's interests as its paramount consideration. The Tribunal ultimately has a broad discretion whether to make a guardianship order (IF v IG & Others [2004] NSWADTAP 3).

Does Mr HKO have a disability which prevents him from being able to make some important life decisions?

1. Mr HKO has a severe intellectual disability and is non-verbal. The Tribunal was clear that his disability prevents him from being able to make important life decisions.

Should the Tribunal make a guardianship order?

1. The Tribunal was not able to obtain any views from Mr HKO and he has no involved family or unpaid carer.
2. With the implementation of the NDIS, Mr HKO will shortly transition from his support being funded by Ageing, Disability and Home Care NSW (ADHC) to the funding coming from the NDIS.
3. To become a participant in the NDIS requires an access request from Mr HKO "or someone who is able to act on [his] behalf". (National Disability Insurance Scheme Act 2013 (Cth) section 18 (NDIS Act) and the National Disability Insurance Scheme (Becoming a Participant) Rules rule 2.1 (Cth)). The NDIS Operational Guideline - Gateway - Making an access request says that someone making an access request on behalf of another person must have "authority to sign" the request for the person as a guardian, person with parental responsibility for a child, agent or having otherwise been appointed as the person's representative.
4. In KCG [2014] NSWCATGD 7 at 32 and 34, the access request had been signed by a group home manager and the Special Counsel for the National Disability Insurance Agency (NDIA) said that, in practice, generally anyone can sign an access request on behalf of a prospective participant.
5. In relation to Mr HKO, Ms MN said that, in the absence of an involved family member, the NDIA required a guardian to make the access request and represent Mr HKO in the development of his participant plan of supports.
6. The Tribunal noted that, under the nominee provisions in the NDIS legislation, the NDIA could have appointed a nominee to represent Mr HKO in the development and periodical review of his participant's plan of supports. With the approval of the NDIA, a participant or their nominee may also manage a participant's NDIS funding. (NDIS Act Parts 2 and 5, National Disability Insurance Scheme (Nominees) Rules 2013 (Cth)).
7. In KCG at 60-61, the Special Counsel for the NDIA told the Tribunal that no nominees had to date been appointed in the NSW and Victoria NDIS trial sites though some had been appointed in Tasmania. Where a person lacked capacity to make planning decisions, the NDIA would enquire about the participant's wishes and other relevant facts and then make a decision about a plan.
8. In the absence of an involved family member or friend, there would presumably be no one for the NDIA to appoint as nominee for Mr HKO even if the NDIA had pursued this course. (Perhaps, the NDIA could have appointed as nominee Mr HKO's financial manager, the NSW Trustee, but, as discussed below, the issues facing Mr HKO were lifestyle decisions rather than financial ones.)
9. There appeared to be an inconsistency between what Ms MN had been told by the NDIA and what the Special Counsel said in KCG. The Tribunal will need to hear from the NDIA in subsequent cases whether its view is that a guardian should be appointed for participants who do not have an involved family member or other advocate to make an access request and participate in the planning process. However, the Tribunal did not need to resolve this issue here as it was clear that, in any event, Mr HKO currently needs a guardian to safeguard his rights and interests.
10. With Mr HKO having no family member or other advocate apart from paid service providers, the Tribunal saw a guardian as needed to make decisions and advocate for Mr HKO both through the NDIS eligibility and planning process and the parallel current process of ADHC tendering out its services to the non-government sector.
11. In relation to the NDIS, Mr HKO's first and second plans will be crucial to his ongoing interests and inclusion in the community. The first plan may be focussed on what a person needs "right now" and giving the person time to think about longer term needs and goals before the plan is reviewed in a year. (Developing your NDIS plan at http://www.myplace.ndis.gov.au/ndisstorefront/html/sites/default/files/Fact%20sheet%20-%20Developing%20your%20NDIS%20plan.pdf )
12. The pre-NDIA assessment information put together for Mr HKO by the ADHC staff identified a range of services that should be maintained or enhanced for him. Also, Ms MN told the Tribunal that the NDIA had advised that current allied health services would be funded in the first plan but, in the second plan, the NDIA would look closely at whether allied health services were required for disability support purposes or for health treatment purposes. If they were for health purposes, the NDIA would not fund them.
13. Ms MN also said that Mr HKO's health and physical state has been declining.
14. Mr Z from the Public Guardian correctly said that it was important to always look at whether there were more informal approaches available than guardianship. However, he said that there was a concern here that, without advocacy from family or elsewhere, Mr HKO may not get his maximum entitlement from the NDIS. As part of this, the appropriateness of Mr HKO's current accommodation should be considered. Mr Z's experience was that people under guardianship tended to get better plans.
15. 36,655 existing clients of disability services in NSW are due to transition into the NDIS in 2016-17 and a further 35,570 in 2017-18. (Bilateral Agreement between the Commonwealth and NSW - Transition to a National Disability Insurance Scheme at http://www.ndis.nsw.gov.au/other-documents/) The scale of this transition reinforces the need for a person like Mr HKO to have someone advocating for him in his transition.
16. In relation to the ADHC transfer of services, the Tribunal was aware that, between now and June 2018, the NSW Government's plan is to transfer all of its disability services to successful tenderers from the non-government sector. The Government plans include consultation with residents of supported accommodation in relation to which of a short list of providers they would prefer to take over the group of services of which their home is part. See Family and Community Services, Specialist Disability Services Pre-EOI Release 2016 at http://www.adhc.nsw.gov.au/__data/assets/file/0020/371810/Specialist_Disability_Services_Information_Release.pdf
17. Mr HKO already has the NSW Trustee as his financial manager. In KCG, the Tribunal analysed the respective roles that guardianship and financial management may have in relation to the NDIS. In Mr HKO's case, there was no live issue of his participant funding being managed by the Trustee rather than the NDIA. The Tribunal was clear that the NDIS related decision making and advocacy required for Mr HKO was focused on his lifestyle rather than his finances.
18. The Tribunal was clear that guardianship was needed to protect Mr HKO's interests through the NDIS first and second planning processes and the transfer of his current accommodation service to the non-government sector.
19. Primarily, the guardian needed to be able to make decisions and advocate in relation to services issues. However, the Tribunal also gave an accommodation power so that the guardian can consider whether any accommodation change should be pursued and health decision functions in view of Mr HKO's poor and declining health and the possible exclusion of some allied health services from Mr HKO's second NDIS plan.
20. In the absence of any alternative, the Tribunal was clear that it should appoint the Public Guardian.

How long should the order last?

1. In Mr HKO's circumstances, Mr Z suggested that a guardianship order should be for two or three years.
2. The Tribunal usually only makes initial guardianship order is for up to one year. However, the Tribunal could make an order for three years if Mr HKO had a permanent disability, was unlikely to become capable of making decisions for himself and there was a need for an order longer than one year. All these factors applied to Mr HKO. A longer order was needed due to the importance of covering at least the transfer of the ADHC facility to a non-government provider, the first and second NDIS planning processes and the bedding down of Mr HKO's support arrangements from those processes. The Tribunal made the guardianship order for three years.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 October 2016