Dr Larry Laikind is a decorated disability discrimination lawyer who has been commended for several human rights awards. He has 1% peripheral vision.
When the National Disability Insurance Agency (NDIA) rejected his claim for funds to modify his backyard to make it accessible he, like hundreds of others with disabilities, took his claim to the Administrative Appeals Tribunal (AAT) to have it reviewed.
But Laikind is not in a fair fight. As revealed in Senate estimates last week, the NDIA has spent $29 million on external legal services in the past financial year, up from $18.4 the year before. This doesn’t count the cost of its in-house legal team.
Of the $29 million, $13.4 million was in relation to cases before the AAT.
The NDIA has said legal costs have increased because it needed to provide information to the disability royal commission, although it is unclear how much this represents.
More than one-third of those who take their case to the AAT withdraw them with no result after meeting with NDIA representatives and its legal team.
No match for the NDIA’s lawyers
More and more people are taking the NDIA to the AAT to have funding decisions reviewed. Last financial year there were 1780 cases lodged against the NDIS, up by 48% from the previous year.
While the NDIA splashes out on lawyers — using external lawyers for a third of cases — just 20% of people with disabilities are legally represented at the AAT.
Before being heard in front of a tribunal member, the AAT organises conciliation. After meeting with the NDIA and its legal team, 33% of people withdraw and 65% settle. Of the more than 1500 finalised by the AAT last year, just 18 were heard in front of a tribunal member.
Disability advocacy group Leadership Plus CEO Geoff Southwell told Inq the process created a massive power imbalance and was unique to the disability sector.
“The AAT exists so you and I can go in to have someone else to look at [an issue] … without having to pay for a lawyer,” he says.
By setting up the pre-hearing practices, the NDIA has “set up a structure where representation becomes important because they’re not in front of a neutral member who is asking for the evidence”.
“Centrelink has thousands of cases every year without anyone needing representation,” he said.
Nearly all — 98% — of appeals against the NDIA lodged with the AAT never make it to a hearing. Details of those settlements remain confidential. Minister for the National Disability Insurance Scheme Stuart Robert has rejected calls to make the outcomes publicly available.
“Either their cases weren’t very strong to begin with, or they’ve almost been bullied out of [their appeal] … We just don’t know to what extent,” Southwell said.
Last year the NDIA awarded King & Wood Mallesons Legal Services $6.59 million for a six-month contract; Sparke Helmore Lawyers was awarded $4.69 million across nine contracts. The NDIA doesn’t disclose what the contracts were for.
The NDIA told Inq the confidential settlement agreements were in line with all other divisions of the AAT.
‘Like being a prisoner in Alcatraz’
Laikind wants to use his disability funding to make his waterfront backyard accessible so he can live independently and fish and canoe on the lake — goals which have been approved by the NDIA. The 64-year-old moved into the house in Robina, Queensland, in 2019 after inheriting it from his late father.
But the stairs leading down to the lake are uneven and steep, with bumps on the path sticking up seven centimetres. In a commissioned assessment of the property, a builder warned the backyard presented deadly risks.
“It’s a bit like being a prisoner in Alcatraz,” Laikind said. “The lake is right there, 20 feet away, but I’m not able to access it.”
It’s estimated the work would cost between $100,000 and $205,700. It includes stairs, a handrail, a level access point, and a pontoon. There is no public access to the lake, and hiring a disability support worker to take Laikind on outings would cost double the amount for the work over five years.
A mistake in the NDIA’s documents incorrectly suggested Laikind bought the house in 2005 and waited until he had disability funding to make modifications. It has argued the modifications are outside the scope of “reasonable and necessary” funding.
But rather than using an NDIA representative in the hearing to decide whether Laikind’s requests are reasonable, the agency has engaged law firm MinterEllison to argue its case. Last year the firm was paid at least $620,000 by the NDIA for a single contract. Only contracts worth more than $100,000 are made public, and the NDIA doesn’t list what the contract is for.
Laikind has a pro-bono legal team.
The department has not responded to questions about how much has been spent fighting Laikind’s case.
Where’s the choice and control?
Laikind has had 13 reports from occupational therapists, builders and architects prepared.
The NDIA has paid a construction company which doesn’t specialise in disability services to assess the property for safety risks, the minimum action to fix any risks, and whether costs quoted by contractors hired by Laikind were reasonable. It advised the company to disregard Laikind’s disabilities when making its assessment — a bizarre approach questioned during Senate estimates.
The AAT is considering whether an NDIA-funded occupational therapist should be allowed to assess Laikind’s backyard without his consent.
The NDIA has offered to pay Laikind $52,676 to cover the costs of selling his home and moving into another one.
All this goes against its principles of choice and control: choice over who gets to evaluate and assess the person with disabilities, and control over where they live.
Moving from his family home and learning the layout of a new area simply wasn’t feasible, Laikind said.
“I’m familiar with the neighbourhood, I’m familiar with the house, I’m familiar with the streets around so I can walk the dogs and I know where the audio-tactile devices are … It’s easy for me,” he said.
The case continues.
Is this model litigation?
The NDIA is expected to behave as a model litigant, acting honestly and fairly. In Senate estimates, Labor Senator Helen Polley asked whether Laikind’s case was an example of model litigation — questioning why a builder would be asked to disregard someone’s disabilities.
NDIA boss Martin Hoffman said he believed the agency was an example of model litigation.
The NDIA told Inq the legal costs “reflect the agency’s commitment to supporting participants and their right to appeal and the growth in the number of participants on the scheme”.
The agency was not able to comment on cases referred to the AAT.