Mark’s NDIS David & Goliath story – the “unwinnable” case

Mark is a person living with disability in Tasmania on a disability support pension. He has had to fight some battles over the years to get the proper support for his needs. He has learnt when to self-advocate and when to ask for help.

As Mark learned more about his rights, he found it increasingly difficult to navigate the systems supposed to support people with disability. Mark was incensed about the difficulties his peers faced.

Mark has applied and been rejected by the NDIA (National Disability Insurance Agency) at least four times since the introduction of the NDIS (National Disability Insurance Scheme).

In 2019 he made another application with supporting documentation, including various medical specialist reports.

With continued rejection from the NDIS, Mark had nearly given up. After observing unfairness, Mark sought help from Advocacy Tasmania to determine his options.

One of the options put to Mark by his Advocate was to provide further specialist information to the NDIS to support his application, and Mark decided this was his next step.

The beginning of the pandemic was not a great time to be trying to get specialist appointments in Tasmania. However, our advocate and Mark managed to get an appointment with specialists to provide another report to the NDIA.

Shortly after providing further reports in early 2020, and during a 14-day COVID lockdown in a hotel room, the NDIA called Mark to tell him they still needed additional information before they would assess his application.

They did not tell him that he had 28 days to provide it, and having not received any information in this timeframe, rejected his application.

At Mark’s direction, our advocate then contacted them and explained the situation resulting in an extension to provide additional information.

With the support of his Advocate, Mark was able to provide some additional information in the form of reports.

Mark said he felt “the system is designed to make you give up”, and as he was not in a financial position to provide even more information from private specialists, he told the NDIA to assess the application based on the extensive supporting information already provided.

Having heard nothing by October of that year, Mark asked his Advocate to call for an update.

They told him that they had no record of having received any additional information, and yet by that afternoon Mark was sent a rejection letter anyway.

Mark asked his Advocate to request a review of the decision, and a rapid NDIS internal review was conducted within a week which confirmed the rejection.

Having gotten this far and spent so much time waiting, Mark was determined to see this through and decided to appeal to the Administrative Appeals Tribunal. With the support of both Advocacy Tasmania and a community legal representative, Mark set about organising his evidence.

As his case was so protracted, and was pretty complex by this stage, costs were adding up on both sides. Mark now required further costly specialist appointments and reports, and the NDIA hired external consultant lawyers.

After some months, the community legal representative could no longer support Mark, citing resourcing issues but internally telling colleagues that his case was “unwinnable”.

Disappointed but not giving up, Mark persisted – he was learning a lot and knew this knowledge would be helpful in the future. Within his social and community circles, more and more people started sharing their stories of mistreatment within the system, and he felt less and less alone.

Having lost his legal support, and unable to afford a private lawyer, his friends and family advised him to withdraw his appeal and start a new application.

But Mark said he had an “overwhelming feeling that something needed doing about the systemic issues. I just kept thinking about potential participants with different disorders, like what if you were non-verbal autistic? How are you supposed to speak out? And what about people that can’t write or type? This realisation motivated me more than anything to continue.”

And, with our advocate’s support, Mark felt he had the energy and support to keep going. Mark said that our advocate “just knew that I could do it. They made me believe in myself and assured me they would stand by me – he said that if I don’t give up, they wouldn’t either.”

Mark meticulously amassed the evidence, each document referenced in a detailed timeline, and this helped keep his thoughts straight.

Mark wrote his statement of facts, issues and contentions as required by the Administrative Appeals Tribunal at this stage. It came together quickly, given the structure he had developed. He was able to express his opinions on personal and systemic issues while being careful not to say anything libellous, and this process developed his belief in his ability to write and self-advocate.

Then, the NDIA had 6 weeks to respond to Mark’s statement to the Administrative Appeals Tribunal.

On the day the NDIA’s response was due, they conceded, meaning Mark won his “unwinnable” case.

Where he might have felt elated, Mark just felt exhausted. He said, “the application and appeals process consumed my life. It affected me mentally and physically. I don’t know what I would have done without my advocate’s support. I was grateful for their unwavering empathy and respect for my perspective and knowledge – they boosted my self-confidence.”

Mark’s top 5 pieces of advice to anyone experiencing similar frustrations with the NDIA are:

  1. Document everything! Make sure everything is clearly labelled and referenced, including dates.
  2. Keep telling your story over and over, and get support from wherever it is available – think family, friends, services, politicians, and online communities.
  3. Realise your story is not just about you!
  4. Don’t think you must be quiet – it won’t do you any favours.
  5. Let your frustration help you keep going and dare to fight with any ability you have.

If you need some support to keep going, some help to win a battle or want to know your options reach out to us.