Richard Bradley is among thousands of National Disability Insurance Scheme (NDIS) participants locked in legal proceedings at the Administrative Appeals Tribunal (AAT).
The 31-year-old from Nambucca Heads on the NSW Mid North Coast lives with Klinefelter's Syndrome and dysphagia and is appealing decisions made regarding his plan and requested supports.
He is one of many who have sounded the alarm over their treatment by the National Disability Insurance Agency (NDIA) and its legal representatives during AAT proceedings and is among a growing chorus claiming the NDIA is flouting its obligation to act as a model litigant.
"They've breached the model litigant obligations (MLO) ... asking me to undergo independent medical assessments," Mr Bradley said.
Commonwealth agencies are bound by federal legislation to act fairly, ethically and honestly in litigation.
Mr Bradley has been dealing with the AAT for two years and said his battle demonstrated the NDIA, through its legal teams which include in-house lawyers, corporate law firms and the Australian Government Solicitor, weren't upholding this obligation.
"They're vexatious, emotionally manipulative... the odds are stacked against us and it's not a fair fight," he said.
Courts, advocates flag MLO breaches
In Mr Bradley's AAT case, Senior Member Kate Buxton noted the NDIA "invited the Applicant to simply withdraw his review application" and that Mr Bradley "was opposed to this course identifying, quite correctly, that he was being asked to give up his rights".
In another Federal Court decision in August, Justice Mortimer said "the [NDIA] would do well to remember its role" and as a "model litigant" should "assist the [AAT]... not appear... as a true adversary".
In June, a submission on the NDIA and the harmful impact of MLO breaches was made by a coalition of disability advocacy groups.
The submission highlighted the "fundamental power imbalance" in "David and Goliath" style battles.
It found the NDIA's conduct "often falls well short of adhering to MLO guidelines, resulting in unnecessary distress for people with disability (PWD)… placing some PWD at significant risk".
In a statement, a spokesperson for the NDIA said the agency had received 74 MLO complaints since 2019 and "acknowledge[s] that in the past we haven't always met the standard we aspire to" and "is making progress but recognises more needs to be done".
"The Agency has standing instructions and regular meetings with external legal services providers to continuously improve how we uphold our MLO," the spokesperson said.
Lawyer calls for urgent intervention
Victorian lawyer Jenny Draddy has acted for NDIS participants in AAT matters on a pro bono basis and felt compelled to speak out against "a completely broken" system that has "traumatised" her clients.
"There is a consistent pattern of not providing documents and hiding the way decisions are being made," Ms Draddy said.
"One client was subjected to invasive requests of medical records, with the NDIA ignoring the treating doctor's advice the records would not provide further information.
"The doctor said this would have a very serious and detrimental impact on my client's mental health, but the NDIA vigorously pursued the medical records."
She was hopeful promises of reform, and the addition of Paralympian Kurt Fearnley to the NDIA board would initiate change, as she believed the current state of affairs "brings the whole justice system into disrepute".
She wants the new NDIA board, Attorney-General's department and Office of Legal Services Coordination to proactively investigate MLO breaches and "disclose findings or recommendations for serious allegations".
Interest in a class action brewing
While the NDIS faces a recently launched class action relating to excluding people over the age of 65 from the scheme, interest in another potential class action is brewing.
Mark Toomey, whose adult son is a NDIS participant, said more than 250 people had joined his Facebook group expressing their willingness to join a class action against the NDIA for physical, mental and economic harm.
"A lot of members have been at the AAT for over two years," Mr Toomey said, with the members alleging they had experienced the NDIA behaving extremely badly with everything from denial of support to parents of children with disability being accused of mistreating them.
Mr Toomey and his pro bono legal team are in the process of engaging a law firm to get their class action off the ground.
