The aims of the proposed National Disability Insurance scheme ( NDIS ) are laudatory. It is intended to remove the " lottery" aspect of making a claim for a disability. It is intended that a single set of rules apply in place of the disjointed mess that applies at present, filled with " if's, but's and maybe's ".
One clause that sounds reasonable to most people concerns protecting NDIS from having to pay out money when compensation is due from other sources. When it comes into force, it will be mandatory for those with any disability that can be construed as a work accident or the result of the negligence of others to pursue legal action to attain a financial settlement.
Like most well intended clauses, the " devil is in the detail "! It fails to spell out just who makes the decisions on what matters go to court and what responsibilities apply as regards the costs involved. This could very easily result in a backlog of cases jamming the court system and applicants for NDIS help denied income awaiting the outcome of court claims.
Suppose a resident slips on moss growing on the pavers in Wollongong Mall ? If this results in an injury .leading to a disability claim, NDIS would expect the applicant to seek litigation against Wollongong council for causing a preventable hazard by allowing that moss to grow. The outcome of court cases is always uncertain, and if this results in failure - who picks up the tab for the legal costs ?
There is a basic need for clarity. If NDIS accepts a claim and pays regular compensation during the time when a legal claim is before the courts, if that claim results in a legal settlement against a plaintiff - does the entire amount awarded go to NDIS - or just the portion dispensed under the time NDIS disbursed the claimants living expenses ?
The sticking point for many is the mandatory aspect of making a court claim. Legal fees are a financial hazard that most people avoid. When they are forced to take legal action to validate a NDIS requirement they are putting their home and assets on the line. That is not something the average person does lightly - nor without hesitation.
This requirement will be greeted with joy by the legal fraternity. There are already lawyers who advertise their services on a " no win - no fee " basis, which sounds safe and tempting. Unfortunately, that only applies to their legal fees. Should the case be lost, the fees of the other legal team can be awarded against the litigant - and that can run into many thousands of dollars.
As things stand, it looks like NDIS claimants will be on their own fulfilling the requirement to take legal action to claim damages under the NDIS rules. They will have the task of selecting a law firm and taking the court proceedings in their own name. This sets the scene for NDIS to become a lawyer's picnic - and for people with a disability claim to be saddled with a financial hazard.
A better - and fairer - outcome would be for NDIS to seek to recover money outlaid by way of disability pensions by using their own legal people to claim against those who caused the disability. That would ensure that only cases with a high likely success rate would proceed to court because the decision would rest with NDIS lawyers - and the onus of court costs would be lifted from the injured party.
This is a new scheme being tested by small trials about to get underway. The opportunity exists to refine the recovery procedure before it creates financial anguish for many - and delivers an outcome that may cripple a wider implementation !
No comments:
Post a Comment