The applicant suffered serious spinal injuries when she fell from a balcony. She became a participant of the NDIS scheme in March 2017. She brought a personal injury claim following her accident and her claim was settled in 2020 for $3,000,000.
After the settlement of her claim, the National Disability Insurance Agency (NDIA) issued a recovery notice to claim back the benefits that had been paid to her because of her injuries. Those benefits amounted to $449,540.71 and are generally recoverable from a personal injury settlement relating to an injury which caused or contributed to a participant’s impairment.
However, the recoverable amount may be reduced where the Tribunal is satisfied there are ‘special (meaning unusual, uncommon, unfair/unjust or exceptional) circumstances’, so the Applicant brought an application to have the sum reduced. The Administrative Review Tribunal (ART) heard this application in September 2024 and handed down its decision in November 2024.
The Applicant put forward several reasons as to why her circumstances were special including that her personal injury claim was settled for much less than its full value, that her health was worsening, and that she wanted to buy a home to meet her disability-related needs and would not be able to afford to do so if she were made to repay the full amount.
The Tribunal member considered that the circumstances of the personal injury settlement conference were somewhat unusual and extremely stressful “in particular, the impact of the COVID pandemic on the way the settlement conference was conducted, and the fact a close family member was a defendant in circumstances where the insurer disputed liability” which “potentially contributed to the relatively low settlement she ultimately received”. She also noted that the Applicant had been forced into redundancy from her full-time work because of her injuries and she anticipated difficulties gaining future employment.
The Tribunal member finally concluded that the Applicant was at “significant risk of suffering financial hardship due to the very low settlement she ultimately accepted” which would not be “adequate to support her for the remainder of her life”, particularly once her social security preclusion period and the NDIS refunds were considered. As a result, she found that recovery of the whole of the amount would be unduly harsh and unfair to the Applicant so it was reduced to 5% ($150,000) of her personal injury settlement amount.