Sharp v Home Care Service of New South Wales  NSWSC 1319
Published on September 4, 2018 by Evelyn Garnett
In Sharp v Home Care Service of New South Wales  NSWSC 1319, Her Honour Justice Lonergan approved a settlement which involved a claimed repayment to the NDIS for past supports.
The settlement followed a claim for damages for the plaintiff, Tegan Sharp, aged 26, who has suffered profound physical and mental disabilities since birth, including cerebral palsy, and is deaf and blind.
Tegan was injured by hot water in the shower by a carer, sustaining terrible burn injuries, the subject of her damages claim.
Tegan received government supports for her lifelong disabilities, and since late 2017, those supports were funded through the NDIS. The NDIA served a notice requiring repayment of supports for past care from Tegan’s settlement.
Carroll & O’Dea Lawyers’ Wollongong, Senior Associate, Evelyn Garnett, who acted for Tegan, wrote to the NDIA seeking information and making submissions that in fact there should be no payback at all, since the past care related to her pre-existing disabilities rather than damages for her burn injuries.
The NDIA did not adequately deal with this correspondence, and indicated only that the sum of all past care would need to be repaid and that amount would be determined after settlement.
They provided various estimated repayment amounts of $30,000, $130,000 and $106,000.
The approval application came before Justice Lonergan. A Subpoena served on the NDIA was returnable at the hearing, but the NDIA failed to attend.
Her Honour found that no amount could be repayable to the NDIS as their supports related to her pre-existing disability, not an impairment for which the NDIS has provided any service, and the settlement comprised damages for unpaid care, to be provided by the family, not a registered care provider.
Her Honour observed “it is difficult to understand why an organisation constructed to assist in the funding and empowerment of people with disabilities to function in society, fails to respond to court process or to address proper, carefully considered correspondence from legal advisors to such persons” and it is “highly unsatisfactory that the plaintiff and her tutor, her family and their legal representatives are left in unexplained, bureaucratic uncertainty as to what amount is to be repaid to the NDIA/NDIS”.
Her Honour concluded that “… no sum at all is due to the NDIA/NDIS, either now or in the future, from the compensation figure” and asked that the CEO exercise discretion not to pursue repayments, should the NDIA consider there is a payback due contrary to her view.
This decision highlights the difficulties experienced by plaintiffs receiving NDIS supports and their families; the difficulties faced by solicitors advising on settlements; and the difficulty of the Court in considering approval because of the NDIA refusal to appropriately consider and determine the proper legislatively-sanctioned payback due to it.