The Australian government is facing a massive class action – predicted to be on the same scale as the robodebt debacle – for the alleged unlawful exclusion of over 65s from the national disability insurance scheme.
The case, proposed by Mitry lawyers, could see the commonwealth on the hook for an estimated $800m a year for denying support to seriously and permanently disabled people based on their age.
Proponents point to the average $111,000 a year spent on an NDIS plan for seniors who qualified before age 64 – as opposed to $56,000 for the equivalent aged-care scheme – as a form of “pecuniary loss” suffered by those who applied aged 65 and over.
Rick Mitry, the partner of Mitry lawyers, told Guardian Australia the firm had only begun advertising the proposed class action on Saturday, with 70 or 80 people “keen – or some would say desperate – to join” the case it aims to launch by year’s end.
“These people are really suffering,” Mitry said. “They cannot understand why over the age of 65, at which age you need it the most, they wipe you out.
“If you have an accident at 64, you’re entitled [to the NDIS] but if the accident happens a few months later – you’re out.”
The national disability insurance scheme, established by the Labor government in 2013, only applies to people aged 64 and under at the time they applied for support. Those aged 65 and over are eligible for other programs.
The Mitry Lawyers class action, to be run by barristers Bret Walker and Richard Scheelings, argues the age bar was inconsistent with the convention on the rights of people with disabilities; that could render it unconstitutional because the commonwealth relied on the external affairs power to enact the NDIS.
The staggered state-by-state rollout of the NDIS also could have breached the constitution’s ban on discrimination based on state of residency, it argues.
Peter Freckleton, a member of the Post Polio Victoria board, told Guardian Australia he applied for the NDIS two years ago, citing lifelong paralysis in both legs as a result of having contracted polio as an infant in the 1950s pandemic.
“I couldn’t walk unaided, I had to wear leg braces and crutches. There was no doubt about the disability … The only thing they [NDIS] objected to was my age.”
Freckleton said aged-care payments were not “designed to deal with disability” – which can require big lump-sum costs like assistive technologies – forcing him to save payments over months to pay for a wheelchair.
“If I had been on the NDIS, [the supplier] would’ve signed up on the spot … [Instead] I arranged to accumulate aged-care payments … I had to wait to save enough to pay for the chair.”
Freckleton said the case would assist people with disability who “live in daily fear of being forced into residential aged care, although socially and cognitively they’re fine”.
“Those people need help as soon as possible. It’s just unconscionably cruel [they’re excluded].
“It’s disability discrimination with age as the pretext The real victims are people with permanent and severe disabilities.”
Another proponent of the case is former senior public servant Roger Beale, who also had childhood polio. He says the case “has significant budgetary implications and impacts thousands of disabled people and their families”.
“It could be the biggest and most morally embarrassing class action the commonwealth has faced since robodebt,” he told Guardian Australia.
The robodebt case, brought on behalf of welfare recipients who received computer-generated debt notices using unlawful income averaging, cost the commonwealth $1.8bn.
Beale estimates the cost of the NDIS exclusion at $800m a year, based on a “significant proportion” of the 140,000 people on the highest level of aged-care package who are “seriously and permanently disabled and would have been eligible for NDIS support but for the age exclusion in the Act”.
Mitry Lawyers is in discussions with a commercial litigation funder to pay for the case, with a deal expected in weeks after conditions about the number of participants are satisfied.
A spokesperson for the department of social services said the NDIS is “one part of a broader system of disability support”.
“People over the age of 65 are able to access support through the aged-care system.”