Al-Baqqal and National Disability Insurance Agency - [2023] AATA 3717

Al-Baqqal and National Disability Insurance Agency [2023] AATA 3717 (14 November 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/2308
Re:Adel Al-Baqqal
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member D Barker
Date:14 November 2023
Place:Sydney

The Tribunal affirms the Decision under review.
...................................[SGD].....................................
Member D Barker
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – whether Tribunal has jurisdiction to consider reimbursement – insufficient evidence to determine whether supports are value for money – duplication of supports will not be funded – decision affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
CASES
Klewer v National Disability Insurance Agency [2023] FCA 630
Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430
QDKH and National Disability Insurance Agency [2021] AATA 922
Rogers and National Disability Insurance Agency [2022] AATA 2809
RTRH and National Disability Insurance Agency [2022] AATA 205
XXWC and National Disability Insurance Agency [2020] AATA 923
REASONS FOR DECISION
Member D Barker
14 November 2023

The Applicant is a 64-year-old man of Iraqi descent who is an Australia citizen, by grant. He has diagnoses of: depression, post-traumatic stress disorder (PTSD), type 2 diabetes (NIDDM), ischemic heart diseases, urological problems, polyarticular pain and cervical spine pain[1]. The Applicant became a participant of the NDIS on 29 June 2020 on the basis of impairments associated with a disability attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or an impairment attributable to a psychiatric condition[2].
[1] Report of Dr Samer Farnum, dated 13 February 2022, T1C; Report of Dr Bassam Moses, dated 12 October 2020, T1A.
[2] NDIA internal review (s100) of access decision (s20), dated 29 June 2020, handed up at hearing 24 August 2023.
The Applicant lives by himself in Sydney. His wife and five adult children remain living in Iraq[3]. The Applicant is in receipt of the Disability Support Pension[4].
[3] T7, p 64.
[4] T1B, p 9.
The Applicant made an application to the Tribunal on 21 March 2022[5] seeking a review of an internal review decision made by the National Disability Insurance Agency (the Respondent or NDIA).
[5] T1 - Application to AAT for Review of Decision.
The Tribunal’s jurisdiction arises under s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), operating in conjunction with s 103 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
The Applicant appeared before the Tribunal by telephone on 24 August 2023 to give arguments and evidence in support of the review application. This mode of participation was requested by him due to the impairments associated with his disabilities, making in-person participation impractical, and because he lacked the technical capacity to participate by video using the MS Teams platform. The Respondent was represented by Mr Nicholas Swan of Counsel.
The Applicant in this matter was self-represented and from a non-English speaking background. In the Tribunal’s verbal interactions with the Applicant, whether by Registry staff, during directions hearings, alternate dispute resolution events, or by the Member at hearing, the Tribunal and Applicant was assisted by interpreters in the Arabic and English languages.
For the reasons set out below, the Tribunal affirms the decision under review.
BACKGROUND
Statement of Participant Supports approved 16 July 2021
The Statement of Participant Supports (SOPS) approved by the Respondent on 16 July 2021[6] provided total funding for the Applicant of $182,908.48, covering the period 16 July 2021 – 16 July 2022. The budget encompassed core support funding of $153,379.15 Plan-managed for: “Personal continence products, activity related products and protectors to maintain health, wellbeing and participation in community activities. Flexible supports to enable maximum independence in personal activities of daily living. These supports can be provided in a range of environments, including but not limited to, the participants own home. Flexible support to explore and participate in community based activities of interest and to develop, build and maintain friendships”.
[6] T6.
The capacity building supports funded in this SOPS provided, among other things, $20,833.50 for: “Supports to work together within the home and community settings, utilising relevant disciplines to meet the plan goals and objectives. Funding includes any specific training necessary for using implementing strategies to provide for your safety in the home. An assessment and progress will need to be submitted to the NDIS prior to your next scheduled review”.
Statement of Participant Supports approved 9 February 2022
The Respondent subsequently completed an unscheduled review of the Applicant’s NDIS plan, pursuant to powers available to them by s 48 of the NDIS Act, and in a SOPS approved on 9 February 2022[7] provided total funding of $89,789.28, covering the period 9 February 2022 to 9 February 2023. The budget encompassed core support funding of $73,422.12 NDIA managed for: “STATED SUPPORT: Funding for 2 hours per day – assistance with self-care across weekday and weekend rates and public holiday rates; Funding for 2 hours per week assistance with personal domestic activities. Funding for 6 hours per week 1:1 social community access…This funding is applied in accordance NDIS Plan Management Rules 2013 Part 6.7 and may not be used to purchase alternate NDIS supports or services”.
[7] T7.
The capacity building supports funded in this SOPS included[8]:
(a)$3,103.84 for “STATED SUPPORT: $3,103.84 for Occupational Therapy – (equivalent to 16 hours), for a functional capacity assessment based upon a visual assessment with me for informing support needs and implementing strategies for improved independence in daily living. A copy of these reports and quotes must be submitted to the NDIS before my plan review including any change of circumstances request I may submit. This funding is applied in accordance NDIS Plan Management Rules 2013 Part 6.7 and may not be used to purchase alternate NDIS supports or services.”
(b)$7,473.72 for “STATED SUPPORT: Funding for development of a positive behaviour support plan, training and implementation. This support must be delivered by a registered behaviour support practitioner. A report detailing outcomes achieved is to be provided to the NDIA by the registered specialist behaviour support practitioner before this plan is due for review. This funding is applied in accordance NDIS Plan Management Rules 2013 Part 6.7 and may not be used to purchase alternate NDIS supports or services My Stated Supports funding will be: $5,145.84 NDIA-managed Specialist Behavioural Intervention Support. $2,327.88 NDIA-managed Behaviour Management Plan Incl. Training In Behaviour Management Strategies.”
[8] T7.
The Internal Review Decision
NDIA interaction file notes indicate that the Applicant contacted the Respondent on 24 February 2022 seeking an internal review of the SOPS approved by the Respondent on 9 February 2022.[9] The Respondent identifies the requested supports sought by the Applicant in the internal review request to be:
(a)An increase in funding in core supports to provide support worker assistance 24 hours per day, seven days per week; and
(b)An unspecified increase in funding in capacity building supports to provide ongoing therapies (physiotherapy, exercise physiology and psychology).[10]
[9] T5, p 45.
[10] Respondent SFICS, [6].
On 28 February 2022, a delegate of the Chief Executive Officer of the NDIA (the delegate) made a decision under s 100(6)(a) of the NDIS Act to confirm the SOPS approved in relation to the Applicant’s 9 February 2022 plan[11]. In explaining the basis of this internal review decision (the IRD), the delegate states that the information provided indicate that the Applicant requires increased support as a result of physical limitations due to his multiple health conditions. The delegate states that the Applicant met access criteria for the National Disability Insurance Scheme (NDIS) for his disability of PTSD only, and funding relating to his disability needs as a result of this condition has been provided in his current NDIS plan, and that funding for other health related issues and support required as a result is not most appropriately provided by the NDIS. The delegate further states that they did not consider the request for increased funding for 24/7 support/support workers, or capacity building and daily activities, to be able to be funded through the NDIS. This was because the delegate viewed funding for therapies such as physiotherapy and exercise physiology as being unrelated to the impairment resulting from the disability for which the Applicant met the access requirements for the NDIS, namely PTSD. The delegate also determined the funding for psychological therapy in the form of cognitive behavioural therapy was more appropriately provided by mainstream health services, rather than through the NDIS[12].
[11] T2, pp 29-33.
[12] T1D, pp 16-20.
The AAT review application
The Applicant, on 21 March 2022, applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the IRD. In the Tribunal’s review application form the Applicant explained the reason for seeking the review was that the reviewer made their decision without looking at the doctor’s reports and other evidence submitted to the Respondent in association with the internal review request.[13]
[13] T1– Application to AAT for review of decision.
Five telephone directions hearings (TDH) and a case conference took place between April and October 2022. On 22 November 2022, the Applicant and Respondent (hereafter when referred to collectively, referred to as the Parties) attended a further TDH, at which the Applicant raised an additional request for reimbursement of unspecified costs expended on supports he considered reasonable and necessary.[14]
[14] Respondent SFICS, [9].
During this period the Applicant had participated in an independent functional assessment, arranged by the Respondent, with Ms Marinell Manlapid, Occupational Therapist. Ms Manlapid completed her report on 2 September 2022.[15]
[15] Joint Bundle (JB), pp 247-272.
On numerous occasions during the period the review application has been before the Tribunal, the Applicant has indicated by way of phone call or email that funds available to him through his NDIS budget were depleted, or at risk of depletion, placing him at risk due to his ongoing support needs. The Tribunal responded to these communications by listing direction hearings where the Parties discussed the need to replenish funding for required supports for the Applicant and subsequently put to the Tribunal, by way of written proposed terms for agreement, requests for Orders from the Tribunal pursuant to s 42D of the AAT Act.
The Tribunal, on 6 September 2022 remitted the matter to the Chief Executive Officer of the Respondent for reconsideration pursuant to s 42D(1) of the AAT Act, subsequent to the request from the Parties to make this Order due to concerns of depletion of funds for supports required by the Applicant during the period the review application was before the Tribunal.
On 21 December 2022, the Respondent made an open offer by email to resolve the disputed need for increased daily support worker assistance and increased capacity building funds for allied health professional support, on the basis that it would fund 20 hours per day of support worker assistance and provide a significant increase to the Applicant’s capacity building budget.[16] The Parties subsequently put proposed terms for an agreement to the Tribunal and asked that the matter be remitted for reconsideration to the Respondent through the power available to the Tribunal under the provisions of s 42D of the AAT Act. The Tribunal made the requested Order on 23 December 2022 and on that date an interim plan for the period from 23 December 2022 to 23 June 2023 was put in place[17].
[16] Respondent SFICS.
[17] JB, pp 273-282.
By way of email dated 13 January 2023 the Applicant stated that he had needed to expend his personal money in order to provide personal assistance to better his quality of life. The Applicant explained that he used his money during the time that he did not have a plan or funds that supported his personal needs, which he considers unfair and “due to the poor management of NDIS”.[18]
[18] Applicant email of 13 January 2023, JB, p 181.
The Tribunal made a further s 42D remittal Order, at the request of the Parties, on 30 January 2023.
The Tribunal also wrote to the Parties, on 9 February 2023[19], noting the issues in dispute in this case are likely to have narrowed considerably as a consequence of the proposed terms of agreement filed with the Tribunal on 23 January 2023, in association with the request for further Orders pursuant to s 42D of the AAT Act made by the Tribunal. In this letter the Tribunal sought clarification of the specific details of the remaining issues in dispute, which the Tribunal understood may include, but not be limited to, the Applicant seeking reimbursement for funds from his savings which he has spent on supports when he took it that he did not have funds available from his NDIS plan budget.
[19] JB, pp 283-286.
In this letter the Tribunal noted that if an issue remaining in dispute is costs for appropriate supports which were met by the Applicant from his personal savings, the Tribunal may form the view that reimbursement for funds expended by the Applicant can be considered by the Tribunal in the current review. The letter noted that the Tribunal may however form the view that there was insufficient material before it to give an issue such as potential reimbursement of funds expended by the Applicant the consideration required in order to make a decision.
The letter put the Parties on notice that the Tribunal intended to issue Directions with regard to the filing of any evidence and arguments, in writing, upon which the Parties intend to rely in support of their claims. For the benefit of the Applicant, the Tribunal noted that evidence which may be relevant to an issue such as reimbursement of personal funds spent upon required supports could include, but not be limited to:
(a)details of the health, welfare or support service provider and the nature of the support, treatment, or assistance provided;
(b)dates of support, treatment or assistance provided;
(c)invoices from the health, welfare or support service provider;
(d)receipts showing funds paid to the health, welfare or support service provider; and,
(e)bank transaction statements showing the payment of the service provided by the health, welfare or support service provider.
The letter further noted that it would be useful for the Applicant to identify the total amount sought for reimbursement of the personal funds he contends that he has spent on required supports.
As a result of the reconsideration ordered by the Tribunal on 30 January 2023, the Respondent, on 13 February 2023[20], approved a SOPS providing total funded supports of $238,640.23 for the period from 10 February 2023 to 11 August 2023, which included the following supports agreed to be reasonable and necessary by the Respondent:
(a)20 hours per day of support worker assistance;
(b)24 hours of Psychology over 6 months;
(c)23 hours of Occupational Therapy over 6 months;
(d)26 hours of Physiotherapy over 6 months; and
(e)40 hours of Psychosocial Recovery Coaching over 6 months.
[20] JB, pp 287-296.
On 9 February 2023, the Applicant sent the Tribunal an email regarding the reimbursement issue, in which he stated that he spent his own money on his care and that the money came from compensation for a car accident in 2014.[21]
[21] Ibid, p 188.
On 13 March 2023, the Applicant emailed the Tribunal twice, stating amongst other things that he was still seeking reimbursement for:
…the money that I spent during the conflict, the health, recreational services and maintenance of the bathrooms, the medical chair, and what was documented by the occupational therapist. The divorced woman, by her decision, to end the problem.
…
No agreement has been reached with NDIS. Regarding the problems, I ask the court to consider my request to return my money that was taken unlawfully.[22]
[22] Ibid, pp 190-191.
The Applicant sent the Tribunal a further email on 24 March 2023 in which he confirmed that in addition to reimbursement of personal funds spent by him, he was requesting funding for recreational activities and a recliner chair.
I have told you before through a detailed email of my needs and the problem the MDIS [sic] caused me when they did not provide me with the correct plan/funds. I started using my personal money to take care of my needs. This money that was saved in the bank was from a compensation that I received in 2016 due to car accident in 2015. I request this money to be returned to me or I will not remove my claim. I used the money for transport, food/drink, cleaning, personal assistant, and medical expenses. I used to pay this money cash as I don’t have company to create invoices. The company that used to take care of me had stopped taking care of me as I don’t have enough funding. The current problem that I don’t have about the recent plan provided by NDIS is that it doesn’t provide recreational activities and recliner chair as requested by the OT sent by NDIS. These are my needs in detail. Please stop prolonging the situation and the injustice towards me. I request the court to make the final decision with no negotiation with the NDIS. In addition, I would also like to inform you that I attempted suicide last year due to this matter with the NDIS with reports from police and Westmead Hospital. I repeat I would like the final decision to be made by the court.[23] [emphasis added]
[23] JB, p 192.
On 24 July 2023, a further SOPS was approved by the Respondent, subsequent to their reconsideration decision, ordered by the Tribunal’s s 42D remittal Order of 20 July 2023[24]. The SOPS provided total funded supports of $254,468.65 for the six month period from 24 July 2023 to 22 January 2024, which included the following supports agreed to be reasonable and necessary by the Respondent:
[24] Ibid, pp 300-308.
(a)Core budget: $234,993.30 has been allocated for assistance with daily activities, to enable maximum independence and to assist with implementing capacity building skills in personal activities of daily living. These supports can be provided in a range of environments, including but not limited to my own home.
This funding is based on 20 hours of 1:1 support worker assistance per day inclusive of a sleepover support shift. A budget is also provided for irregular additional support needs.
(b)Core budget: $892.00 contribution to the cost of transport.
(c)Capacity Building budget: funding for allied health professionals and/or therapists to assess and provide support in assisting the Applicant to achieve his goals. This includes the following supports to work together within the home and community settings, utilising relevant disciplines to meet plan goals and objectives:
o$5,145.84 allocated for Psychology
o$4,461.77 allocated for Occupational Therapy
o$5,043.74 allocated for Physiotherapy
o$3,932.00 allocated for 40 hours of Psychosocial Recovery Coaching to provide support to people with psychosocial disability to build on their strengths, take control of their lives and address barriers to achieving their goals.
Requested Supports

The Parties have indicated to the Tribunal’s satisfaction that the SOPS approved on 24 July 2023 resolved two of the issues previously in dispute in this matter which pertained to increased core funding to provide support worker assistance and increased capacity building support funding to provide ongoing allied health therapy support.
The Tribunal understands that the remaining issues in dispute in this matter are as follows:
(a)reimbursement of costs expended by the Applicant on supports he considered reasonable and necessary.
(b)Funding for recreational activities.
(c)Funding for a recliner chair.
ISSUES
The issues arising in this application include:
(a)whether the requested supports are prohibited under NDIS Support Rules to be applied in the making of a decision to approve a SOPS; and if not
(b)whether the requested funding for recreational activities and a recliner chair are “reasonable and necessary supports” under s 34(1) of the NDIS Act and should be included in a new SOPS for the Applicant;
(c)should the Respondent reimburse the Applicant for his personal money spent on services he considered reasonable and necessary; and if so,
(d)the amount the Applicant should be reimbursed in relation to personal money he has spent.
LEGISLATION
The NDIS was established under the NDIS Act and operates in pursuit of the objectives set out in s 3 of the NDIS Act. Section 4 establishes general principles guiding actions to be taken under the NDIS Act.
A participant’s plan must be prepared in accordance with the NDIS Act and regulations made under s 33 of the NDIS Act. It must include a SOPS. The SOPS must be approved in accordance with the NDIS Act, and any regulations made under the NDIS Act, such as the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Support Rules).
Section 31 of the NDIS Act sets out several principles that apply in the development of a NDIS plan for a participant. The purpose of the plan is to state how the funds provided for in the participant’s supports are to be managed. The plan is the instrument that governs what funding the participant is entitled to receive under the NDIS. Each plan must have in it an approved SOPS and a plan does not take effect until a SOPS forming part of the plan has been approved by the CEO under s 33(4) of the NDIS Act. Specifically, s 33 of the NDIS Act sets out certain matters that must be included in a participant’s plan, including the participant’s statement of goals and aspirations (s 33(1)) and a SOPS, which is prepared with the participant and approved by the CEO (or his or her delegate), in accordance with s 33(2).
Section 33(5) of the NDIS Act requires that the CEO (or his or her delegate), in deciding whether to approve the SOPS under s 33(2), must:
(a)have regard to the participant’s statement of goals and aspirations;
(b)have regard to relevant assessments conducted in relation to the participant;
(c)be satisfied as mentioned in s 34 of the NDIS Act in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided;
(d)apply the NDIS rules (if any) made for the purposes of section 35;
(e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f)have regard to the operation and effectiveness of any previous plans of the participant.
Section 34(1) of the NDIS Act provides as follows:
34 Reasonable and necessary supports
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i)as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The phrase ‘reasonable and necessary’ is not defined in the NDIS Act. In National Disability Insurance Agency v WRMF,[25] the Full Federal Court observed that the phrase ‘connotes supports which meet a threshold which justifies – by reference to the context, objects, and guiding principles of the [NDIS] Act and the facts of the case – the expenditure of public funds for that support, for a particular participant’. Reasonable and necessary is a composite phrase, and each limb of which must be given work to do.[26] In McGarrigle v National Disability Insurance Agency,[27] Mortimer J explained the two limbs in the following terms:
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.
[25] (2020) 276 FCR 415, [151] (WRMF).
[26] Ibid, [149].
[27] (2017) 252 FCR 121, [91] (McGarrigle).
Determination of whether a support meets the reasonable and necessary criterion must be made based on probative evidence.[28]
[28] McGarrigle [93].
Chapter 4 of the NDIS Act deals with the administration of the NDIS, with Part 6 of this chapter providing for the review of decisions. Section 99 of the NDIS Act contains tables of decisions made under the NDIS Act which are reviewable decisions. These include decisions such as a decision to approve the SOPS in a participant’s plan,[29] or a decision to vary a participant’s plan.[30] Of relevance to this matter, Section 99 of the NDIS Act makes no reference to decisions about claims for the reimbursement of funds spent in excess of those specified in budgets within an approved NDIS plan.
[29] NDIS Act, s 33(2).
[30] Ibid, s 47A(1).
The Tribunal, under the provisions of s 103 of the NDIS Act, has the power to undertake a review of reviewable decisions made by an NDIA reviewer under subsection 100(6).
Part 5 of the NDIS Support Rules deals with the general criteria for supports, and supports that will not be funded or provided through the NDIS. Rules 5.1 and 5.2 of the Support Rules state:
5.1A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a)additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b)costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
The Tribunal has considered the Operational Guidelines published by the NDIA on its website;[31] specifically, those relating to the assessment of whether a requested support meets the “reasonable and necessary supports” criteria under s 34(1) of the NDIS Act.
[31] AND SUBMISSIONS
The Applicant filed the following documents with the Tribunal:
(a)NAB bank statement, dated 4 May 2016;
(b)Medical Discharge Summary from the Acute Mental Health Care Team, Paramatta CHC, dated 17 March 2022;
(c)Report from Occupational Therapist and Mental Health Clinician, Dr Yaser Mohammad;
(d)Medical certificate from Dr Samer Farhan, dated 17 June 2022;
(e)Letter from Dr Samer Farhan, dated 22 July 2022;
(f)Letter from Anjel Alias, physiotherapist, dated 22 July 2022;
(g)Email from Applicant to Respondent, dated 13 January 2023;
(h)Email from Applicant to Tribunal, dated 9 February 2023;
(i)Email from Applicant to Respondent dated 16 February 2023;
(j)Emails (2) from Applicant to Respondent, dated 13 March 2023;
(k)Email from Applicant to Respondent, dated 24 March 2023;
(l)Emails (2) from Applicant to Respondent, dated 25 March 2023;
(m)Emails (3) from Applicant to Tribunal, dated 25 March 2023;
(n)Email from Applicant to Tribunal, dated 28 March 2023;
(o)Email from Applicant to Tribunal, dated 30 March 2023;
(p)Musculoskeletal left shoulder ultrasound, dated 30 March 2023;
(q)Email from Applicant to Respondent, dated 29 April 2023;
(r)Medical certificate, dated 9 May 2023;
(s)Letter from Dr Samer Farhan, dated 23 May 2023;
(t)Report of Anjel Alias, physiotherapist, dated 26 May 2023’
(u)Report of Dr Yaser Mohammad, Occupational Therapist and Mental Health Clinician, dated 30 May 2023;
(v)Email from Applicant to Respondent, dated 30 May 2023;
(w)Statement of Hisham Al-Ahmad, dated 9 June 2023;
(x)Statement of Nawaf Al-Diraa, dated 9 June 2023;
(y)Change of details or change of situation form, dated 20 June 2023;
(z)Invoices from M & F Disability Services, various;
(aa)Letter from M & F Disability Services, undated;
(bb)Letter from Zenab Abdul Hamind, Director Royal Support and Care, undated;
(cc)Berg balance scale report, undated;
(dd)Report of Anjel Alias, physiotherapist, undated;
(ee)Post-hearing submissions, received 29 August 2023;
(ff)Email from Applicant to Tribunal, dated 10 October 2023; and
(gg)Emails (4) from Applicant to Tribunal, dated 8 November 2023.
The NDIA, being the Respondent in this matter, lodged the following documents with the Tribunal:
(a)Curriculum Vitae for independent Occupational Therapist, Marinell Manlapid, undated;
(b)Report of Marinell Manlapid, dated 2 September 2022;
(c)NDIS Plan (23.12.22-23.06.23), dated 23 December 2022;
(d)Letter from Tribunal to Applicant, dated 9 February 2023;
(e)NDIS Plan (10.02.23-11.08.23), dated 10 February 2023;
(f)Letter from AAT to Applicant, dated 24 March 2023;
(g)NDIS Plan (24.07.23-22.01.24), dated 24 July 2023;
(h)T-Documents (T1-T10) pp. 1-163, filed 31 March 2022; and
(i)Post-hearing supplementary submissions, filed 10 October 2023.
The Applicant called the following witnesses at the hearing:
(a)Hisham Al-Ahmad; and
(b)Nawaf Al-Diraa.
The Respondent called the following independent expert to give evidence at the hearing:
(a)Ms Marinell Manlapid, Occupational Therapist.
The Respondent lodged submissions prior to the hearing in the form of the Respondent’s Statement of facts, Issues and Contentions (SFICS), dated 27 July 2023.
The Applicant did not lodge formal submissions for the Tribunal’s consideration. At hearing the Tribunal put to the Applicant that it would take into account the material and arguments contained in the emails he had provided to the Tribunal in association with his review application and take these cumulatively to represent his position, his stated facts and contentions, which explain why he thinks and would contend that his requests should be granted.
CONSIDERATION
This review has had a complicated progression through the Tribunal. Factors which have influenced this have included the Applicant being self-represented and not having a working grasp of the English language. The Applicant suffers from impairments caused by his psychosocial disability, namely PTSD and other mental health conditions. These cause the Applicant anxiety and from my observations, result in a compromised affect tolerance capacity whereby the Applicant frequently became stressed to the point where communication, with the assistance of interpreters, became difficult. The difficulties encountered by the Applicant were also impacted by physical impairments affecting him, including incontinence, which contributed to his request to participate in the hearing by telephone.
I acknowledge the Applicant’s circumstances are difficult and that he has found the review process at the Tribunal frustrating and at times bewildering. I am of the view that it is safe to presume the Applicant’s interactions with the NDIA would also have had similar frustrating and confusing elements.
The Tribunal does not have the role of case managing or advocating for review Applicants and whilst this is appropriate, the overall experience of a person in the Applicant’s particular circumstances is unfortunate. In making these comments I am mindful that at no stage of the review process, whether in the preparation stage to bring this matter to hearing, or during the hearing itself, was there apparent involvement of, or contribution from, a support co-ordinator who has been and may remain involved in this case. Given the central role of support co-ordination in assisting the Applicant achieve goals he is seeking to achieve through participation in the NDIS, as outlined in following paragraphs, I consider the absence of input from a support co-ordinator during the review process to be unfortunate.
It is not apparent why the voice of support co-ordination has been silent during the review, and I would readily acknowledge a support co-ordinator taking the role of advocate for a NDIS participant they are engaged to assist has itself complexity in terms of possible conflict of interest issues. However, support co-ordinators can provide valuable insight into an Applicant’s circumstances and also assist them navigate their interactions with both the Tribunal and Respondent during the stage where a matter is preparing to progress to hearing. In the current matter, it is unfortunate that the Applicant has not on the face of it had the benefit of such assistance.
The Tribunal notes that it issued Directions following the hearing, on 24 August 2023, establishing a timeline for the Applicant to provide any further documentation in support of the review by 21 September 2023 and for the Respondent provide to the Tribunal and Applicant any submissions in reply by 5 October 2023. The Tribunal acknowledges that the supplementary submissions filed by the Respondent were five days late, but does not consider there to be a reason to not have regard to these submissions and further notes that the Applicant has himself had the opportunity to review the Respondent’s supplementary submissions and made comment as he saw fit. The Tribunal is not of the view that the Applicant has been denied procedural fairness by this process.
What goals is the Applicant striving to achieve through participation in the NDIS?
The Applicant’s NDIS Plan identifies goals that he wants to achieve through his participation in the scheme. The following goals remain consistent in each Plan and SOPS approval discussed in these reasons:
(1)Short-term goal – “I would like individual support to improve my mood, functional capacity and overall wellbeing”. To be achieved “By continuing my support to help me manage my anxiety and regulate my emotion to regain my life back and to connect with my community”. To be supported in working to achieve this goal “By my SC [support co-ordinator] and my allied health therapist”.
(2)Short-term goal – “I would like assistance to attend to domestic duties and maintain a safe home and to attend to my self care to maintain my health and wellbeing”. To be achieved – “By getting the support to help me with my daily activities like self care and home maintenance, also I need assistance with my meal preparation”. To be supported in working to achieve this goal – “By my SC to help me connect to a support service”.
(3)Medium or long-term goal – “I would like to access and engage activities I enjoy to build friendships and become involved in the community”. To be achieved – “By getting the support to help me attend activities in the community that interest me and to attend to my appointments”. To be supported in working to achieve this goal – “By my SC to help me connect to a support service”.[32]
[32] Applicant NDIS Plan approved 16 July 2021, T5 pp 51-53
Further goals identified in the Applicant’s Plan approved on 9 February 2022 added the following goals:
(4)Medium or long-term goal – “I would like to learn to speak English”. To be achieved – “Through accessing language support services offered through Adult Migrant English Program”. To be supported in working to achieve this goal “My support co-ordinator can assist me to link to this mainstream support service”.
(5)Medium or long-term goal – “I would like to improve my walking ability”. To be achieved – “Through accessing supports offered by mainstream health services and through accessing Physiotherapy or exercise assistance through my own personal funds”. To be supported in working to achieve this goal – “My support co-ordinator can assist me to progress a health care plan through my GP”.
(6)Medium or long-term goal – “I would like to improve my daily living skills”. To be achieved – “Allied health services can inform support needs and strategies for increasing my independence”. To be supported in working to achieve this goal “My support co-ordinator can assist me to engage with services”.[33]
[33] Applicant NDIS and SOPS approved 9 February 2022, T7, pp 64-66.
The aforementioned goals (1)-(6) have remained consistent and are documented in subsequent plan and SOPS approvals on 13 February 2023[34] and 24 July 2023[35] . In accordance with the requirements of s 33(5) of the NDIS Act, the Tribunal has had regard to these goals and aspirations when considering the requested supports which remain in dispute in this matter.
[34] JB, pp 290-291.
[35] Ibid, pp 302-303.
The reimbursement of personal money spent by the Applicant
The Tribunal has considered the Applicant’s request for reimbursement of personal money that he claims he by necessity spent on his personal care needs, over a period of time commencing from when the SOPS approved by the Respondent on 9 February 2022 reduced his NDIS budget.

The Applicant contends that the money that was spent was approved by the Respondent[36] and that the supports he required and which were approved were all in place. The Applicant said that after the support workers were working for around 22 to 23 days the Respondent sent new forms because they said that they need to be signed and to be renewed. The Applicant gave evidence at hearing that after they did as requested, the Respondent “actually did a flip back on that and they, till now, they haven’t paid any support workers, despite that we provided receipts and we’ve got witnesses”.[37]
[36] At hearing the Applicant frequently referred to the Respondent as ‘the NDIS’, which in the experience of the Tribunal is not unique in matters of this type. The Tribunal has inferred when references to the NDIS pertained to the NDIA, being the Respondent, or the NDIS scheme itself.
[37] Transcript, p 6 [3-16].
With respect to whether the Applicant can have personal money that he has spent reimbursed through the NDIS for supports he claims were reasonable and necessary, the Respondent contends that there are two separate and independent reasons why the Applicant cannot succeed in relation to this support:
(a)There is insufficient evidence for the Tribunal to be satisfied that the support is reasonable and necessary;
(b)Alternatively, the Tribunal does not have jurisdiction to grant the relief sought by the Applicant.[38]
[38] Transcript, p 6, [27].
The issue of whether the Tribunal can order the reimbursement of personal funds spent by, or on behalf of a participant of the NDIS is discussed in another review undertaken by the Tribunal in XXWC and National Disability Insurance Agency (XXWC),[39] which whilst dealing with a NDIS participant impacted by different disability conditions had the circumstance where reimbursement was sought for personal funds expended to pay for support services accessed by the participant. In XXWC DP Forgie held:
Whatever I decide in this matter, it is clear from the position agreed upon by the parties regarding an additional 18 hours of EIBI that the budget for Improved Daily living in the Plan would be increased. Had that budget appeared in the Plan as originally approved, XXWC’s parents would have been paid by the Agency directly for the EIBI up to 18 hours up to the total budget. As it is, XXWC’s parents have paid the costs of those 18 hours during the life of the Plan from their own pocket. They now ask me to make an order that the Agency reimburse the costs of EIBI for those 18 hours each week.
I have decided that I cannot make that order. The reason why I cannot do so lies in the limits of the power that I have to review decisions of the Agency. Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (AAT Act) provides that an enactment may provide that applications may be made to the Tribunal for review of a decision made in the exercise of powers conferred by that enactment. The NDIS Act is such an enactment when it provides in s 103 that applications may be made to the Tribunal for review of a decision made by a reviewer under s 100(6). Decisions that a reviewer may make under s 100(6) are made after a person directly affected by a reviewable decision asks the decision-maker, in this case the CEO, to review that decision. The decisions that come within the description of a “reviewable decision” are those set out in ss 99(1) and (2) of the NDIS Act.
…
There is nothing in the scope of the decision that must be made or in the matters, to which regard must be had, that deals with payment of supports approved in a statement of participant supports. That means that payment is not a matter within the scope of the Tribunal’s power to review. I would also note that decisions about payment are not specified as reviewable decisions in s 99 of the NDIS Act. As I cannot review any decisions about payment, I have no power to order that any amount of XXWC’s parents’ expenditure be reimbursed. That is not to say that the Agency itself does not have power to reimburse XXWC’s parents for monies they have expended on EIBI but what it requires to authorise reimbursement is a matter for it and its auditors.
[39] XXWC and National Disability Insurance Agency [2020] AATA 923.
With respect to the issue of reimbursement, the Tribunal (currently constituted) also has the view that its jurisdiction is limited to the scope of the primary decision maker,[40] and that there is nothing in the scope of a decision under s 33(2) of the NDIS Act which deals with payment of supports. Accordingly, any request for an order explicitly requiring reimbursement would be outside the Tribunal’s jurisdiction. That is, the Tribunal does not have the power to make such an order. This is because decisions regarding payments are not reviewable under the present statutory scheme.[41]
[40] Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430, [50]; QDKH and National Disability Insurance Agency [2021] AATA 922, [10]; Rogers and National Disability Insurance Agency [2022] AATA 2809, [18].
[41] XXWC, [124].
Although the Tribunal cannot order reimbursement it does have the power to determine that a support is reasonable and necessary in any Plan and associated SOPS it has jurisdiction to review, including a past SOPS. Pursuant to s 39 of the NDIS Act, the Agency must comply with the SOPS in a plan. If the Tribunal finds a support is reasonable and necessary, in accordance with the provisions of s 34(1) of the NDIS Act, and a participant can sufficiently demonstrate that they have expended personal funds relating to the acquisition of that support, then the Agency is required to reimburse that participant.[42] What evidence the Agency considers is necessary to provide reimbursement is solely a matter for itself and its auditors.[43]
What were the types of support the Applicant claims were provided to him and paid for from his own money?
[42] RTRH and National Disability Insurance Agency [2022] AATA 205, [163].
[43] XXWC, [124].
The letter from the Tribunal to the Parties, sent on 9 February 2023[44], highlighted that it would be difficult for the Tribunal to consider issues relevant to required supports the Applicant may have paid for from his own money without reliable information about both the types of support accessed by the Applicant and the cost of those supports. By way of response the Applicant, in an email dated 13 March 2013, made reference to money spent on “the health, recreational services and maintenance of the bathrooms, the medical chair, and what was documented by the occupational therapist. The divorced woman, by her decision, to end the problem”.[45] With respect to this statement, the Tribunal is mindful that English is not the Applicant’s first language and that the aforementioned response may conflate things he paid for from his own money and the further supports, such as ‘the medical chair’ that he is requesting be funded by the NDIS.
[44] JB, pp 283-286.
[45] JB, p 191.
In a further email dated 24 March 2023 the Applicant states in part “I used the money for transport, food/drink, cleaning, personal assistant, and medical expenses”.[46] The Applicant was asked about this email at hearing and he gave evidence that he requires a special diet due to his medical conditions and that support workers would either cook or purchase meals for him that met these dietary requirements. The Applicant said that he also needed to purchase pants due to his incontinency and that the money spent was only for his medical needs. He explained that he had “at least three medical appointments on a weekly basis with the GP, sometimes two times a week with the psychiatrist and the other medical appointments”.[47]
[46] Ibid, p 192.
[47] Transcript, pp 34-35 [39-16].
In his evidence at hearing and in his examination of witnesses called, Mr Hisham Al-Ahmad and Mr Nawaf Al-Diraa, the Applicant has highlighted a period from February 2022 to July or August 2022 as the period in which he was required to pay for supports needed by him from his own money. The Applicant has identified Mr Al-Ahmad and Mr Al-Diraa as the persons who provided him with support during the period he was paying for these supports from his own money.
Material filed with the Tribunal in association with the review application includes letters from Mr Al-Ahmad and Mr Al-Diraa, both dated 9 June 2023 and with identical content, which state in part “I am pleased to be writing this letter in support for Adel Al-Baqqal that I have supported him during the period - February 2022 to August 2022 as a support worker during this period, I have supported Adel, and he was happy during that time.”[48]
[48] JB, pp 224-225.
In his evidence to the Tribunal Mr Al-Ahmad stated that he provided services to the Applicant, such as cooking, taking him out to withdraw cash money and personal care such as taking him to the toilet or showers.[49] In his evidence, Mr Al-Diraa stated that “I was doing the basic needs and looking after him, helping him shower, taking him where he needs to go, to doctor appointments. Whatever he needed.”[50]
[49] Transcript, p 13 [40-44].
[50] Ibid, p 23 [42 -46].
An email from the Applicant, dated 8 November 2023, refers to money spent by him in relation to transport to medical appointments. The Applicant states that the ‘source of the money that was paid from the insurance as a result of a car accident’. The Tribunal has inferred this to be from the funds withdrawn from the CBA Goal Saver account on 9 June 2022, discussed below. In the email the Applicant notes that he required assistance from support workers whom he paid from his own money to take him to health related appointments, such as with doctors or physical therapists[51]. The Applicant also states that he declined to use funding for up to two hours of support worker assistance which was available to him at that time and instead used his own money.
[51] Physical therapy appointments on 14 March 2022 and 18 March 2022 are evidenced in emails from Applicant, dated 8 November 2023.
In considering this evidence cumulatively, the Tribunal is satisfied the supports the Applicant claims to have required and paid for from his own money, over a period from February 2022 and August 2022 include assistance with the following:
(a)Meal preparation;
(b)Purchasing of meals;
(c)Personal care – toileting;
(d)Personal care – showering;
(e)Transport to medical appointments;
(f)Translation of correspondence and other documents;
(g)Cleaning;
(h)Medical expenses; and
(i)Transport to banks or ATM machines and assistance withdrawing cash from such facilities.
Do the identified supports satisfy the reasonable and necessary criteria in s 34(1) of the NDIS Act?
Section 34(1) has six subsections. Each subsection of s 34(1) needs to be satisfied and if the provisions of one subsection are not met, then s 34, the essential requirement that a requested support be reasonable and necessary, is not satisfied.
Sections 34(1)(a) and 34(1)(b) pertain to whether support will assist a participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations and assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation. The support that it is reported to have been provided to the Applicant by Mr Al-Ahmad and Mr Al-Diraa included assistance with personal care, meal preparation, cleaning and transport to appointments and social activities. With respect to these factors, the Tribunal finds that this sort of support is consistent with goals identified in the Applicant’s NDIS Plan and encompass assistance to facilitate the Applicant’s social participation. The Tribunal finds that the criteria under s 34(1)(a) and s 34(21)(b) of the NDIS Act are satisfied.
Has the Applicant demonstrated that he expended personal funds relating to the acquisition of supports?
As is mentioned in an earlier section of these Reasons, determination of whether a support meets the reasonable and necessary criterion must be made based on probative evidence. The need for findings made by the Tribunal to be based upon reliable, probative evidence can be extended, beyond consideration of whether the provisions of s 34(1) are satisfied, to all findings of fact made by the Tribunal in the course of undertaking the merits review.
A difficulty the Tribunal perceives in relation to the Applicant’s contentions, with respect to personal money spent on supports which should have been funded through the NDIS, is substantiating his claims regarding this issue. This is because in order for the Tribunal to consider whether s 34(1)(c), the requirement the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, is satisfied in relation to supports provided by Mr Al-Ahmad and Mr Al-Diraa, it is necessary for the Tribunal to have reliable evidence regarding the cost of services provided by Mr Al-Ahmad and Mr Al-Diraa.
Amongst documents filed with the Tribunal by the Applicant are copies of invoices[52] and a letter from M & F Disability Services[53], which the Tribunal understands is a registered NDIS provider. The letter pertains to an unpaid invoice for services provided to the Applicant between 5 December 2022 and 22 December 2022. The invoices pertain to this period and a following period, 6 January 2023 to 29 January 2023. The Tribunal is not persuaded this evidence is relevant to the period, between February 2022 and August 2022, in which the Applicant claims he spent his own money paying for required support.
[52] JB, pp 234-235.
[53] Ibid, p 236.
In response to questions from Counsel for the Respondent, the Applicant gave evidence that he has no written records to show the amounts he paid to Mr Al-Ahmad and Mr Al-Diraa over the period from February 2022 to August 2022., but claimed that he could remember how much he paid them and how much money he had in the bank.[54] When asked how much he would say he paid Mr Al-Ahmad and Mr Al-Diraa in total, the Applicant made the following comments:
So I know how much I – excuse me – I got as a compensation for the accident I had. So I spent all their money for not only for the support workers, but also for taxi fares, for pads, for personal care. I had $62,000 compensation. Plus, I brought with me from Iraq when I came as a refugee, $30,000 and I provided a statement for all of that money. I’ve spent everything and again I submitted another statement how much money I have now. So I spent everything on the services, personal care that I needed.[55]
I’m able to say how much I was paying them on a weekly basis. Sometimes 300, 400 or $500 as I said. Some weeks, I couldn’t pay much and I still owe them money because the money I had, I have spent it. And I still need to pay them money.[56]
It was the taxis – lease plus the taxi fares. I had – I have three appointments on a weekly basis. The GP and the physio and the specialist and I – even what I’m earning or getting $600 benefits it’s barely enough. I used to pay from that as well. And I run out of all the money. And beside the payment that was made directly to the doctors – I’ve got all the expenses and I left with my money.[57]
With my condition, you can appreciate that I cannot remember even what happened yesterday. Nor, due to my sufferings and what I am going through, I wouldn’t be able to say how much in total. But because – because it’s all informal. It wasn’t through a business or a company. So they would tell me, ‘We provided you this week with 10 hours or 15 hours and I will pay accordingly. And that’s how it was and I needed that or such services. Plus, the benefits I’m receiving from Centrelink as well, I didn’t even include that as well. And plus, I didn’t mention that I had to apply on two occasions for advanced payment so I can meet my expenses because I was way far behind[58].
[54] Transcript, p 28 [30-40].
[55] Ibid, pp 28-29 [43-5].
[56] Ibid, p 29 [9-12].
[57] Transcript, p 29 [15-21].
[58] Ibid, p 29 [26-36].
At an early stage of the review process the Applicant provided the Tribunal with a transaction statement from an account in his name with the National Australia Bank (NAB) covering the period 5 March 2016 to 4 May 2016.[59] In so far as financial transactions from 2016 have possible relevance to the current matter, pertaining to costs incurred by the Applicant in 2022, the Tribunal understands an amount, $62,430.20 deposited into the account on 6 April 2016, reflects a payment connected to a compensation settlement for injuries suffered by the Applicant in a motor vehicle accident in or around 2015.[60] Of relevance to consideration of the portion of funds held in this account would have been available to the Applicant to spend of required supports in the February 2022 to August 2022 period, within a fortnight of when these funds were deposited into the account, a cumulative amount of $22,740 had been withdrawn.
[59] JB, p 164.
[60] Email from Applicant to Respondent 24 March 2023, JB, p 192.
The Applicant has provided the Tribunal with transaction statements from Commonwealth Bank (CBA) accounts held in his name. An extract from a Goal Saver account transaction statement covering the period 20 May 2022 to 6 December 2022 shows that $91,240.48 was deposited by cheque into this account on 20 May 2022, with a further cash deposit of $11,000.00 occurring on 8 June 2022, followed by an amount of $100,100.00 being withdrawn from the account the following day, 9 June 2022, leaving a balance of $1.92 in the account.[61]
[61] JB, p 182.
When asked at hearing to explain the purpose of the funds withdrawn from the CBA Goal Saver account on 9 June 2022, the Applicant gave evidence in part that:
Because it was a hassle going to the bank all the time, so I asked them to – that I want to withdraw my money. So I withdrew the money. I left them with me at home to pay for my – the expenses in cash. And plus I did then deposit another amount in a different bank.[62]
…
So initially, when I received the money, it was deposited into National Bank. Then I use Commonwealth Bank, then it was transferred to Westpac and then back to National Bank.[63]
…
So the money it was set aside to – the aim, the purpose was to show the Tribunal that I had this money aside. I was getting $300 interest rate with the Goal Saver account and also, I was using the money for my children if they needed any support or any help. I kept the money as well aside for my funeral and for the sake when for any funeral expenses but now I have nothing. It’s all gone.[64]
[62] Transcript, p 32 [12-16].
[63] Ibid, [20-23].
[64] Ibid, [28-34].
The Tribunal then asked the Applicant to respond to the concern that in providing these bank statements to show that the money was depleted, where he had just shifted it to a bank account that he had not provided the Tribunal with a copy of, he may be trying to make it look like all the money has been depleted where in fact, it was not. By way of response the Applicant gave evidence as follows:
I initially took the money from the Commonwealth Bank and actually I gave it to someone who promised me that he would use the money and he would pay me interest rate on it. But when he didn’t pay me any interest rate, I did take the money back and I put them in the Commonwealth Bank and I used the money. And you can check how much I received with the National Bank for the compensation. And for how much money I’m left with. So it’s logic, because I never worked in Australia and all I’m getting was $600 from Centrelink, so how would I spend that money on the support workers? From where would I get the money other than the money I have? So I was spending the money until it’s all gone.[65]
[65] Ibid, pp 32-33 [44-6].
With respect to the funds withdrawn from the Applicant’s CBA Goal Saver account on 9 June 2023, the Tribunal is not persuaded the Goal Saver and NAB transaction statements establish those funds are either now depleted, or that any portion of them were paid to Mr Al-Ahmad and Mr Al-Diraa for support services provided by them to the Applicant in the February 2022 to August 2022 period.

Further to this, the Tribunal asked the Applicant what he wished understood from transaction statements provided by him from a CBA Smart Access account in his name covering a period from 1 October 2022 to 31 December 2022 in which there were no apparent transactions showing funds spent upon support services. By way of response, the Applicant said that he provided these account statements:
Just to show the Tribunal that I had some money there and I was spending the money, it was unfair for me to spend such money for my own support while I should have been getting that from NDIS. The aim was to show that I had the money from the insurance and as a result of the car accident and that I have received that money and I am spending the money.[66]
[66] Transcript, p 33 [22-28].
With respect to the transaction records from the Applicant’s CBA Smart Access account, the Tribunal is not persuaded they support his claim that funds from this account were spent on support that he required which should have been funded through the NDIS. This is for two reasons, the first being that the account statement shows transactions occurring between October 2022 and December 2022, a period which does not correspond with the February 2022 to August 2022 period in which the Applicant has claimed to have paid for required support from Mr Al-Ahmad and Mr Al-Diraa. The second reason being, as mentioned above, there are no transactions in the account statement showing funds withdrawn to pay for required support services. Whilst there are transactions showing payments at newsagents, chemists, supermarkets and food outlets, the Tribunal is not satisfied these reflect payments for the sort of supports reasonably and necessarily funded through the NDIS.
In support of his reimbursement request the Applicant called Mr Hisham Al-Ahmad as a witness. Unfortunately, the Tribunal has unresolved concern as to the reliability of aspects of Mr Al-Ahmad’s evidence. This is because in his evidence to the Tribunal Mr Al-Ahmad stated that he provided services to the Applicant between February and July 2022 and also during 2023, with the “knowledge of the NDIS and I received all my entitlements in 2023, but in 2022 I never received any entitlements because he didn’t have any funds.”[67] [emphasis added]. In response to a question from Counsel for the Respondent as to whether he was at the time he provided support to the Applicant in 2022 a registered NDIS provider, Mr Al-Ahmad made the following comment:
Yes, I was – I was – I wasn’t registered. That’s correct, but I couldn’t leave him – see him and leave him like that. He was in a lot of pain and nobody to support him. He had no support. I had to take him to toilet and for personal care and to the bank to withdraw money, and until now he hasn’t paid me anyway. [emphasis added]
[67] Ibid, p 14 [16-20].
This is not consistent with information contained in emails from Mr Al-Ahmad and another informal support worker, Mr Al-Diraa, filed with the Tribunal by the Applicant in June 2023, in which they both state “I have supported Adel, and he was happy during that time. In addition, he had paid my payment from his pocket.” [emphasis added].[68]
[68] Transcript, p 14 [16-20].
Further inconsistency from Mr Al-Ahmad arose from his evidence at hearing that whilst his fees over February 2022 to July 2022 were $500 per week, he did not issue invoices for this service and the amount the Applicant paid him in cash from his own money varied from one week to another. He stated “I was providing the care five days a week, and some weeks he would pay me $300; some week he would pay me $400; some weeks $500; and some weeks only $150.”[69] Mr Al-Ahmad gave evidence that he was unable to say how much in total he was paid in cash by the Applicant, which the Applicant would mostly withdraw from a bank or ATM when taken there by Mr Al-Ahmad[70], but that it was not the full amount he was owed, as the Applicant was unable to pay this amount.[71]
[69] Ibid, p 16 [25-45].
[70] Ibid, p 20.
[71] Ibid, p 17 [0-25].
Upon the Tribunal seeking clarification from Mr Al-Ahmad about an apparent inconsistency in this evidence and other evidence provided by him that he was paid cash amounts of between $300 to $400 per week by the Applicant for the support he was providing, Mr Al-Ahmad denied making the statement that the Applicant did not pay him at all and that what he had said was “he didn’t pay me my full entitlements”.[72] He contended that what he meant was that the Applicant did pay him, “but not fully”.[73]
[72] Ibid, p 19 [36-39].
[73] Ibid, pp 19-20 [20-4].
On the Tribunal’s assessment of this evidence, Mr Al-Ahmad has claimed to not have received ‘any entitlements’, that is no payment, for assistance provided by him to the Applicant over the February 2022 to August 2022 period because the Applicant had no funds, and as well that he was ‘paid his payment from the Applicant’s pocket’, that is from the Applicant’s own money and also that the Applicant made partial payment for services provided by Mr Al-Ahmad resulting in Mr Al-Ahmad having an unspecified amount still owing to him for support provided to the Applicant over the February 2022 to August 2022 period.
The evidence provided by Mr Al-Diraa at hearing with regard to this issue is similar to that provided by Mr Al-Ahmad in that he assisted the Applicant over the February 2022 to August 2022 period and “He was paying me cash during that time. He hasn’t paid me the complete – so he still owes me money”[74], yet he has previously prepared an email in which he had stated, in an identical manner to Mr Al-Ahmad “I have supported Adel, and he was happy during that time. In addition, he had paid my payment from his pocket.”[75]
[74] Transcript, pp 23-24 [43-3].
[75] Ibid, p 14 [16-20].
The Tribunal is not satisfied that adequate explanations were provided by the witnesses or the Applicant to explain the inconsistency in relation to payments received by them for support provided to the Applicant over the February 2022 to August 2022 period. The Tribunal accepts that both Mr Al-Ahmad and Mr Al-Diraa did support the Applicant during that period, but is not satisfied that there is reliable evidence upon which findings can be made as to fees charged and payments made in relation to that support. In forming this view the Tribunal has also noted and accepts the evidence of the Applicant that he has no records of payments made by him and that this is consistent with the evidence of Mr Al-Ahmad and Mr Al-Diraa that they issued no invoices or receipts for payment, and are themselves unsure of the cumulative amount they were paid or the purported amounts they are still owed for support services provided to the Applicant.
The Tribunal acknowledges that the Applicant in or around the March 2022 period may have received assistance to get to medical and allied health appointments. The Tribunal also acknowledges that the Applicant considered the reduction in funding for support worker assistance in the NDIS Plan and SOPS approved in February 2022 to be unreasonable and to have left him with inadequate funds to meet his required needs. to be …. However, the Tribunal is not persuaded that there is reliable evidence as to what amounts the Applicant may have spent on transport related expenses. For reasons discussed above, the Tribunal does not place weight on the Applicant’s claims as to funds withdrawn from the CBA Goal Saver account on 9 June 2022 representing personal funds spent on required supports. The Tribunal is also not satisfied an adequate explanation has been provided for the Applicant declining to use the funding which was available to him through his NDIS budget before having recourse to his own personal funds.
In emails received 8 November 2023 the Applicant has also referred to payments made to doctors. The Tribunal notes that the NDIS does not cover costs associated with medical services which would ordinarily be paid through the Medicare system.
The Tribunal acknowledges the Applicant’s claim to have paid cash for support required by him during the February 2022 to August 2022 period and this is consistent with the evidence from Mr Al-Ahmad and Mr Al-Diraa. The Tribunal also acknowledges that the Applicant’s use of cash in such circumstance is not entirely implausible. However a result of the use of the cash economy, especially in a circumstance where there is no corroborative evidence such as contemporaneous invoices or receipts and unresolved evidentiary concerns regarding the witness’ evidence about payment for their services, is that the Tribunal is not satisfied it can make probative findings of fact on the Applicant’s claims, the witness’ oral evidence or documents submitted after the hearing which purport to detail the Applicant’s expenses[76] and the support services provided by Mr Al-Ahmad and Mr Al-Diraa.[77]
[76] Documents filed with the Tribunal by the Applicant on 29 August 2023.
[77] Ibid.
The Respondent has contended that the Applicant has failed to identify or provide evidence relating to the costs of these supports (such as invoices or payment receipts). This information is necessary because the Tribunal is required to consider whether the supports represented value for money by s 34(1)(c) of the Act. This analysis cannot be conducted without evidence as to the cost of the supports.[78].
[78] Respondent SFICS, [28(c)].
Can s 34(1)(c) - the value for money criterion be met?
The NDIS Operational Guidelines[79] discuss how to assess whether a requested support is, relevant to the requirements of s 34(1)(c) of the NDIS Act, value for money. The Operational Guidelines are policy and therefore are not binding on the Tribunal in the way that the NDIS Act and Support Rules are. However, the Tribunal would only disregard them if there were a cogent reason to do so. With respect to assessment of s 34(1)(c), the Operational Guidelines state:
[79] the support value for money?
All supports we fund under the NDIS need to be value for money. This means the cost of the support is reasonable, when we consider the benefits of the support and the cost of other supports.
Making sure that your supports are value for money is one of the ways we keep the NDIS financially sustainable. This means we make careful decisions about funding so that we make sure the NDIS exists for future generations. It’s also one of our principles.
When we decide if the support is value for money, we consider:
·if other supports would achieve the same result at a substantially lower cost – this means there should be a real or material difference in cost
·if there’s evidence that the support will substantially improve your life stage outcomes and benefit you in the long term
·if the support will likely reduce the cost of other supports over time
·how the cost compares to other supports of the same kind in your area
In the circumstance where there is not reliable information as to payments made or fees charged for support provided to the Applicant over the period from February 2022 to August 2022, the Tribunal accepts the Respondent’s contention that it is not possible to conduct the analysis required, as to the cost of the supports, in order to be satisfied s 34(1)(c) is met.
In respect of the supports provided to the Applicant between February 2022 and August 2022 by Mr Al-Ahmad and Mr Al-Diraa, s 34(1)(c) of the of the NDIS Act is not satisfied. Therefore, because the criteria in section 34(1) are cumulative, it is not necessary for the Tribunal to consider whether the further mandatory criteria under ss 34(1)(d), 34(1)(e) or s 34(1)(f) of the NDIS Act are met.
As the Tribunal has determined s 34(1) of the NDIS Act is not met with respect to the support provided to the Applicant in February 2022 to August 2022, the Tribunal is not satisfied that this support can be included in a previous SOPS that it has the jurisdiction to review. In this circumstance the Tribunal does not consider it necessary to make findings as to which particular SOPS it may have the power to review and therefore has not in these reasons considered implications which may arise in relation to this factor from a recent decision of the Federal Court of Australia in Klewer v National Disability Insurance Agency[80], which provided obiter comments on the effect of a s 42D remittal Order on the decision under review.
[80] [2023] FCA 630.
The requested funding for recreational activities
The Applicant makes reference to this requested support in an email received from him by the Tribunal on 25 March 2023[81]:
The current issue I do not have with the latest plan introduced by the NDIS is that it does not provide leisure activities and a chair lift as required by an OT sent by the NDIS.
[81] JB, p 195.
While taken at face value the double negative in this sentence would appear to indicate the Applicant does not have a problem with the lack of provision for funding in his current NDIS Plan and SOPS for recreational activities or a recliner chair, the Tribunal is satisfied that this is contrary to the view that he intended to convey. At hearing the Applicant confirmed he was seeking to have funding for assistance to undertake leisure and recreational activities included in his NDIS plan. The Applicant advanced no further arguments in support of this requested support at hearing, or in documentation he has provided in support of the review.
Dr Yaser Mohammad, Occupational Therapist and Mental Health Clinician, prepared a report[82] at the Applicant’s request in which it is stated the Applicant requires continual assistance and support to engage in meaningful activities that promote increased participation in life and access to community. The Applicant requires assistance to deve,lop and explore new interests. A further report from Dr Mohammad, prepared in May 2023 states that the Applicant:
…has difficulty responding to social situations and forming interpersonal relationships. Hence, he needs a support worker to accompany him to his outings and assist him with shopping, social participation and attending his medical appointments. [the Applicant] needs to access recreational and social activities to improve his socialization and alleviate his low mood.[83]
[82] Report of Dr Yaser Mohammad, Occupational Therapist and Mental Health Clinician, dated 6 June 2022, JB, p 169.
[83] Report of Dr Yaser Mohammad, Occupational Therapist and Mental Health Clinician, dated 30 May 2023, JB, p 215.
Mr Medhat Metry, Psychologist, prepared a report[84] at the Applicant’s request in which it is stated the Applicant would benefit from continued funding to increase his social support and community participation to achieve his goals and to become more active. Mr Metry comments that the Applicant also needs to gain more exposure outside of his home so he can become more socially involved within his community.
[84] Report of Mr Medhat Metry, Psychologist, dated 16 May 2023, JB, p 205.
The Tribunal has reviewed the report of Ms Manlapid, Occupational Therapist, who prepared the independent functional assessment[85] requested by the Respondent. In a section on Community Access, Ms Manlapid comments:
[The Applicant] reports spending most of his time at home and is very socially isolated due to his limited social supports and difficulty with engaging in his community without physical and emotional support. He reports only going out for shopping trips and medical appointments, and his friend assists with transport to medical appointments where required. [the Applicant] reports he would like to spend more time in his community and engage in leisure activities or outings of his interest[the Applicant’s] limited social participation and community engagement is also a contributing factor to his deterioration in mental health and wellbeing, as he has very limited informal and formal social supports.
Due to his limited mobility and walking tolerance, [the Applicant] requires physical assistance with all community access tasks. He may benefit from provision of assistive technology such as a wheelchair to improve his outdoor mobility and increase his overall community and social participation.
[85] Report of Ms Marinell Manlapid, Occupational Therapist, dated 2 September 2022, JB, p 247.
In relation to what disability support Ms Manlapid considered the Applicant requires with social interaction Ms Manlapid comments:
[The Applicant] would benefit from 1:1 assistance with social interactions and redeveloping his ability to feel comfortable and socialise with new and unfamiliar people. [the Applicant] reports feeling high levels of anxiety and stress when in unfamiliar situations and would require support to communicate himself in social situations and to make new friends and develop relationships over time.
At hearing Counsel for the Respondent noted that Ms Manlapid’s recommendations includes time for the support worker to take the Applicant and assist with leisure and recreational matters. The Tribunal is satisfied this accurately reflects recommendations made by Ms Manlapid, who specifically recommends that the 1:1 care support required by the Applicant encompass assistance with “social engagement and attendance to community outings when [the Applicant] feels well”’.[86]
[86] Report of Ms Marinell Manlapid, JB, p 269.
The Respondent contends that the Applicant has not identified the recreational activities he seeks funding to attend or engage in, or whether he seeks funding for a support worker to assist him in undertaking such activities.[87] Further to this, the Respondent contends that to the extent that the Applicant seeks core support worker assistance to attend recreational activities, his current NDIS Plan contains 20 hours per day of support worker assistance which can be used flexibly for community access or personal care needs. The Respondent notes that this level of support worker assistance was funded by the Respondent based on the recommendations of the independent Occupational Therapist Ms Marinell Manlapid, who in her report dated 9 February 2022[88] states that the Applicant would benefit from “up to” 20 hours of 1:1 care on a daily basis to be used for, among other things, tasks such as: “weekly shopping assistance”, “travel to community outings of his interest” and “daily social engagement”[89] and contends that accordingly, Ms Manlapid’s recommendations were prepared on the basis that the 20 hours of support worker assistance recommended would encompass participation in recreational and/or community activities.
[87] Respondent SFICS, [43].
[88] JB, pp 247-272.
[89] Report of Ms Marinell Manlapid, JB, pp 258-259.
The Respondent contends that any additional funding for a support worker would amount to a duplication of supports and would be prohibited by r 5.1(c) of the NDIS Support Rules.
Is the requested funding for recreational activities prohibited under the Support Rules?
Unlike the Operational Guidelines, the Support Rules are binding on the Tribunal. This means the Tribunal does not have the discretion to disregard these rules. As the Respondent has pointed out to the Tribunal, r 5.1 details when a support will not be provided or funded under the NDIS. Rule 5.1(c) states that a support will not be provided or funded under the NDIS if it duplicates other supports delivered under alternative funding through the NDIS.
The Tribunal is satisfied that the evidence before it establishes that the Applicant requires assistance to facilitate his participation in community activities and that such participation is consistent with goals and aspirations he hopes to achieve through his participation in the NDIS. However, the Tribunal is also satisfied that there is funding in the core budget of the current SOPS which can be applied flexibly to provide the Applicant with this support. The Tribunal is satisfied that facilitating involvement in community activities through the provision of 1:1 care support in the current SOPS is consistent with recommendations made by Ms Manlapid and indeed those made by Dr Mohammad and Mr Metry.

Section 33(5)(d) of the NDIS Act provides that the decision maker, which is now the Tribunal, must apply any methods and have regard to any criteria prescribed by the NDIS Rules in relation to the manner in which the reasonable and necessary supports will be funded. The Tribunal finds there is existing funding in the current NDIS Plan and SOPS to facilitate the Applicant’s participation in community outings for his interest and his social engagement. The Tribunal further finds that the provision of further funding through the NDIS for recreational and leisure activities would constitute a duplication of supports delivered under alternative funding through the NDIS.
The consequence of these findings and the requirements of s 33(5)(d) of the NDIS Act is that the requested support for funding for recreational and leisure activities is prohibited due to the action of r 5.1(c) of the Support Rules.
The requested funding for a recliner chair
In an email to the Respondent on 13 March 2023, the Applicant refers to there being no agreement between him and the Respondent on “problems, which includes the medical chair and what was documented by the occupational therapist”[90]. The Applicant then makes reference to a recliner chair as a requested support in an email sent to the Respondent on 24 March 2023[91].
[90] JB, p 190.
[91] Ibid, p 192.
At hearing the Applicant spoke to types of assistive technology, where in phrasing a question to Ms Manlapid he said:
Yes the OT did see my situation, she did observe what I am going through, and she did, for a short while, while doing the assessment, the functional assessment, she noticed how hard it is at home for me to move around without a mobile scooter. Mobile scooter is essential for me to move around, especially on the street. And she noticed and she realised that I need a special bed for my condition. And also she saw the bathroom, and also with the toilet seat, and the bathroom tub, needed two people for me to be moved and mobilised to the bathroom. It was such a difficult time. Don’t you agree that I need the technology to assist me in this dire situation OT?[92]
[92] Transcript p 9 [36-46]
By way of response to this question Ms Manlapid gave evidence that:
Yes, so I am understanding that [the Applicant’s] condition, under NDIS, is mental health, more than physical, however from the functional assessment I did observe that he had much difficulty physically, and that did impact his mental health and wellbeing. In saying that, I think he mentioned a scooter, I definitely – I did not recommend a scooter, but I did suggest that he may be suitable for a mobility aid for outdoor access. And yes, I did make recommendations for lower cost items such as shower chairs, toilet frames, and things like that to help him inside the house.
Comments in Ms Manlapid’s report relevant to assistive technology, encompassing what could be construed as a medical or recliner chair, include:
Mobility: [the Applicant] was observed to have difficulty with independently mobilising inside his home and was observed to require physical assistance from 1x person and his single point walking stick to mobilise from room to room. He was observed to have poor gait and have limited standing balance and tolerance when not supported. He was observed to be quick to fatigue when asked to walk around the home and to stand transfer from furniture in the home. [the Applicant] reports a walking tolerance of approximately 10m and is unable to manage outdoor and community mobility without significant assistance. [the Applicant] was attending Physiotherapy sessions twice a week, prior to the COVID-19 lockdowns and was making slow progress with his physical function. Due to his reduction in funded supports, [the Applicant’s] mobility, physical function and mental health and wellbeing have all significantly deteriorated, and he has required more support in the home and community.[93]
Transfers: [the Applicant] was observed to require 1x assistance with sit to stand transfers from low heights, particularly his bed, couch and toilet, due to reduced lower body strength, balance a Transfers: [the Applicant] was observed to require 1x assistance with sit to stand transfers from low heights, particularly his bed, couch and toilet, due to reduced lower body strength, balance and use of only the right upper limb to assist with pushing up to stand. He was observed to attempt to stand up from his couch with use of only his single point walking stick, but was unable to push up and stand from a low height. He was observed to be a very high falls risk with his current transfer method on his couch, toilet and bed if not physically assisted to slowly lower himself down and be assisted to stand up. [the Applicant] does not currently have any assistive technology in situ to assist in improving his ability to independently and safely complete standing transfers and he would benefit from review of suitable assistive technology.[94]
[93] Report of Ms Marinell Manlapid, JB p 252.
[94] Ibid, p 252.
In relation to assistive technology, the report of Ms Manlapid recommends:
Assistance with mobility and transfers within the home environment, as at present [the Applicant] requires physical assistance x1 for safe mobility and transfers. With provision of assistive technology, this level of assistance may decrease in the future.[95]
Low-cost Assistive Technology funding of up to $2,500 to purchase low risk AT items such as walking aids (walking stick or walker), shower chair, toilet frame and other utensils to assist [the Applicant] participate in daily living tasks more independently. [the Applicant] would also benefit from low-cost AT funding to be utilised for a new CPAP machine to assist with his sleep apnoea and improving his sleep and overall functional capacity during the day.[96]
Occupational Therapy services to review his assistive technology and home modification needs as it was observed that he does not currently have assistive technology in the home to assist with improving his independence and safety and reduce reliance on physical care assistance. [the Applicant] would also benefit from ongoing 1:1 therapy sessions focused on improving his daily routine and ability to attend to daily living tasks with additional support items. It is recommended that [the Applicant] be assessed on a yearly basis for a functional capacity assessment, as provision of assistive technology and home modifications, may assist with reducing the amount of care he requires in the future. For 12 months, it is recommended [the Applicant] receive up to 45 hours of Occupational Therapy for review and trial of assistive technology, fortnightly to monthly therapy sessions, report writing, liaisons with relevant parties and travel. This is a cost of 45 x $193.99= $8,729.55, as per NDIS pricing guidelines.[97]
[95] JB, p 258.
[96] Ibid, p 259.
[97] Ibid, pp 260-261.
In response to a specific question as to whether there are any assistive technology aids which could be trialled (such as schedules or alarms which would remind him to take prescribed medication) which would be appropriate for the Applicant, Ms Manlapid comments:
At present, nil assistive technology aids have been trialled, however [the Applicant] would highly benefit from review of assistive technology to improve his independence and safety in the home with his mobility, transfers and daily living tasks. [the Applicant] would benefit from review of the following assistive technology aids falls pendant alarm, electric bed, electric lift recliner, wheelchair, shower chair, toilet frame, bidet, walking aids, kitchen utensils etc[98]
[98] JB, p 268.
As to whether assistive technology aids would reduce the Applicant’s disability related care requirements, Ms Manlapid comments in part:
The above stated assistive technology aids would aid in reducing [the Applicant’s] disability care requirements as they may be able to improve his independence and safety with mobility, transfers and self-care tasks. Provision of an electric bed, electric lift recliner chair and toilet frame would reduce the need for physical assistance with functional transfers in the home. Provision of the bidet will assist with reducing care supports required to assist [the Applicant] with toileting hygiene and provision of the falls pendant alarm may assist with reducing the care supports required to provide reassurance and comfort to [the Applicant] that he can contact help if he falls when home alone.[99]
…
provision of the bed and recliner chair will assist with reducing the need for physical assistance with transfers during the day. Provision of bathroom equipment, such as the toilet frame and bidet will assist with reducing the need for physical assistance with toilet transfers and toileting hygiene during the day[100]
[99] Ibid.
[100] Ibid, p 271.
A medical certificate prepared by Dr Samer Farhan[101] states that the Applicant is at risk of falls owing to his antalgic gait and trauma. A further letter from Dr Farhan refers to the Applicant’s need for “assisted technical support in form of wheelchair, rails in shower and recliner given his physical co-morbidities”.[102] The Applicant’s falls risk is also reported in the occupational therapy report of Dr Mohammad, who states the Applicant “may need some home modifications (e.g. grabrails) installed around his home to facilitate his safe mobility inside his home and reduce the risk of falls”.[103]
[101] Medical Certificate of Dr Samer Farhan, dated 27 July 2022, JB, pp 177-178.
[102] Letter of Dr Farhan, dated 23 May 2023, JB, pp 208-209.
[103] Report of Dr Yaser Mohammad, Occupational Therapist and Mental Health Clinician, dated 30 May 2023, JB, p 221.
In relation to requested funding for a recliner chair, the Respondent contends that the Tribunal cannot be positively satisfied that the request for a recliner chair meets the criteria in ss 34(1)(a)-(d) of the Act. That is, that the provision of a recliner chair will assist the Applicant to achieve his goals, increase his social and economic participation, represent value for money and will be effective and beneficial.[104] In explaining this contention, the Respondent notes that recommendations regarding assistive technology made by Ms Manlapid in her report, recommend that the Applicant be “reviewed for” the use of several assistive technology items including a lift recliner chair. The Respondent contends that this is not a recommendation that this assistive technology be funded or purchased by the Applicant and that report plainly states that “all assistive technology items will require trial prior to recommendation and an AT report completed”.[105]
[104] Respondent SFICS, [49].
[105] Ibid, [46-47].
At hearing Counsel for the Respondent elaborated on this contention and stated that in her report, Ms Manlapid recommends that the Applicant undergo with a different occupational therapist a trial, an assessment process for assistive technology, including the chair. And when that is done, at some future point, that occupational therapist can identify particular assistive technology that is best relevant to the Applicant and identify costs. In her evidence at hearing Ms Manlapid confirmed that in her report she had recommended that the Applicant be reviewed for certain assistive technology, and that he would require a trial prior to recommendation, but that she had not conducted the review or arranged a trial of assistive technology herself, as she was not asked to do other than the independent functional assessment. Ms Manlapid explained that it is recommended always, as I wrote, to trial the equipment before making a full recommendation.[106]
[106] Transcript, pp 8-9 [35-5].
In response to a question as to what was usually involved in such trial of assistive technology, Ms Manlapid gave evidence as follows:
So normally when we do a functional assessment we make an initial recommendation for a piece of equipment. We then organise either a trial in the home or at a showroom to test different pieces of equipment because what may initially be a recommendation we may find that they are more suitable for another piece of equipment. So the trial should always be completed prior to making full recommendations.[107]
[107] Transcript, p 9 [5-10].
The Respondent contends that there is no evidence that the necessary trials or assessments have been completed in relation to a recliner chair as a proposed piece of assistive technology. The Respondent notes there is sufficient funding for trials and assessments of this or other recommended items to occur.[108] The Respondent contends that it would be premature for the Tribunal to conclude assistive technology, such as the recliner chair requested by the Applicant, was a reasonable and necessary support until such time as a specific type of chair was recommended and trialled.
[108] Ibid, [47-48].
The Tribunal has reviewed and confirmed that there is provision for $4,461.77 allocated for Occupational Therapy in the capacity building supports budget in the Applicant’s current SOPS and that these funds are for an occupational therapist to assess and provide support to assist the Applicant meet his plan goals and objectives.[109]
[109] Applicant NDIS Plan and SOPS approved 24 July 2023, JB, p 306.
As discussed elsewhere in these reasons, in order to be satisfied of the required criteria in s 34(1) of the NDIS Act, the Tribunal needs to be satisfied that the criteria in ss 34(1)(a)-(f) are all met. The Tribunal considers the Respondent to have raised a valid point by contending it is not possible for the Tribunal to be positively satisfied the requested support of a recliner chair meets s 34(1) until such time as further assessment by an occupational therapist occurs, leading to the recommendation of a specific type of chair and a trial of this proposed assistive technology occurs.
In considering the specific legislative requirements of s 34(1), the Tribunal finds, in relation to the requested support of a recliner chair that it is not satisfied that:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support; and,
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice.
As a consequence of these findings, the Tribunal has determined that ss 34(1)(a)-(c) of the NDIS Act are not satisfied. Therefore, because the criteria in section 34(1) are cumulative, it is not necessary for the Tribunal to consider whether the further mandatory criteria under ss 34(1)(d), 34(1)(e) or s 34(1)(f) of the NDIS Act are met.
By way of information for the Tribunal and Applicant, at hearing Counsel for the Respondent indicated that they are instructed that once an assessment process for assistive technology occurs and the recommendation comes in, then it is open for the Respondent, for example, do a planned variation under s 47A of the NDIS Act to meet the recommendations of the occupational therapist.[110]
[110] Transcript, p 7 [4-19].
CONCLUSION
As referred to elsewhere in these reasons, the Tribunal acknowledges the review process has likely been a frustrating and confusing process for the Applicant. In making this observation the Tribunal makes no aspersion as to the Applicant’s character or intelligence. To the contrary, the Applicant impressed the Tribunal as an intelligent man who has sustained his intention to avail himself of the review rights available to him through the mechanisms established by the Commonwealth for this purpose. This is despite his not having English as his first language. Fortunately, with respect to this factor the Tribunal was ably assisted by interpreters, including in relation to the hearing.
It is noteworthy that the issues originally in dispute in this matter have narrowed considerably during the period the matter has been with the Tribunal. As an observation, the Tribunal has the impression that this speaks to the benefit of an independent functional assessment that is of high quality, as appears to be the case with respect to Ms Manlapid’s report.
Unfortunately for the Applicant the Tribunal has determined that it does not have the power to order the reimbursement of personal funds he claims to have spent on necessary expenses, including for personal care and other required supports over the February 2022 to August 2022 period. For reasons I have discussed at some length, the Tribunal has not found it possible to be positively satisfied that the support provided to the Applicant during that period met required criteria in the NDIS Act so as to be regarded as both reasonable and necessary. This is not to suggest the Applicant was not in need of support during that period, or that he was not assisted by the witnesses. Rather that the evidence before the Tribunal was not sufficiently probative to meet the quite specific criteria in the NDIS Act and Support Rules.
For the reasons I have outlined, the Tribunal has determined the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for the decision herein of Member D Barker

.....................................[SGD]...................................
Associate
Dated: 14 November 2023

Date(s) of hearing: 24 August 2023

Counsel for the Respondent: Mr N Swan

Solicitors for the Respondent: Mr J Pattinson, Mills Oakley Lawyers

Date(s) of hearing:	24 August 2023
Counsel for the Respondent:	Mr N Swan
Solicitors for the Respondent:	Mr J Pattinson, Mills Oakley Lawyers