Al-Dabbagh and National Disability Insurance Agency
[2024] AATA 3494
•1 October 2024
Al-Dabbagh and National Disability Insurance Agency [2024] AATA 3494 (1 October 2024)
Division:NATIONAL DISABILITY INSURANCE AGENCY DIVISION
File Number: 2022/0635
Re:ZAINULABDEEN AL-DABBAGH
APPLICANT
AndNATIONAL DISABILITY INSURANCE AGENCY
RESPONDENT
DECISION
Tribunal:Senior Member D Katter
Date:1 October 2024
Place:Brisbane
The decision under review is set aside and the matter is remitted for reconsideration in accordance with the recommendations in the reasons.
....................................[SGD]..............................
Senior Member D Katter
CATCHWORDS
NATIONAL DISABILITY INSURANCE AGENCY – reasonable and necessary supports – decision under review set aside and remitted for reconsideration
LEGISLATION
Administrative Appeals Tribunals Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
CASES
PBZB and NDIA [2023] AATA 3385
REASONS FOR DECISION
1.The Applicant was born in 2002[1].
[1] CB3, page 18 and CB13 page 176.
2.On 7 April 2021 the Applicant was granted ‘access’ to the National Disability Insurance Scheme[2].
[2] CB13, page 176.
3.There was a National Disability Insurance Scheme plan provided in May 2021[3].
[3] CB8, pages 56-69.
4.On 20 December 2021 there was a further plan ‘approved’ as to the Applicant[4].
[4] CB9, pages 70 to 83.
5.On 22 December 2021 there was an application for internal review of the 20 December 2021 Statement of Participant Supports[5].
[5] CB13, page 177, paragraph 6.
6.On 18 January 2022 the plan of 20 December 2021 was ‘confirmed’[6]. There is a document headed “Outcome of your internal review request” as to the Applicant dated 18 January 2022[7]:
[6] CB2, pages 12-17.
[7] CB1, page 6.
“I am writing in response to your request that the National Disability Insurance Agency … review our earlier decision to approve the statement of supports under [the] plan. This plan was approved on 20 December 2021[[8]].
You asked us to review the following:[8] T9.
1. Funding family members to provide core supports.
I have now reviewed your request under section 100 of the [National Disability Insurance Scheme Act 2013 (Cth) (the “Act”)] … with consideration of [the Applicant’s] situation and disability support needs at the time of the original decision.
The outcome of the internal review is that I have confirmed the original decision is correct. Additional details are included in the Basis of Decision section further down in this letter.What this means
There has been no change to the current plan and the scheduled review date remains the same.”
7.There is a ‘Basis of Decision’ document that states[9]:
[9] CB1, pages 9 and 10.
“I have assessed the request in accordance with section 100 of the … Act. …
1. Funding family members to provide core supports
… Act Section 34(1)(c) criteria: Value for money.
NDIS supports need to represent value for money in that the costs of the support are reasonable relative to both the benefits achieved and the cost of alternate support when compared to the benefits to be achieved. … The NDIA will only fund family members to provide supports in exceptional circumstances. For example, when:a)There is a risk of harm or neglect to the participant;
b)There are religious or cultural reasons for funding a family member to provide supports; or
c)The participant has strong personal views, for example in relation to their privacy or dignity.
d)When all other options to identity a suitable provider of supports have been exhausted.
Whilst having family members overtake Zainulabdeen’s day-to-day support, where a paid support worker would normally be funded, may assist Zainulabdeen to pursue his goals and objectives, there is no evidence to suggest that all other options to identify a suitable provider of supports have been exhausted.
I recognise that Zainulabdeen’s family may be best at addressing his patterns of violence, as well as his personal views, founded on his cultural and religious background. However, there has been no evidence provided to date, that a support worker has been unsuccessful in assisting Zainulabdeen.
Further, it appears that the NDIS offered to find Zainulabdeen a support worker with a similar cultural background, however, this approach was refused. As such, I am not satisfied this request meets this criteria.
… Act Section 34(1)(e) criteria: Reasonable expectation of families, carers, informal supports and the community.
All NDIS supports must take into account what is reasonable to expect families, carers, informal networks and the community to provide. Supports funded by the NDIS are intended to complement the informal supports available, by taking into account what is reasonable for families, carers, informal networks and the community to provide. I am not satisfied this request is best provided by the NDIS.
I note that you (Haider Al-Dabbagh) are in receipt of a Carer Payment for support provided to Zainulabdeen. The community has general expectations about the supports which could be reasonably provided by family or primary care givers. The NDIS may fund supports that are needed as a direct result of a participant’s disability, but it is not intended to displace the ordinary role of families and carers.
The carer payment is provided to people who provide a significant period of care each day, as such providing a further payment for you to assist with the care of Zainulabdeen will likely be a duplication and therefore, would not be reasonable and necessary for the NDIS to fund.”
8.An Application for Review of Decision was lodged in the Tribunal on 28 January 2022[10]. As to the date of decision of the Respondent to be reviewed, that application form states 21 January 2022[11].
[10] CB1, page 1.
[11]CB1, page 4. The Application form states: “Please select the copy of your decision File: NDIS Internal review.pdf”.
9.Section 103 of the Act as in force on 28 January 2022 stated[12]: “… Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).”
[12]National Disability Insurance Scheme Act 2013 (Cth), No. 20, 2013, Compilation No. 15, Compilation date: 29 October 2021, Includes amendments up to: Act No. 116, 2021, Registered: 15 November 2021.
10.The Statement of Participant Supports of December 2021 was varied in May 2022 further to a remittal order made by the Tribunal on 4 May 2022[13]. Section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) states:
[13] CB13, page 177, paragraph 10.
“42D Power to remit matters to decision‑maker for further consideration
(1)At any stage of a proceeding for review of a decision other than a proceeding in the Social Services and Child Support Division, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.
Powers of person to whom a decision is remitted
(2)If a decision is so remitted to a person, the person may reconsider the decision and may:
(a) affirm the decision; or
(b) vary the decision; or
(c) set aside the decision and make a new decision in substitution for the decision set aside.
Note: For time limits, see subsection (5).
(3)If the person varies the decision:
(a)the application is taken to be an application for review of the decision as varied; and
(b) the person who made the application may either:
(i)proceed with the application for review of the decision as varied; or
(ii) withdraw the application.
(4)If the person sets the decision aside and makes a new decision in substitution for the decision set aside:
(a) the application is taken to be an application for review of the new decision; and
(b) the person who made the application may either:
(i)proceed with the application for review of the new decision; or
(ii) withdraw the application.
Time limits
(5)The person must reconsider the decision, and do one of the things mentioned in paragraphs (2)(a), (b) and (c), within whichever of the following periods is applicable:
(a)if the Tribunal, when remitting the decision, specified a period within which the person was to reconsider the decision—that period;
(b)in any other case—the period of 28 days beginning on the day on which the decision was remitted to the person.
(6)The Tribunal may, on the application of the person, extend the period applicable under subsection (5).
(7)If the person has not reconsidered the decision and done one of the things mentioned in paragraphs (2)(a), (b) and (c), within the period applicable under subsection (5), the person is taken to have affirmed the decision.
(8) If the person affirms the decision, the proceeding resumes.”
After the section 42D remittal of 4 May 2022, there was a decision by the Respondent dated 9 May 2022[14]. There is a document as to the Applicant which states on the first page that it is dated 9 May 2022[15]: “NDIS Plan start date: 09 May 2022 … NDIS plan review due date: 07 November 2022”. The application to the Tribunal is taken to be an application for review of the decision of 9 May 2022[16], with the Applicant proceeding with the application for review of that decision[17].
[14] CB21, page 301.
[15] CB21, page 301.
[16] CB21, page 301.
[17] Section 42D of the Administrative Appeals Tribunal Act 1975 (Cth).
The 9 May 2022 document[18] stated:
[18] CB21, page 301.
“Total funded supports $41,509.59
For 09 May 2022 – 07 November 2022Core Supports …
Funding for assistive technology: $250.00 is allocated for the purchase of basic (Level 1) and standard (Level 2) assistive technology to support me to achieve my goals and outcomes as identified by an allied health provider. I can use my core support funding flexibly to help with my daily activities, my current disability related needs and to work towards my goals.
Funding for individual skills development and training, inclusive of cooking, accessing and using transport, domestic tasks, financial management and budgeting etc. Support includes access training and skill development for you to pursue and participate in any community, social or recreational activities of interest.
My Core Supports funding will be:
$23,898.40 Plan-managedTransport $892.00
This funding is a contribution towards any disability related transport costs I incur during the plan period. This amount will be paid fortnightly into my nominated bank account and my providers will invoice me directly for any costs incurred related to my personal transportation needs.
My transport funding will be: paid as fortnightly instalments into my nominated bank account.
Total Core Supports $24,790.40
Capacity Building Supports
My Capacity Building funding can be spent in the following ways:
Improved Life Choices (CB Choice & Control) $859.05
Financial intermediary set up costs and monthly processing fees for your plan manager to manage your plan.My Stated Supports funding will be:
$232.35 NDIA-managedPlan Management And Financial Capacity Building – Set Up Costs
$626.70 NDIA-managedPlan Management – Financial Administration
Improved Daily Living (CB Daily Activity) $7,228.68
Support to assist me to access therapy supports and skills development to achieve my plan goals. This may include therapies such as Psychology, Occupational Therapy and Speech Therapy to develop my independence around emotional regulation, social skills, functional independence and communication. A report detailing outcomes achieved is to be provided to the NDIS by all capacity building providers before this plan is due for review.My Improved Daily Living funding will be:
$7,228.68 Plan-managedImproved Relationships (CB Relationships)
Funding for 20 hours of specialist behaviour intervention support, 10 hours of behaviour management plan and training in behaviour management strategies. 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.My Stated Supports funding will be:
$4,288.20 NDIA-managedSpecialist Behavioural Intervention Support
$1,939.90 NDIA-managedBehaviour Management Plan Incl. Training In Behaviour Management Strategies
Support Coordination
Support coordination to assist you achieve the goals in this plan through providing assistance to choose and coordinate providers, develop service agreements, manage the funding in this plan, use the participant portal, find and link with appropriate services, organisations and activities in the community, resolve queries or concerns that may arise and develop goals for future plans.My Stated Support funding will be:
$2,403.36 NDIA-managed
Level 2: Coordination Of Supports
Total Capacity Building Supports $16,719.19”13.The Applicant submitted[19] that the Tribunal only has jurisdiction to consider the supports that should be specified as reasonable and necessary supports in the decision under review, being the decision to approve the Statement of Participant Supports contained in the Applicant’s 9 May 2022[20] plan issued pursuant to the remittal order made by the Tribunal on 4 May 2022[21]. The Respondent agrees[22] with the Applicant’s submission that the Statement of Participant Supports which the Tribunal is reviewing is the Statement of Participant Supports that was included in the Applicant’s plan of 9 May 2022’[23]. The Applicant submitted that “on or around 7 November 2022, the review date of the Applicant’s plan was automatically extended by 12 months, with the review date becoming 7 November 2023; and on or around 7 November 2023, the Applicant’s plan was again ‘automatically extended’ by 12 months, with the review date becoming 6 November 2024”[24]. The Applicant submitted that what occurred on 7 November 2022 and 7 November 2023 “give rise to a jurisdictional question: are the Statements of Participant Supports as varied on 7 November 2022 and 7 November 2023 reviewable decisions over which the Tribunal has jurisdiction?”[25].
[19] Closing Submissions on behalf of the Applicant, undated, paragraph 107.
[20] CB21, page 301.
[21] CB13, page 177.
[22] Respondent’s Closing Submissions, undated, paragraph 56 and Annexure B, paragraph 2.
[23] Respondent’s Closing Submissions, undated, paragraph 56 and Annexure B, paragraph 2.
[24] Closing Submissions on behalf of the Applicant, undated, paragraph 96.
[25] Closing Submissions on behalf of the Applicant, undated, paragraph 96.
14.Both parties submitted[26] that section 103(2) of the Act, which operates to automatically fold subsequent decisions made under section 33 or 47A of the Act into an existing review at the Tribunal, does not apply, in that the sub-section was inserted in the section by items 48 and 49 of Schedule 1 of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth); that the change took effect on 1 July 2022 and the transitional provisions of the Amending Act state that the provision does not apply to Tribunal proceedings commenced prior to 1 July 2022[27]. The Respondent submitted that the decision to approve the Statement of Participant Supports that was the subject of the section 42D plan[28] is still the effective Statement of Participant Supports decision by which the Applicant is the subject of current funding. The Respondent submitted that the ‘automatic extensions’ were not decisions to vary the Statement of Participant Supports, in that they were not decisions to issue a new plan, where the commencement date of the plan remained[29]. The Respondent submitted[30] that the plan created on 9 May 2022 remains in effect, where only the replacement of the plan brings to an end a former plan, according to section 37(3) and the Act distinguishes between the variation and replacement of plans, having regard to the note in s 37 of the Act, as well as the ‘options’ in sections 47-50 of the Act to either vary or replace a plan[31]. The Respondent also submitted that the CEO did not need to alter the Statement of Participant Supports to provide funding for the Applicant, in that if no decision is made replacing/varying a Statement of Participant Supports before a plan review date, continuous funding on the basis contained within the Statement of Participant Supports (on a pro rata basis) is required[32]. The document of 14 May 2024 from the Respondent to the Applicant, which refers to a participant plan being attached, states the “NDIS plan start date” is “09 May 2022”[33]. The Respondent submitted that no decision was subsequently made and funding must continue, by virtue of section 37(3) of the Act (which requires that a plan remains in effect until it is replaced by another plan under Division 4) and section 39 (which requires that the Agency must comply with the ‘SOPS’ in a participant’s plan)[34]. The Applicant finally submitted[35]:
[26]Closing Submissions on behalf of the Applicant, undated, paragraph 103-104; Respondent’s Closing Submissions, undated, paragraph 56 and Annexure B, paragraph 4.
[27] National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other
Measures) Act 2022, section 2, item 19 and Schedule 1, item 68(2).
[28] CB21, page 301.
[29] Respondent’s Closing Submissions, undated, paragraph 56 and Annexure B, paragraph 8.
[30] See Respondent’s Closing Submissions, undated, paragraph 56 and Annexure B, paragraphs 9-11.
[31]The Respondent also submitted that that can be inferred from section 49 of the Act, which requires the CEO to do a re-assessment of a participant’s plan before a review date and either vary that plan or prepare a new plan.
[32] See Respondent’s Closing Submissions, undated, paragraph 56 and Annexure B, paragraphs 9-11.
[33] Exhibit 2, 14 May 2024, NDIS plan, pages 1-3.
[34] Respondent’s Closing Submissions, undated, paragraph 56 and Annexure B, paragraph 10.
[35] Closing Submissions in Reply on behalf of the Applicant, undated, paragraph 27.
“As to whether the Tribunal’s jurisdiction is impacted by the “automatic plan-rollovers” that took place on 7 November 2022 and 7 November 2023:
(a)the Applicant accepts the Respondent’s submission that to the extent the Tribunal considers what occurred on 7 November 2022 and 7 November 2023 was simply that the Agency’s computer systems were programmed to “rollover” the funding the subject of the Applicant’s s 42D plan and this occurred, then
(b)consistent with the Tribunal decision in PBZB and NDIA [2023] AATA 3385 at [41]-[43] the original plan decision and SOPS remains in effect and as a consequence, the Tribunal has jurisdiction to consider any request that a support be determined as reasonable and necessary for inclusion in the SOPS from December 2021 to the present.”
15.The Applicant submitted that the Tribunal should make a determination about the reasonable and necessary supports that should be specified in the statement of participant supports under review and then remit the matter to the Respondent with a direction for inclusion of these supports in the Applicant’s statement of participant supports ‘moving forward’[36]. The plan of 9 May 2022[37] is the subject of the application for review and the Tribunal has jurisdiction to consider any request that a support be determined as reasonable and necessary for inclusion in the statement of participant supports.
[36] Closing Submissions on behalf of the Applicant, undated, paragraph 110.
[37] CB21, page 301.
16.The Applicant submitted[38] that there are two questions: (1) What are the reasonable and necessary core and capacity building supports that should be specified in the Applicant’s statement of participant supports; and (2) Should the Applicant’s statement of participant supports specify that the Applicant cannot engage members of his family as providers of core supports. The Respondent did not submit that there were alternative questions or issues[39].
[38] Closing Submissions on behalf of the Applicant, undated, page 1, paragraph 2.
[39] Respondent’s Closing Submissions, undated, paragraphs 2 and 3.
17.The Applicant submitted that the following orders be made[40]:
[40] CB30, page 506.
“ … (a) The Applicant’s [supports] include the following … :
(i) The following core supports:
(1)12 hours a day of support work for assistance with activities of daily living and community participation; and
(2)an additional 4 hours of support work per day to enable the Applicant to engage an external support worker for a ‘buddy shift’ with a family member;
(3) 28 days of Short Term Accommodation.
(ii)The supports in the Applicant’s current SOPS (including his specialist behaviour intervention support and funding for behaviour management plan and training in behaviour management strategies) should otherwise be replicated on a pro rata basis.”
18.The Respondent submitted that the following orders be made[41]:
“(a)The Respondent’s decision dated 9 May 2022 to approve a statement of participants supports in relation to the Applicant be remitted to the Respondent with a direction that the provision of a support of 28 days short term accommodation over a 6 month period is a reasonable and necessary support.
(b) Otherwise, the decision under review be affirmed.”
[41] Respondent’s Closing Submission, dated 24 July 2024, paragraph 182.
Section 34 of the Act states:
“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.
(2)The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).”
The Respondent states that the Applicant has: “autism spectrum disorder (Level 2), schizophrenia, unspecified non-organic psychosis, severe depressive episodes, borderline IQ, expressive and receptive language difficulties” [42].
[42] Respondent’s Closing Submissions, undated, paragraph 7.
The Applicant’s Father, Mr Al-Dabbagh, stated that the Applicant is normally up at 11am or 12pm, and goes to sleep from 12am to 1am[43]. Mr Al-Dabbagh later said that at 8am in the morning the Applicant takes medication, “then returns to sleep until sometimes 10 or 11am”[44].
[43] Transcript, 21 May 2024, p-146 line 38.
[44] Transcript, 21 May 2024, p-146 line 46 and p-147 lines 1-2.
The Applicant submitted that[45]:
[45] Closing Submissions on behalf of the Applicant, undated, paragraph 55.
“[Dr Baker] was of the view that:
(a)24 hours per day as proposed by Occupational Therapist Stephanie Lund on 10 March 2021[[46]] would be excessive[;]
[46] Exhibit 1, page 659-667 at page 666 (CB34).
(b) 16 hours per day as proposed by Developmental Educator Tara Kent on 5 May 2022[[47]] would be excessive[;]
[47] Exhibit 1, page 456-465 at page 464 (CB30).
(c) 12 hours as proposed by Occupational Therapist Maria Best on 3 December 2021[[48]] would be excessive[[49]][;]
[48] Exhibit 1, page 46-54 at page 54 (CB6).
[49] Transcript 20 May 2024 (Day 1), P-39, 33; P-47, 11-14.
(d) … 6 hours per day for assistance with activities of daily living as proposed by Clinical Nurse/Behaviour Support Practitioner Stephanie Martini on 1 July 2021[[50]], plus an additional number of hours per day for community access (which Martini put at 8 hours per day 7 days a week but Dr Baker did not quantify) would seem appropriate[[51]]; and
[50] Exhibit 1, Page 507-521 at pages 515 and 516 (CB32).
[51] Transcript 20 May 2024 (Day 1), P-41, 25-38, 34-35.
(e) 2.28 hours per day was insufficient[[52]]. …
[52] Transcript 20 May 2024 (Day 1), P-45, 25; P-53, 30-31.
Though not specifically put to Dr Baker, … Dr De Silva, though working on the basis of a primary diagnosis of ASD opined that the Applicant required ‘at least 14 hours of support a day’[[53]]
In making the above assessment about the number of hours of support required by the Applicant, Dr Baker emphasised … that ‘he doesn’t need to have support while he’s sleeping, which if memory served me was upwards of 10 hours per day.[[54]].
Dr Baker did not comment on how evidence about the unpredictable and erratic nature of the Applicant’s sleep scheduled factored into her assessment.[Ms Welshe, Mental Health Accredited Occupational Therapist] considered that the level of formal support funded in the Applicant’s May 2022 Plan Falls far below his actual requirements for care.[[55]] [Ms Walshe’s] view was that the Applicant requires 24 hours per day of support, but that it would be reasonable to recognise 12 hours per day of this care as formal funded support[[56]]. Contrary to Dr Baker, Ms Welshe did not consider that the Applicant’s support hours should be reduced on account of his sleeping for 10 hours a day. This was because:
(a) The Applicant’s 10 hour sleeping window is not consistent every day “he may fall asleep at 1am or he may fall asleep at 10pm;
(b) The Applicant wakes up and has nightmares and therefore requires support to resettle after nightmares;
(c)The Applicant would likely experience heightened anxiety at the thought of his parents or a support person not being there, and therefore his ability to fall asleep would be comprised. …
Also contrary to Dr Baker, Ms Welshe did not consider the Applicant would benefit from time where [the Applicant] is left completely on his own, without a support worker or his parents. This was because she considered there to be ‘evidence that he psychologically decompensates and becomes very anxious and destructive to furniture when he is left entirely alone in the home[[57]].”
[53] Exhibit 1 page 669 (CB35).
[54] Transcript 20 May 2024 (Day 1), P-40, 19-20; P-47, 12.
[55] Exhibit 1, Page 354 (CB27).
[56] Exhibit 1, Page 356 (CB27).
[57] Transcript 21 May 2024 (Day 2), P-70, 16-18.
The Respondent submitted[58] that there “cannot be satisfaction that funding of 12 hours is a reasonable and necessary support”[59]:
“First, that the evidence does not indicate any plan how as to how the Applicant will utilise the support worker funding. For example, there is no definitive plan concerning (a) who the support worker/s will be; (b) how the support worker/s will interact with the Applicant; (c) what the support worker/s will do with the Applicant to cause him to achieve his NDIS goals and build capacities/independence. … Absent knowing this, the [Respondent] cannot be satisfied of things like: (a) that an optimal person to provide support to the Applicant will be engaged; and (b) the tasks the support worker will engage in will be the most optimal for the Applicant in terms of developing his skills and capacities etc. … at the present time no behavioural support plan is in place. Inevitably, this means that any purported support worker support will be less effective. Further, for a support worker’s time to be used optimally, that has to be done by reference to a coordinated approach involving all of the Applicant’s health professionals.[[60]]”
[58] Respondent’s closing submissions, pages 9-10, paragraphs 62-63.
[59] Respondent’s closing submissions, pages 10, paragraph 64.
[60] T83.6-15, 92.34-46 (Welshe oral evidence). Refer, also, to 15.39-18.3 (Baker oral evidence).
The Respondent submits that “at a high level of generality it may be accepted that, if the Applicant was provided with 12 hours of support worker funding per day, this would benefit him”[61]. Core support of 12 hours per day of support will, having regard to the evidence referred to above, assist the Applicant to pursue the goals, objectives and aspirations in the Applicant’s statement of goals and aspirations. The Respondent submitted that: “ … if the support is going to be used to provide the Applicant with 12 hours of support worker ‘support’ while he sleeps, there are additional issues that arise as to whether that support is reasonable and necessary by comparison with such a support being utilised during the day … even aside from the cost differential noted in the NDIS Pricing Arrangements and Price Limits 2024-25”[62].
[61] Respondent’s closing submissions, page 10, paragraph 63.
[62] Respondent’s closing submissions, page 11, paragraph 71 and .
It will assist the Applicant to undertake activities, so as to facilitate the Applicant’s social and economic participation, but that will only occur if the 12 hours of support worker funding is during the non-sleep hours of the Applicant, on the evidence[63]. 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. The support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice. 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. The 12 hours of support worker funding per day is most appropriately funded or provided through the National Disability Insurance Scheme.
[63] Respondent’s closing submissions, page 11, paragraph 71.
The Applicant, as referred to above, submitted that there should be core supports of: (1) 12 hours a day of support work for assistance with activities of daily living and community participation; and (2) an additional 4 hours of support work per day to enable the Applicant to engage an external support worker for a ‘buddy shift’ with a family member. There will not be a direction for funded support for 16 hours per day, as 16 hours does not take into account the current good practice as stated by the practitioners, does not take into account what is reasonable to expect families to provide and 16 hours is not most appropriately funded or provided through the National Disability Insurance Scheme. It is recommended that there be total core support up to 12 hours per day, during the Applicant’s waking hours[64] to undertake activities[65], as funded support.
[64] Respondent’s closing submissions, page 11, paragraph 71.
[65] See Transcript 20 May 2024 (Day 1), P-41, 25-38, 34-35.
The Applicant submits, as referred to above, that there should be core supports for 28 days short term accommodation[66]. The Respondent also submits, as referred to above, that there be 28 days short term accommodation over a 6-month period[67]. Having regard to the evidence and submissions of the parties, it is recommended that a core support of 28 days accommodation over 6 months is a reasonable and necessary support.
[66] CB30, page 506.
[67] Respondent’s Closing Submission, dated 24 July 2024, paragraph 182.
28.The Applicant submitted that the Applicant’s Statement of Participant Supports include the following “capacity building supports”: weekly speech pathology, plus report writing; weekly psychology, plus report writing; weekly exercise physiology, plus report writing; fortnightly occupational therapy, plus report writing; funding to attend identified group programs on two days per week and 100 hours per year of support coordination[68]. Dr Mantzioris stated that “very simply”, “almost baby steps”[69] could be used to engage with the Applicant to get him into activities[70]. Dr Baker was of the view that the “obstacles” could at least in part be overcome through the provision of increased capacity building supports and sufficient core support through a positive behaviour framework, with any transition being planned, monitored and reviewed[71].
[68] Closing Submissions on behalf of the Applicant, undated, page 27, paragraph 114(ii).
[69] Transcript, 21 May 2024, p-109, line 10.
[70] Transcript, 21 May 2024, p-109, lines 11 and 21-22.
[71] Transcript, 20 May 2024, p-30, line 32.
29.The Applicant submitted that the Respondent had an opportunity to respond to the Applicant’s submissions about whether the evidence before the Tribunal supports a finding that the additional supports are reasonable and necessary in its closing submissions, but chose not to make any submissions in that regard[72]. The Respondent submitted that “if the Respondent had notice of such a case at hearing or prior to the hearing, it would have adduced evidence going to the question of whether these supports sought were reasonable and necessary supports”[73]. The Respondent, as referred to above, submitted that the decision under review of 9 May 2022 be “otherwise affirmed”. The Respondent submitted that “if the Applicant wishes to seek these additional supports to be included in his plan, the appropriate course is for the Applicant to take steps to approach the [Respondent] and request they be included in his plan. If the Applicant is dissatisfied with the result of the [Respondent’s] decision, he can seek merits review of that decision (to an internal reviewer, and then the Tribunal)”[74]. There will not be a direction or recommendation, having regard to the evidence, that those inclusions are considered reasonable and necessary as capacity building supports. As submitted by the Respondent, if the Applicant seeks those additional supports to be included in the Applicant’s plan, the Applicant can communicate to the Respondent and request that they be included in the plan.
[72] Closing Submissions in Reply on behalf of the Applicant, undated, page 24, paragraph 107(d).
[73] Submissions of the Respondent, undated, page 26, paragraph 172.
[74] Submissions of the Respondent, undated, page 26, paragraph 173.
30.On 9 May 2022[75] there was the addition of 40 hours per year of specialist behaviour intervention support, 20 hours per year of behaviour management plan and training in behaviour management strategies. The Applicant submits that the supports in the Applicant’s Statement of Participant Supports, including specialist behaviour intervention support and funding for a behaviour management plan and training in behaviour management strategies should otherwise be replicated on a pro rata basis[76]. The Respondent submits that the decision under review be affirmed, other than as to the short-term accommodation[77]. There does not therefore appear to be difference between the parties as to these particular supports.
[75] CB21, page 301.
[76] CB30, page 506.
[77] Respondent’s Closing Submission, dated 24 July 2024, paragraph 182.
31.As referred to above, the Applicant submitted at the hearing that one of the two issues was whether the Applicant’s Statement of Participants Supports should specify that he cannot engage members of his family as providers of core supports[78]. The Applicant submits that there be a direction that the Applicant’s Statement of Participant Supports “should not specify that he cannot engage members of his family as providers of core supports”[79]. As to why the decision of 21 January 2022 ‘was wrong’, the form lodged in the Tribunal states[80]:
[78] Closing Submissions on behalf of the Applicant, undated, page 1, paragraph 2(b).
[79] CB30, page 506.
[80] CB1, page 4.
“Due to the difference in culture, language and religious beliefs. In addition to the strong personal views of my son because of his psychological condition (seeing scary faces and scaring from people). Also, because of the severity and serious of the condition, I requested to get an exception to approve the family as formal support workers. The request was declined as there is a support worker from the same background.”
The Applicant submitted that[81]:
[81] Closing Submissions on behalf of the Applicant, undated, page 18, paragraphs 73-75.
“The Applicant’s father gave evidence that he considered the fact that the Applicant see[s] scary faces in some people, [and that] is the core issue with obtaining support workers.[[82]] He stated that this had led to a more general rejection of workers by the Applicant due to fear that he would see a scary face.[[83]] … The Applicant’s father also explained that there also cultural and religious factors that needed to be taken into account in finding a support worker for the Applicant. He said it would only be appropriate for a male support worker to assist the Applicant with personal care tasks such as showering[[84]] … [A] male support worker in home would also cause issues with the Applicant living with his mother and sister … .[[85]] The father [referred] to the steps that he had taken in engaging support workers for Zain … :
[82] Transcript 21 May 2024 (Day 2), P-125, 6-7.
[83] Transcript 21 May 2024 (Day 2), P-125, 39-41; P-126, 46-47.
[84] Transcript 21 May 2024 (Day 2), P-126, 10-18.
[85] Transcript 21 May 2024 (Day 2), P-128, 32-37.
(a)Asked members of the Iraqi community he knew through the community centre in Kuraby if they would be willing to provide paid support to Zain;[[86]]
[86] Transcript 21 May 2024 (Day 2), P-130, 40-47.
(b)Asked an Iraqi friend whether his son who was around the Applicant’s age would work as support worker for Zain;[[87]]
[87] Transcript 21 May 2024 (Day 2), P-131, 39.
(c) Engaged a female support worker from an Iraqi background to provide domestic assistance, through a service provider he was already aware of employed Arab support workers;[[88]]
[88] Transcript 21 May 2024 (Day 2), P-132, 10-17.
(d) Looked on Google and Gumtree for Iraqi male, Arabic speaking support workers in Brisbane;[[89]]
[89] Transcript 21 May 2024 (Day 2), P-134, 9-10.
(e)Drove and walked around the suburb of Moorooka, where he understood many people from Somalia lived[[90]], to look for service providers[[91]];
[90] Transcript 21 May 2024 (Day 2), P-133, 46-47.
[91] Transcript 21 May 2024 (Day 2), P-134, 20-23.
(f)Organised a trial of a support worker from Somalia, through an agency called Unique Oz Care, who Zain rejected;[[92]]
[92] Transcript 21 May 2024 (Day 2), P-135, 1-5.
(g) Trialled another self-employed support worker, who was an Iraqi friend of the family, who Zain rejected after two or three shifts. …
(h)Engaged a support coordinator for a year to assist with finding a support worker for Zain.[[93]]
[93] Transcript 21 May 2024 (Day 2), P-140, 14-21.
The father conceded that while he had engaged with the support coordinator he had ceased trying to identify third party carers in or about October 2021 as a result of the difficulties in identifying same.[[94]]
The evidence from the family was that the care they provided to the Applicant included:[95][94] Transcript 21 May 2024 (Day 2), P-138, 7.
[95]Exhibit 1 Page 313-324 (CB22); Page 329-330 (CB24); Page 466-471, 472-473, 474-475 (CB30); Page 612-615 (CB33).
(a) Assisting the Applicant to regulate his emotions and anxiety throughout the day and during the night as required;
(b) Preparing meals for the Applicant and prompting him to eat;
(c) Doing the Applicant’s laundry and completing other cleaning tasks for him;(d) Assisting the Applicant to shower, dress himself, and perform other personal self-care tasks;
(e) Administering and managing the Applicant’s medication;
(f) Arranging the Applicant’s essential appointments and taking him to those appointments;
(g) Assisting the Applicant to engage in leisure activities;
(h) Taking the Applicant out of the house for social interaction with his community at the local mosque.”
The Respondent submitted that[96]:
[96] Respondent’s Closing Submissions, undated, page 13, paragraph 79.
“The Applicant’s family has been caring for him for his whole life. The present situation which subsists is antithetical to his development. By-and-large, the Applicant’s typical day involves him playing Xbox/computer games for 10 hours[[97]] and sleeping for 10-12 hours (including sleeping through the day and playing Xbox through the night)[[98]]. Very little of his current routine involves undertaking activities designed to improve … skills/capacities and the Applicant’s parents – “at odds with his development” – do tasks for him which he is capable of doing (such as self-care and cleaning tasks).[[99]] For example the family does virtually all day-to-day domestic tasks for the Applicant (e.g. making his bed, cleaning his room, doing his laundry, cooking for him etc).[[100]] … Despite having a significant capacity building budget, the family largely do not seek to utilise it and reject capacity building suggestions made by professionals. … The Applicant does not participate in regular exercise and has a diet consisting primarily of high calorific foods.[[101]] Despite it being essential for the Applicant’s development that he build a trusted social network outside his family,[[102]] his social interactions are almost entirely limited to immediate family members.[[103]] In consequence, the Applicant has very limited leisure interests, had limited social connections, and no significant peer friendships or community engagements other than religious based activities.[[104]] He also has poor independent living skills and very poor self-care.[[105]] … Concerns have been raised … about … the Applicant’s ‘worsening social isolation, social withdrawal, asociality, avolition and alogia’.[[106]] The Applicant has continued to develop ‘challenging behaviours’[[107]] – which have become more entrenched over time – which have impeded his ability to develop. These behaviours ‘have been supported by reinforcement’ by his family.[[108]] The family’s approach to undertaking all his self-care tasks – ‘at odds with his development’[[109]] – has ‘condition[ed]’ the Applicant ‘in the form of diminished self-efficacy, avolition and dependency’.[[110]]
[97]Report of Welshe dated 5 December 2022, p 8 (CB27:340) and 27 (CB27:357); Baker report, p10 (CB17:232).
[98]Martini report, p3 (CB28:408); Lund report, pp6-7 (CB34: 664-5). Mantzioris report dated 14 April 2023 as to “naps during the day” (CB33: 604-606) and pp19-21 of the Baker report (CB18: 241-243).
[99] [67] of the statement 27 May 2022 (CB33:587ff).
[100] Baker report, p 41 (Q14) (CB18:263).
[101] Baker report, p20-21 (CB18:242-3).
[102] Martini report, p 10 (CB28:415).
[103] Baker report, pp32-33 (CB18: 254-5).
[104] Baker report, p 33 (CB18:255).
[105] 27 May 2022 Statement, [35] (CB33:584).
[106] Mantzioris report dated 14 April 2023 (CB33: 604-606).
[107] Baker report (CB18:223ff).
[108] Baker report, p42 (CB18:264).
[109] Baker report, p41 (Q14) (CB18: 263).
[110] Baker report, p 41 (Q14) (CB18:263).
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) state that they are made for the purposes of sections 33 and 34 of the Act. Section 3.4 of those rules states:
“Reasonable family, carer and other support
3.4 In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to
provide, the CEO is to consider the following matters: …
(b)for other participants:
(i) the extent of any risks to the wellbeing of the participant arising from
the participant’s reliance on the support of family members, carers,
informal networks and the community; and(ii) the suitability of family members, carers, informal networks and the
community to provide the supports that the participant requires,
including such factors as:(A) the age and capacity of the participant’s family members and
carers, including the extent to which family and community
supports are available to sustain them in their caring role; and(B)the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and
(C)the extent of any risks to the long term wellbeing of any of the
family members or carers (for example, a child should not be
expected to provide care for their parents, siblings or otherrelatives or be required to limit their educational opportunities); and
(iii) the extent to which informal supports contribute to or reduce a
participant’s level of independence and other outcomes;(c) for all participants—the desirability of supporting and developing the
potential contributions of informal supports and networks within theircommunities.”
As referred to above, there is a recommendation that there be total core support up to 12 hours per day, during the Applicant’s waking hours, as funded support. Regard has been had to the intensity and type of support that is required and whether it is appropriate for the Applicant’s family to be providing that support. It was not submitted that any member of the Applicant’s family is formally trained in the provision of support. The funding or provision of the total core support up to 12 hours per day to the Applicant “takes account of what is reasonable to expect the Applicant’s family, carers, informal networks and the community to provide”. It is not effective and beneficial for the Applicant, having regard to current good practice for the Applicant’s family to be the Applicant’s support worker/s, having regard to the evidence[111], as referred to above. There has been consideration of the extent of any risks to the long-term well-being of the Applicant’s family, if the Applicant’s family members were to solely provide support for the Applicant. The Applicant’s family providing paid support is not most appropriately funded or provided through the National Disability Insurance Scheme. The recommendation made above as to total core supports including up to 12 hours per day of support worker funding, is not reasonable and necessary if that paid support work is to be performed wholly by the Applicant’s family members. There will not be a direction that the “Applicant’s statement of participant supports should not specify that the Applicant cannot engage members of his family as providers of core supports”, as submitted by the Applicant.
[111] Respondent’s Closing Submissions, undated, page 13, paragraph 79.
DECISION
36.The decision under review is set aside and the matter is remitted for reconsideration in accordance with the recommendations[112] in these reasons.
[112] Section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision
........[SGD]............................................
Associate
Dated: 1 October 2024
Dates of hearing: 20, 21 and 22 May 2024 Date of final submissions: 31 July 2024 Counsel for the Applicant: Mr M. Taylor, instructed by Legal Aid Queensland. Counsel for the Respondent:
Mr B. McGlade, instructed by Mills Oakley.
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