Barrett and National Disability Insurance Agency

Barrett and National Disability Insurance Agency [2022] AATA 445 (15 March 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/6211
Re:Paul Barrett
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:15 March 2022
Place:Sydney

The reviewable decision dated 8 October 2020 made under s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (the Act) is varied to include funding provided under the Applicant’s statement of participant supports for Specialist Disability Accommodation, in accordance with s 15 of the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth), as a reasonable and necessary support under s 34 of the Act. The features of the Specialist Disability Accommodation will include:
•          New Build;
•          Building type: House, 2 residents;
•          Design category: Improved Liveability;
•          Features: With sprinklers;
•          Locations: NSW Newcastle and Lake Macquarie and NSW Central Coast.
...............................................................[sgd].......................
Mrs J C Kelly, Senior Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – review of supports in plan – whether the requested design category of Specialist Disability Accommodation is reasonable and necessary pursuant to s 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) – decision varied
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 34
National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
CASES
McGarrigle v National Disability Insurance Agency [2017] FCA 308
SECONDARY MATERIALS
National Disability Insurance Scheme – Price Guide (2020-21) – Specialist Disability Accommodation (SDA)
National Disability Insurance Scheme - Pricing Arrangements for Specialist Disability Accommodation 2021-2022
NDIS Specialist Disability Accommodation Design Standard, Edition 1.1 (25 October 2019)
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
15 March 2022
The reviewable decision

The Applicant, Paul Barrett, was born in 1976 with Congenital Rubella Syndrome which has resulted in lifelong hearing and vision impairment, intellectual disability, being non-verbal, and having Autism Spectrum Disorder (ASD) tendencies. He communicates through key word sign. He was granted access to the National Disability Insurance Scheme (NDIS) on 10 March 2014.
Since about May 2020, he has resided alone in supported independent living accommodation (SIL) five days a week with a support worker. Before that, there had been up to three residents. One resident died and another was transferred to an aged care facility.
He has resided in similar accommodation since he was 25 years of age. He stays with his parents at their home from Friday afternoon to Sunday afternoon for approximately 42 weeks a year.
Mrs Denise Barret, the Applicant’s mother, represented the Applicant and provided written and oral evidence.
The Applicant has applied for review of an internal review decision dated 8 October 2020 which confirmed the statement of supports in the Applicant’s NDIS Plan which was approved on 25 August 2020. The Applicant was approved for Specialist Disability Accommodation (SDA) at the Improved Liveability level (SDA Improved Liveability), pending a quote. He is seeking to increase his support to SDA at the Robust level of funding (SDA Robust).
The Applicant has been approved for a building type: House, 2 Residents. That is, the ratio of occupants to support worker of 2:1. He has one carer for community activity support.
The issue to be decided
The issue to be decided is whether SDA Robust is a reasonable and necessary support for the Applicant pursuant to s 34 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act).
Consequently, the focus of the evidence was on two aspects of the Applicant’s behaviour: his destructive behaviours and loud vocalisation. The question I have to answer is do those behaviours lead to the conclusion that SDA Robust is a reasonable and necessary support for the Applicant? To decide that question I also have to consider the Respondent’s contention that proposed behavioural strategies to change some of the Applicant’s behaviour and SDA Improved Liveability are comparable supports which would achieve the same outcome at a substantially lower cost.[1] A further matter was the need for physical accessibility, particularly as the Applicant ages.
[1] National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth), paragraph 3.1(a).
Mrs Barrett and the Applicant were also dissatisfied with the area that had been approved: Newcastle and Lake Macquarie, which is one area. The Respondent was amenable to the accommodation being provided in two areas which met the Applicant’s concern on this issue. The other area is Central Coast.[2]The Respondent provided an appropriate form of words to be included in the decision to give effect to this concession.
[2] Appendix E Location Factors, NDIS – Price Guide (2020-21) – Specialist Disability Accommodation (SDA); NDIS Pricing Arrangements for SDA 2021-2022. The areas are Australian Bureau of Statistics statistical areas.
The Applicant’s goals
Relevant to the issues in this case, the Applicant’s goals in the NDIS Plan approved on 12 February 2020 were changed in the Plan approved on 25 August 2020. The changes are in bold type.
In the first Plan, one of the Applicant’s short-term goals was to explore specialist housing options closer to his parents’ home so he lives in a home that meets his disability needs. One of his medium or long-term goals was to continue to spend quality time with his family.
In the Plan approved on 25 August 2020, one of the short-term goals was to be supported to explore specialist housing options closer to his parents’ home so he lives in a home that meets his disability needs both now and into the future. One of his medium or long-term goals was to continue to spend quality time with his family on a regular basis.
The regulatory framework
Section 3 of the NDIS Act describes the Objects of the Act and relevantly provides:
Objects of Act
(1) The objects of this Act are to:
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
…
(2) These objects are to be achieved by:
…
(b) adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability; and
(3) In giving effect to the objects of the Act, regard is to be had to:
…
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme; and
Section 4 of the Act describes the General Principles and relevantly provides:
General principles guiding actions under this Act
…
(2) People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.
(3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
…
(8) People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.
…
The statutory provisions upon which argument focused were subsections 34(1)(c) and (d) of the Act. Subsection 34(1) of the Act relevantly provides:
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:
…
(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;
Also relevant to the determination of this matter are:
·the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth) (the SDA Rules);
·the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Support Rules);
·the Specialist Disability Accommodation Operational Guideline (the SDA Guideline), and
·the NDIS Specialist Disability Accommodation Design Standard, Edition 1.1 (25 October 2019) (the Design Standard).
The SDA rules
Relevant to this application, the SDA Rules include the following provisions.
Subsection 15(1) provides:
15 Matters to be determined by CEO in respect of each eligible participant
(1) The CEO must determine the following matters for an eligible participant:
(a) the SDA building type that is appropriate to support the eligible participant (see section 16);
(b) the SDA design category that is appropriate to support the eligible participant (see section 17);
(c) the area in which the specialist disability accommodation is to be located (see section 18);
(d) whether the specialist disability accommodation is to be provided as an in-kind support.
Note: The CEO may determine more than one SDA building type, SDA design category or location in relation to an eligible participant. The SDA building type, SDA design category and location must be specified in the eligible participant’s plan: see section 19.
Section 17 provides:
17 SDA design category
(1) For the purposes of determining under subsection 15(1) the SDA design category that is appropriate to support an eligible participant, the CEO must have regard to the specific needs of the eligible participant.
(2) For the purposes of subsection 15(1), the CEO must not determine for an eligible participant the SDA design category of basic.
Schedule 2 of the SDA Rules identifies the relevant design categories as follows:
1 SDA design categories
The following table sets out the SDA design categories and the features for each category.

SDA design category

Item

SDA design category

Features

1

Basic

Housing without specialist design features but with a location or other features that cater for the needs of people with disability and assist with the delivery of support services.

2

Improved liveability

Housing that has been designed to improve ‘liveability’ by incorporating a reasonable level of physical access and enhanced provision for people with sensory, intellectual or cognitive impairment.

3

Fully accessible

Housing that has been designed to incorporate a high level of physical access provision for people with significant physical impairment.

4

Robust

Housing that has been designed to incorporate a high level of physical access provision and be very resilient, while reducing the likelihood of reactive maintenance and reducing the risk to residents and the community.

5

High physical support

Housing that has been designed to incorporate a high level of physical access provision for people with significant physical impairment and requiring very high levels of support.

The Support Rules

Section 2.5 of the Support Rules provides that in administering the NDIS and in approving each plan, the CEO must have regard to objects and principles of the Act including the need to ensure the financial sustainability of the NDIS and the principles relating to plans.
Sections 3.1-3.3 of the Support Rules provide:
Value for money
3.1 In deciding whether 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 CEO is to consider the following matters:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d) for supports that involve the provision of equipment or modifications:
(i) the comparative cost of purchasing or leasing the equipment or modifications; and
(ii) whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
Effective and beneficial and current good practice
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
In its Statement of Facts, Issues and Contentions, the Respondent quoted the following SDA category definitions[3], citing the SGA Guideline:
Improved Liveability – housing that includes better physical access. It also has more features for people with sensory, intellectual or cognitive impairments
.…
Robust Construction – housing that includes a high level of physical access. It must be very strong and durable, reducing the chance of repairs and upkeep. The way it is built should make it safe for you and others. Robust dwellings may suit people who need help managing behaviours of concern. (Emphasis added).
[3] At [24].
The current version of the SDA Guideline includes the following relevant definitions:
1. Improved liveability – housing with better physical access. It also has more features for people with sensory, intellectual or cognitive impairments. For example, you may need walls and floors that are very easy to see, living areas that mean your support workers can see you easily, or very few stairs in your home.
…
3. Robust – housing that is very strong and durable, reducing the need for repairs and maintenance. The way it is built should make it safe for you and others. This type of design category may suit people who need help managing complex and challenging behaviours. We think about how often you currently cause property damage, and the extent of the damage. (Emphasis added.)
The Design Standard sets out the design requirements for each SDA level of funding. Relevantly, the requirements of SDA Robust, that are not required for SDA Improved Liveability, are as follows.
SDA Robust requires that the dwelling must include certain features, including a bedroom exclusively for the use of the participant, on an entry level or a level serviced by a lift.[4]
[4] Cl 1.2. In relation to Improved Liveability SDA, the Design Standard provides that it is reasonable for the bedrooms to be provided on a floor level that has access only via steps (cl 1.1).
SDA Robust requires that timber doors, where provided, shall have solid cores,[5] and laminated glass or polycarbonate resin thermoplastic material shall be provided for all glazed areas, glazed doors and side lights.[6] The rationale for both of these requirements is for safety of users.
[5] Cl 4.2.9.
[6] Cl 4.2.10.
SDA Robust includes a design requirement that kitchen benchtop and cabinetry shall be made of robust materials, required for the safety of users.[7]
[7] Cl 8.16.
A breakout room is not mandatory for SDA Robust but may be provided for some participants with specific requirements. Where a breakout room is provided, cl 18 of the Design Standard sets out the design requirements:
If a breakout room is provided, it shall be a separate room designed to respond to the individual disability-related needs of the participant. It is not a study or living/dining area but is intended to be dedicated and used to enhance learning, exploration or positively impact mood.
This room would, therefore, be expected to make use of activities, equipment, sound and lighting in ways that are appropriate to the current residents.
Note: a breakout room is not a seclusion room.
Further design requirements specific to SDA Robust are set out in cls 25.1-25.5 of the Design Standard:

Clause

Design requirement

Rationale

Applicable to

25.1

Resilient but inconspicuous materials shall be provided, that can withstand heavy use and minimises the risk of injury, including high impact wall lining.

For safe use of the dwelling for some users. Consider provision of high impact wall lining for the full height of the wall or a minimum of 2.4M height from FFL.

Robust

25.2

High impact/vandal proof fittings and fixtures shall be provided (for example, commercial vandal-proof door handles).

Such fixtures and fittings shall be resilient yet inconspicuous so they uphold and do not undermine the character of the home.

For safety and serviceability for users.

Robust

25.3

Participant’s bedroom shall be sound insulated.

For privacy of users. One way of achieving this is to provide wall insulation.

Robust

25.4

Recessed lighting fixtures shall be provided.

To prevent damage and maintain safety for users.

Robust

25.5

Design drawings shall be provided to show layout with areas of egress and retreat for staff and other residents to avoid harm.

This is only required at final/ as-built stage of SDA certification.

For safety of users. This document is to be provided to the site manager if any.

Robust

McGarrigle v National Disability Insurance Agency

In McGarrigle v National Disability Insurance Agency [2017] FCA 308, Mortimer J decided that partial funding of a reasonable and necessary support was impermissible under the Act. She considered what a “support” is from [86] to [88] and what “reasonable and necessary” means from [89] to [93]. In the latter paragraph, Her Honour said:
In my opinion, the text and context of s 33(5)(c), read with s 34(1) indicates that the CEO (or the delegate or Tribunal) must either be satisfied that a support has the character of being a reasonable and necessary support, or that it does not. Once a support is identified and described (to take an example away from this case, speech therapy lessons three times a week), then the question for the CEO (or the delegate or Tribunal) is whether she or he is satisfied that support, as identified, is reasonable and necessary for that particular participant. It may be open to the CEO to be satisfied that a differently identified support is reasonable and necessary: in this example, speech therapy lessons once a week. That determination can only be made on the basis of probative evidence.
The evidence of the Applicant’s mother, Mrs Barrett

Mrs Barrett originally applied for SDA Improved Liveability SDA for the Applicant, which was approved. She then submitted an addendum request for SDA Robust. She told the Tribunal that she did that because she had attended a conference and obtained further insight into SDA.
As set out in the application for internal review, Mrs Barrett contended that the Applicant needs a house designed with inclusions to manage the Applicant’s “sometimes destructive and noisy behaviours, and to plan for his aging. I don’t feel the SDA assessors took into account (the Applicant’s) progressive loss of vision and the functional impacts that will bring to him”. Providing SDA Robust will be better value for money in the long term, "as this will allow more adaptive inclusions in the build and to sustain him into his old age”.
Mrs Barrett’s opening statement at the hearing highlighted one area of disagreement with the Respondent. The Applicant’s behaviours are intrinsic to him. He controls himself moderately well when he is out. At home he wants to express himself, to be himself. His home environment should allow him to do that. The treatment the Respondent proposes, to try to erase some of the Applicant’s behaviours, may not be beneficial or cost effective. She wants the Applicant to develop a positive community presence rather than the negative one he has now. The SDA Robust will help the Applicant achieve that.
Mrs Barrett emphasised that it was important to get the SDA level right because this will be the Applicant’s final move and there will be no retrofitting in future to meet his changing needs. I infer that her objective is to ensure that the Applicant is in the best possible environment to receive care as he ages and her capacity to care for him and oversee his care decreases.
In the My Housing Preferences dated 26 February 2019, she wrote the following.
The Applicant needs his daily routine. He becomes anxious and stressed if there are too many changes which makes it hard for support workers to interpret his needs. He becomes frustrated and angry and may scream and bang his head. If he is following his routine, he is calm and cooperative and easily directed by gesture.
Because he is sometimes quite noisy, his room needs to be sound proofed in order not to disturb and alarm other residents. He needs a free-standing house in the middle of a large residential block of land so his noise does not adversely affect his neighbours.
He gazes at light and flaps his hand and jumps about on his bed as part of his autistic restrictive repetitive movements. He does that daily.
Mrs Barrett referred to two papers in support of her contention that progressive impairment may develop as the Applicant ages in the areas of executive functioning (cognition), further loss of vision and cardiac decline associated with branch pulmonary stenosis: Nicholas, 2000; Toisumi, Vo, Dang, Moriuchi & Yoshida, 2018.[8] The Applicant has a mild cardiac abnormality (Patent Ductus). She argued that the Applicant needs to be housed in an SDA Robust environment now to habituate and develop familiarity with the house layout and the local community while he still has useful vision and can lay down the memories.
[8] Nicholas, J. (2000). CONGENITAL RUBELLA SYNDROME Neuropsychological functioning and implications illustrated by a case study. Nordic Centre for Welfare and Social Issues, Dronninglund, Denmark.
Toizum,i M, Vo, H. M, Dang, D. A., Moriuchi, H., Yoshida, L.M. (2019). Clinical manifestations of congenital rubella syndrome: A review of our experience in Vietnam. Vaccine. 2019 Jan 3;37(1):202-209. doi: 10.1016/j.vaccine.2018.11.046. Epub 2018 Nov 30. PMID: 30503658.
The SDA Housing Plan application for SDA Improved Liveability prepared by Mrs Barrett “with guidance from Summer Foundation template” comprised 46 pages. In the application she wrote:
(The Applicant) has a number of challenging behaviours which require careful property selection when seeking housing in regular investor rental accommodation. (The Applicant) has on occasions put holes in walls and bedroom door; destroyed vertical blinds; destroyed flyscreens; ripped up bedding; and shredded clothing; blocked toilets with toilet paper. These destructive behaviours have declined with higher staff to client ratio of 1:2.
(The Applicant) can at times become distressed and start very loud screeching. He has been known to head-butt support staff and he has in the past engaged in self-harm by picking holes in his right forearm.
(The Applicant) is now reported by support staff to be mostly calm and cooperative with less frequent aggressive outbursts. (The Applicant) is currently living with 2:1 SIL support which possibly explains his current calm behaviour.
During her oral evidence, she provided some additional details of some of the Applicant’s behaviours. She talked about his need for routine and how he exhibits frustration and anger when his routine has changed, including when she was asked to remove the Applicant from accommodation in 2015. She believed that the Applicant was not provided with appropriate support. The staff did not understand his complex behaviours. He needs clear communication by gestures and signs and needs to build up his confidence in new environments. Squealing and self-harm are signs that his needs are not being met. He has no other way to communicate what is wrong. Attacking another person was uncharacteristic of him.
Mrs Barrett also described the Applicant’s capacity to do things outside his accommodation. He goes ten pin bowling and to the coffee shop with a carer. For three years, he has been doing one-on one training at a gym which gives him a lot of pleasure. He is included in a group of young people who tolerate his noise and other behaviours. He replaces one behaviour with another. He had an unnerving habit of clutching his shirt while on the treadmill, as though he was having a heart attack. He has replaced that behaviour with very frenzied rubbing of his knees with both hands, moving his head left to right, and making funny noises for two to three minutes while between pieces of equipment.
From Monday to Friday, the carer tries to demonstrate what the Applicant is doing each day, by velcroing different pictures, for example, a picture of a gym bag.
The Applicant has had the same three staff members since 2013. They have moved with him when he has moved to different accommodation. Some casual staff come in. Mrs Barrett has not approached Lifestyle Solutions (Lifestyle), the provider of the Applicant’s current accommodation, about moving those three staff members again, for reasons which it is not necessary to set out here.
He has picked holes in gyprock walls in a bathroom and bedroom when unsupervised and therefore needs resilient walls. With the current 1:1 supervision he has fewer opportunities to do that.
Because of mucous he puts on surfaces, the surface must be cleaned with a steam-cleaner, particularly in the bedroom.
The Applicant likes light. He currently has a west facing window and likes to stand at the window. The neighbour assumed he was watching his children. A reflective film was put on the window which the applicant peeled off. A form of screening painted black was constructed which restricted the access to sunlight which caused the Applicant to become distressed.
Mrs Barrett emphasised that the need for sound attenuation was out of concern for the other resident of the accommodation and neighbours.
During cross-examination, she explained the history of the records she provided about the Applicant’s behaviour over the years. She received handwritten reports weekly from staff when the Applicant came home. For the previous 12 months they had been emailed to her in PDF documents. She had also provided documents from the Applicant’s school days to demonstrate that his behaviours are the same as they have always been. She and her husband had highlighted relevant behaviours. The only behaviour not referred to in the documents was inappropriate sexualised behaviour with another resident.
Mrs Barrett was questioned about some incident reports which she had not seen before they were obtained for these proceedings.[9] She agreed that she provided them in support of the application for SDA Robust. The reports included a bent curtain rod[10], a hole in the garage wall at the level of the door handle and a broken door stopper[11].
[9] Tender Bundle (TB) pp 387-417.
[10] TB p 414.
[11] TB p 397.
She conceded that there was an absence of evidence of physical damage in the records that had been obtained. She said that the information had only been collected from 2017 and that the replacement of a door because the Applicant put a hole in it occurred not long after he moved to his current accommodation. She also mentioned that the Applicant threw other people’s pot plants out a window and the use of commercial door closers to stop him banging doors. When asked about the absence of reports of holes in gyprock, Mrs Barrett said that they would have been patched up and were too trivial to report. She had not asked the carers about such damage.
Mrs Barrett did not agree that tiles were the answer to prevent the Applicant damaging walls, because he is likely to be blind in 10 years’ time and needs safe, non-slip surfaces, especially in the bathroom. She referred to an Occupational Therapist’s (OT) opinion. When taken to the SDA Improved Liveability design requirements, contained in the Design Standard, for sanitary facilities, Mrs Barrett conceded that they met her concerns. There was no difference between the requirements for SDA Improved Liveability and SDA Robust. Both included tiling from floor to ceiling, wall reinforcement in various locations for locating future grab rails, and prescribed slip resistance of all floors.
Mrs Barrett emphasised that the Applicant’s behaviours have not changed over many years. She only realised six weeks before the hearing that she could get records. To get older records would take a lot of time. She did not agree that any home the Applicant occupied would need only normal general maintenance which would be met by the budget in SDA Improved Liveability.
All assessments relevant to the resolution of the issues in this case prepared by experts were in relation to the Applicant’s current residence. No assessment has been carried out in relation to the Applicant’s behaviour in his parents’ home. Ms Barrett was the only person who was in a position to give evidence about that.
She provided photographs of damage to the family home that had started in 2021. They included small holes in, and what she described as mucous on, the gyprock walls surrounding the toilet suite[12], and a patch mark near a power point[13]. In her opinion, because the Applicant has had 1:1 support recently, his behaviour could be monitored. If he has less support, this behaviour will reoccur.
[12] TB p 418 onwards.
[13] TB p 425.
Ms Barrett said that the Applicant bangs all doors, including car doors, so that carers are reluctant to use their own cars. The handle of the hallway door had to be replaced several times. The original porcelain door handle had to be taken off the door to the toilet. They have done several things to try to stop him banging doors early in the morning, including door closing devices and felt dots where the door hits the frame, which he took off. An OT recommended some sensory objects in his room. They have tried lava lamps, which he unplugged, and colourful downlights on the ceiling.
Ms Barrett did not agree that notes showed that the Applicant put himself to bed and went to sleep. She said that there is a different experience at home and referred to notes made by staff that the Applicant fell asleep in the car and went back to bed after a shower which showed that he had been awake all night and did not sleep until about 1:30 am. She did not believe that the Applicant’s sleeping pattern was different when he was at home.
Ms Barrett submitted a Noise Level Chart and a Movement Chart prepared by Lifestyle.[14] The Noise Level Chart had entries from 10 to 25 June 2021. Records were made only when the Applicant was awake. The levels were descriptive: “no noise at all – is awake”, “normal speaking level”, “slightly louder than normal”, “yelling – lets out a loud yell”, and “very loud”. The Movement Chart had entries for days from 10 to 25 June 2021 inclusive and described ten types of movement, such as “slamming cupboards and doors” and “rubbing/hitting head”, and the location of the Applicant within the residence and its yard.
[14] Exhibits A1 and A2, respectively.
Ms Barrett agreed that the Movement Chart did not include destructive behaviour. She did not agree that the Noise Level Chart demonstrated that noise was not a problem. She agreed that records from Lifestyle did not suggest that noise was an inordinate problem for another occupant of premises and that a report by Mr Sean Rosewood, Behavioural Support Practitioner, did not suggest such a problem. However, she sought to contrast the impact of noise for a short period on a person who did not have an intellectual disability, with the impact of noise on someone with an intellectual disability over a longer period and which would disrupt the status quo in the accommodation. In addition, the Applicant’s other behaviours, rubbing his knees and moving his head from left to right, may affect another occupant. In her opinion, a soundproof bedroom and another room set up with sensory objects where the staff could direct the Applicant to go, would assist.
When asked about the absence of evidence of high noise levels and interruptive and disturbing behaviour, Mrs Barrett said that was because of the one-to-one staff/support worker ratio which allowed close monitoring of his behaviour. That will change if there are more people to be cared for and therefore less supervision.
She agreed that she would not want the Applicant to be in an environment where he might be subject to a physical outburst from another occupant and that someone with a propensity for outbursts would need SDA Robust. She said that one could try not to choose such occupants. The design requirements for houses cannot be “cherrypicked”. The Applicant needs requirements that are only specified for SDA Robust.
Mrs Barrett agreed that the Applicant goes to his bedroom to sooth himself. When asked about the Design Standard for breakout room that states that it was not a seclusion room but a place to do activities, she said that it was a place for other sensory items that would distract the Applicant and prevent more restrictive behaviour management strategies being employed.
Ms Barrett asked rhetorically why over a period of 15 months, Lifestyle had not found a client who can live with the Applicant, which implied that the reason was his behaviours.
Expert evidence
There were numerous expert reports in evidence dating from 1984. Two experts gave oral evidence in addition to providing reports: Mr Sean Rosewood, behaviour support clinician, and Mr Peter Sykes, occupational therapist.
Alix Hicking and Malcolm Choat
Alix Hicking, behaviour support practitioner and provisional psychologist, and Mr Malcolm Choat, registered psychologist and behaviour support practitioner, prepared a Behavioural Assessment Report dated 4 December 2020 and a Positive Behaviour Support Plan dated 4 January 2020.
The Applicant’s destructive behaviours identified from both reports that are relevant to the SDA level were knocking over household items, breaking household items by throwing them at the ground, slamming doors, tapping support staff and self-injurious behaviour. The following examples were given. He had been observed to knock photo frames from their shelf. Support staff reported that the Applicant had thrown pot plants at the ground and broken them and had slightly hit support staff to tell them to go home. The support worker said the latter behaviour was rare and had occurred approximately two times in the more than ten years she had been working with the Applicant.
Mrs Barrett reported the following. The Applicant has slammed doors continuously when unable to go in a car, resulting in a hole in the wall that needed to be fixed. The door handle caused the damage. He would roughly close furniture drawers which may lead to property damage. He will slap his own face when in bed and in a car, rubbing his ear vigorously and then start hitting his head forcefully. He can be very vocal, making loud screeching noises which may cause distress to other participants, support staff and neighbours. He likes to light gaze, that is, to stare into light compulsively which in the past led to disagreements with neighbouring residents because he would stare out of his bedroom windows resulting in neighbours alleging he was invading their privacy.
The reports stated that that those behaviours were longstanding but had increased in intensity and frequency in November 2020. They occurred approximately two times a week for less than five minutes. The intensity was medium to high.
Triggering situations were: when the Applicant is told he was unable to go out; on occasion when there is a change in routine; when multiple people are in the same area as he is; and when he is in pain. The writers of the reports “hypothesised” or “assumed” that the function of the behaviour is to communicate or bring about a change in a current situation. The behaviour could be directed towards gaining social attention or to gain tangible reward.
The Positive Behaviour Support Plan identified replacement behaviour/s and proactive strategies. One of the latter was to create a calm zone with the Applicant that contained stimuli that assist in regulating emotions which might be his room:
However, consider whether an alternative location might sometimes be required if he needs support but prefers to be alone in his room.
Strategies to be used in the calm zone were assisted breathing, counting forwards or backwards and a sensory activity, stress ball.
The Behaviour Assessment Report recommended behavioural management services of 35 hours focused on developing and implementing a behaviour support plan to reduce behaviours of concern. This falls in the support category Capacity Building Supports – Improved daily living.
During cross-examination, Mrs Barrett expressed the firm view that the recommendations for the 35 hours of support to redirect the Applicant’s behaviour would be ineffectual because the Applicant does not have the capacity to benefit from them because of his vision and hearing impairments. She accepted that Mr Rosewood had seen the Applicant half a dozen times from 2015 and the Applicant has only had seven hours of such therapy from 2015 and had had limited exposure to the therapy proposed.
Mr Rosewood
Mr Sean Rosewood was the Applicant’s Behaviour Support Practitioner from 2015 to early 2019. He prepared a Positive Behaviour Support Plan dated 1 February 2019 (the 2019 report) and a report dated 21 July 2021, prepared for these proceedings (the 2021 report). The 2021 report answered questions posed by a disability advocate.
The 2019 report is very comprehensive. It sets out the Applicant’s various behaviours and the motivations for those behaviours. Because of his sensory impairments (vision and hearing) he relies on touch and smell and may be startled or annoyed by sensory information that he doesn’t process well (visual and auditory). ASD creates a strong preference for restricted, repetitive, and limited interests.
Most relevant to this decision is the Applicant’s behaviour related to distress, frustration, and anxiety:
Unexpected events, change in his environment or routines, irritating sensory input and unmet expectations can bring a range of behaviours as (the Applicant) reacts to the situation with screaming, hitting, headbutting or self-harming (hitting himself). This is a communicative expression of his distress about the situation. His level of arousal is heightened, and he may enter a “fight” mode in response to a perceived threat to his safety.
He may also attempt to fix the problem for himself or do something unexpected as he thinks it time to do something else. This can include rapid movements, forcefully pushing his way past other or attempting to open the car door when in transit.

The 2019 report sets out strategies to prevent or reduce the occurrence and severity of behaviours of concern, including active support and communication sensory strategies, relying on input from an OT and speech pathologist.
At the end of the 2019 report, under the heading Data Collection, Mr Rosewood wrote:
Always use the incident reporting system when required. Record behavioural issues in behaviour support notes including successful strategies that are implemented to prevent behaviours from escalating.
In the 2021 report, Mr Rosewood recorded the following.
He visited the Applicant’s accommodation at least a dozen times from 2015 to 2018 to interact with the Applicant and conduct assessment and training activities with his accommodation team.
Prior to his first meeting with the Applicant in 2015, the Applicant had uncharacteristically physically attacked a Disability Support Worker in accommodation provided by Lifestyle after he “had been rapidly transitioned from his previous accommodation”. Ms Barrett raised her concerns with Lifestyle and insisted that he would not return to supported accommodation with Lifestyle until an alternative more suitable property could be located and staff adequately trained to meet his day-to-day needs to prevent behaviours. He subsequently moved to his current accommodation.
Mr Rosewood did not directly answer questions which sought his “professional opinion” about whether the Applicant required housing that incorporated a high level of physical access, had been designed to be very resilient, and that reduces the likelihood of reactive maintenance and reduces risk to residents and the community. He described the Applicant’s behaviours, including:
He likes to lay in bed and rock forcefully with his whole body in repetitive rhythmic jerky movements, this may go on for hours and I recollect observing the gyprock walls had been damaged with cracks and holes, paint work worn off from contact with the bed and bedding.
In the 2021 report, Mr Rosewood responded to a question whether SDA Improved Liveability with SIL, with 35 hours for development and implementation of a behaviour support plan to reduce behaviours of concern and 10 hours of an occupational intervention program targeted at achieving all of the Applicant’s goals, are cost-effective supports which will achieve the same benefits as SDA Robust. Specifically, he was asked about any likely reduction in the Applicant’s destructive behaviour over time and if those supports would eliminate the Applicant’s need for SDA Robust and whether they should be provided in addition.
Mr Rosewood’s opinion, based on his experience with the Applicant, was that the Applicant’s destructive behaviours and loud vocalisations are long term, treatment resistant, habitual features of his day-to-day functioning. Such behaviour is the most efficient and effective way for the Applicant to meet his material, emotional and sensory needs. It is how he relaxes, feels good, communicates, copes with stress, and entertains himself. Therapeutic supports are essential but are primarily educative for his support team to prevent an increase in frequency and severity of those behaviours.
In his opinion, the elimination of those behaviours “is clinically, ethically and practicably unjustifiable”. He gave detailed reasons why. In those reasons, he mentioned the following behaviours: throwing items, physical aggression and repetitive forceful rocking, which he described as being long term, entrenched behaviours stemming from life experience and development conditions. He wrote:
(The Applicant’s) destructive behaviour and vocalisations are easy for him to do, instantly accessible, require little thought or planning and are immediately gratifying and successful. This makes them extremely difficult to reduce to a substantial degree from the current low levels. In addition, he doesn’t tolerate correction, likes routine and sameness and does not indicate any wish to reduce behaviours. (Emphasis added.)
During his oral evidence, Mr Rosewood agreed with Ms Cullen’s criticisms (see below) of the Hicking/Choat report, gave detailed evidence why some of the recommended strategies would not work, and said that any replacement behaviour needed to be as simple, accessible and efficient to use as the Applicant’s current behaviours are. He said that some of the strategies directed to other outcomes may be effective. He was aware of one incident which should have been reported but was not. The Applicant threw a plate or cardboard at another resident which aggravated an eye injury and caused a further impairment to her sight. Mr Rosewood was working with the other resident.
In the 2020 report, in relation to the need for a breakout room, Mr Rosewood set out the definition in the Design Standard and proceeded:
(The Applicant’s) bedroom is a safe and private space and is (an) effective space for him to feel calm by engaging in sensory activates (sic) such as rocking, flickering light for visual stimulation and vocalisations all (sic) which are soothing, regulating, stimulating and calming for him.
Mr Rosewood then wrote that Mrs Barrett had told him that aptitude testing in support employment showed that the Applicant has a strong aptitude for learning and performing sequentially based and matching tasks that can be performed routinely and presented consistently. In his opinion the Applicant’s bedroom is not a suitable for supporting enhanced learning and exploration. He concludes:
In the absence of living and dining areas where (The Applicant) can be effectively and safely supported to learn and practice tasks of daily living and domestic life a breakout room would be required to support participation and learning of tasks of everyday living.
When Mrs Barrett asked him about the need for a breakout room, he made it quite clear, as he had in his report, that one was not necessary if there was a living and dining space.
During examination by Mrs Barrett, Mr Rosewood said that in 2015 he provided a Behaviour Support Program to transition the Applicant to his current accommodation. He trained staff in behaviour support and communication techniques. The 2019 report was an update of a 2018 report which was prepared when the Applicant had funding and information to develop a plan for review after a year. In answer to one question, he said that he would recommend SDA Robust.
During his oral evidence Mr Rosewood said that he saw the Applicant for four hours on one occasion and for an hour or half an hour on another. He heard loud vocalising once for 15 seconds.
During cross-examination, Mr Rosewood agreed that if the Applicant was repeatedly breaking items or putting holes in walls or caused disturbances regularly, he would have been engaged by Lifestyle to ameliorate the behaviour. He was a strong proponent of the involvement of the speech therapist to improve the Applicant’s communications with staff by educating the latter to use the appropriate signing, including learning signing the Applicant himself had developed. He agreed that the greatest risk that the Applicant would “act out” was if he could not communicate. He agreed that the Applicant was not highly destructive but had destroyed some items in the house. In relation to the damage to the door from a handle, he said that it depends on how long the Applicant lives in the home. He does such things periodically and may do them more often. He agreed that there was no evidence that sound proofing because of the Applicant’s vocalisation would increase the Applicant’s quality of life.
Mr Sykes
Mr Sykes, OT, provided an eight-page report dated 13 March 2020 for an NDIS review (the first report). At that time the Applicant was living with one other person and one support worker. Mr Sykes provided a further report dated 28 July 2021 (the second report).
In the first report, Mr Sykes wrote:
The purpose of the assessment was to provide current functional information across multiple domains, including maladaptive behaviour to establish the need for Specialist Disability Accommodation. The assessment was to also make best practice recommendations for the proposed SDA property with considerations for individualised design for enabling independence, safety and quality of life.
In the Functional Assessment section, Mr Sykes wrote:
… (The Applicant) has a number of behavioural difficulties around appropriate socialisation when at home and in the community when there is minimal/no supervision (i.e. trigger). (The Applicant) has a number of stereotyped behaviours which include making loud noises, rocking on bed and sometimes bedroom floor, sniffing others’ hair and upper body, complex finger movements and walking 2 steps forwards and 2 steps back or similar. (The Applicant) has also had difficulty with neighbours in recent years when he has become fixated and thrown items over the fence at his current property at (suburb). (The Applicant) has had a history of high functional support needs and behavioural disturbance which led to carer burnout and subsequent placement in his own shared living environment with paid support and supervision 24/7. (The Applicant) has a developmental capacity around the age equivalent of a 2-3 year old based off historic and current assessment data.
He listed the following design specifications:
▪ Robust Liveability standards
▪ Ratio of 1 support worker for 2 participants
▪ High impact wall linings
▪ High impact fittings and fixtures
▪ Secure windows
▪ Secure internal and doors
▪ Sound proofing (bedroom)
▪ Laminated glass
▪ Emergency communication system (adapted for sensory disability)
▪ Contrast considerations (no black or white walls/floors)
▪ Staff bedroom to be a safe place for any co-resident with behavioural concern
▪ No steps – level access throughout entire property
▪ Wider door frames for ageing in place (mobility equipment)
In respect of Mobility/Transfer Support, Mr Sykes listed, relevantly:
▪ Handrails
▪ Grab rails
▪ Slip-resistant coatings
▪ Levelled access
…
In relation to personal care and safety, Mr Sykes listed personal alarm (any night-time waking) and activity monitoring devices.
In his second report, Mr Sykes referred to the Design Standard, among other documents, including his first report. He had carried out no new observations or interviews. He had not provided behaviour support intervention or clinical training to the Applicant.
Considering the Applicant’s impairments and behaviours, “ideally”, future accommodation should consider best practice for sensory impairments “such as” contrast strips at entry ways and hobs, level access wherever possible to prevent fall risks, and ample grabrails and handrails.
In Mr Sykes’ opinion, the Applicant was “likely to require housing to reduce the likelihood of reactive maintenance”. That is, he considered past behaviour as well as current behaviour because function can change over time in response to different variables including support ratios, bereavement periods and overall organisational management needs. For that reason, he included the provision of reinforced wall linings, although he found that the Applicant’s current behaviour profile provided minimal evidence of picking holes in gyprock and that that behavioural risk may be understood in the context of living in an environment with a lower support worker to participant ratio.
Based on reducing the likelihood of reactive maintenance, Mr Sykes also recommended securely fitted door handles and secured windows with ‘extra’ measures to prevent compromise to a safe and secure environment.
Mr Sykes’ opinion was that the Applicant’s behaviours such as manipulating doorhandles repetitively and making loud noises, should be managed rather than treated intensively because of the Applicant’s limited intellectual functioning and ethical issues of coercive practices versus respect for individual rights and differences.
Mr Sykes referred to a speech pathology report that stated that the Applicant makes vocalisations up to 84 decibels, the equivalent to a lawn mower, which can occur for up to 60 minutes at any time of day or night. He concluded:
This suggests the need for circulation space around the property and sound proofing to reduce further risks of stigmatisation of disability.
Mr Sykes did not list a speech pathology report as a document he had referred to for the preparation of his reports. I was unable to find any such document or any other reference to this 84-decibel reading in the evidence.During cross-examination, Mr Sykes was asked about that reference. Finally, he said that he had not put in a reference but he had come across the document. He said that he got the 60 minutes from the Movement Chart.
I rejected documentation setting out audio recording data for two days, 18 and 24 July 2021, that Mrs Barrett wished to tender which may have been the source of that information. Two pages of that documentation showing graphs of the recordings were included in the Tender Bundle but were not referred to.[15]
[15] At pages 304 and 318 respectively.
In support of his management as opposed to treatment approach, Mr Sykes referred to the fact that the Applicant has no insight into the effects of his behaviours on others because of his hearing impairment and intellectual disability, and to the limited benefits of the proposed supports and potential negative psychosocial impacts on the Applicant. The appropriate management approach was the provision of SDA Robust, as a form of “environmental modification”.
In his opinion, the Applicant’s bedroom needs to be large enough to “incorporate engagement in activities whilst vocalisations are occurring”. The accommodation model should include a breakout room (in addition to a living area which is not a dining room):
A separate breakout room would appear to provide more supervision, socialisation and opportunities for skill development with access to support workers.[16]
[16] The second report, Tender Bundle p 336.
Finally, Mr Sykes considered it best practice in the context of SDA Robust design, to maximise circulation space “to avoid incidents … between participants with complex behavioural needs”.
During his oral evidence, Mr Sykes described the Applicant’s current behaviours as “low severity” when talking about the treatment approach possibly resulting in psycho-social issues. When asked about the support worker giving no indication of the need for sound proofing or SDA Robust, Mr Sykes said that he would not expect a support worker to make a recommendation. He agreed that the Applicant’s previous experience with a ratio of one support worker to two residents had been very good.
Mr Sykes was cross-examined about a note in his first report that Mrs Barrett had indicated that SDA Robust would be suitable for an additional participant who may have externalising behaviours (that is, property damage potential) who may occasionally attempt physical assault. Mr Sykes proposed carefully matching a potential resident to reduce that risk.
He conceded that SDA Improved Liveability was a very resilient environment but said that it was not resilient in the same way SDA Robust was.
Mr Chan
Mr Stephen Tsz Hang Chan, occupational therapist, prepared two reports: Occupational therapy assessment report: Functional Tier 3 dated 8 January 2021; and Occupational Therapy Housing Assessment Report dated 20 January 2021, which included a table which assessed the Applicant’s needs against each clause of the Design Standard. It is unnecessary to repeat information about the Applicant’s behaviours.
Mrs Barrett reported to Mr Chan that the noise the Applicant makes has caused distress to neighbours who have complained to staff and causes them to tend to avoid interaction with him. The Applicant would like to interact and socialise with his neighbours but is unable to do so in his current accommodation and is quite socially isolated. During the interview with the support worker, she reported being able to hear the noise produced by the Applicant in his room. The Applicant had recently started to display aggressive behaviours within his accommodation for reasons unknown. That behaviour included throwing objects around the house and damaging the curtains in the room.[17]
[17] Report dated 8 January 2021, TB p 232.
The following extracts from the 8 January 2021 report are informative:
Getting along with people It is reported that Mr Barrett has extreme difficulties with getting along with other people including dealing with unfamiliar people, making new friends, maintaining friendships and getting along with the people he is close to.
Participation in society It is reported that Mr Barrett has extreme difficulty in the Participation in Society domain. Mr Barrett experiences significant barriers to engaging in the community and is extremely impacted by health conditions and the consequences of these.
The support worker reported that the Applicant had nil difficulty sleeping at night but sometimes would wake up during the night for toileting and sometimes he would get a drink or some snacks from the fridge. She said that he usually is able to get enough hours of sleep every night.
In both his reports, Mr Chan recommended SDA Robust for the following reasons which I have summarised. The Applicant requires materials that can withstand heavy use and with low risk of injuries, including high impact wall lining fittings and fixtures, secure windows, doors and external areas, appropriate sound proofing and laminated glass windows. He needs accommodation with no steps or stairs due to his deteriorating eyesight. He requires a retreat room to calm down whenever he has an episode of accelerated aggressive behaviour. Consideration must be given to providing adequate space and safeguards throughout the property to accommodate the needs of residents with complex behaviours, that is, aggressive behaviours towards self or support workers.
In Mr Chan’s opinion, the combination of 2:1 SIL and appropriate SDA may reduce the Applicant’s requirement for some of his capacity building supports and therefore indicates better value for money. The provision of a designated area to retreat to when he needs to become calm would reduce his need for regular behaviour management interventions and home repair/maintenance.
Ms Cullen
Ms Emma Cullen, OT, of ORS Occupational Therapy, prepared a report dated 14 July 2021 but was not available for cross-examination. No issue arose from her unavailability. Following is her summary of SDA Robust:
The eligibility criteria for robust SDA can be applicable if a resident acts in a way that may not be safe for people within their living environment. It can include walls, windows and the use of materials that are not easily broken, sound proofing to reduce the impact on relationships with neighbours, secure windows and doors.
Ms Cullen wrote that the proactive strategies to address the Applicant’s noisy and destructive behaviours recommended in the Hicking/Choat Behaviour Support Plan had been implemented in the home environment for several years. Visual scheduling and teaching the Applicant relaxation techniques are difficult due to his vision impairment and intellectual disability “resulting in unachievable outcome”. The recommendations of praise following ‘appropriate behaviour’ are not probable to cease or reduce the noise level within the home.
She supported soundproofing the Applicant’s room to ensure other residents of his home, including staff, and neighbours were not impacted by his lifelong behaviour of making loud noises/vocalisations. She referred to the choice of having his bedroom located at the rear of the house to reduce noise within other areas of the home and minimise neighbours’ complaints. She stated that Lifestyle was attempting to fill the vacancies in the home and recommended soundproofing to ensure the Applicant was able to build a relationship with residents and maintain a liveable environment.

Ms Cullen referred to the past complaint made by previous neighbours about his gazing out the window and scaring the daughters of a neighbour.
She did not recommend a breakout room because the Applicant prefers to spend the majority of his time in his bedroom and may become agitated if directed to a breakout room. She recommended sensory items suited to his sensory preferences be provided to assist his sensory input requirements.
She noted that recommendations had been previously made to include high impact wall lining and fittings/fixture but ORS was unable to locate any evidence for this requirement in his current residence. She referred to evidence about evidence of gyprock patches missing in the bathroom of the family home. She was unable to recommend those items.
In summary, Ms Cullen recommended SDA Improved Liveability and the SDA Robust design of soundproofing the bedroom.
Ms Kerr
Ms Stephanie Kerr, an OT from Vision Australia, prepared a report dated 18 May 2018. She addressed the Applicant’s goal of exploring specialist housing options closer to his parents’ home so he lives in a home that meets his disability needs. He was living with two other adults with complex support needs. They shared supports predominately at a 3:1 ratio from Monday to Friday. The Applicant stayed with his parents at the weekend.
His carer reported that he was generally well mannered and followed instructions. He shared his supports while they are assisting other residents. He was aware of his routine and gets excited about going out for the day and was compliant when getting ready. During the assessment period there were no safety concerns noted for the Applicant living in a 3:1 care ratio.
Mrs Barrett provided information about the Applicant’s “normal Saturday” which was set out in a table. He does not need active support at night. He wakes up at 8 am with daylight, sometimes later. He gets up at 9 am (when it suits him), has breakfast and medications and then showers, shaves, and cleans his teeth. From 11 am to 12 noon he is in his bedroom. After shopping and community access until 3 pm, he rests in his bedroom until 4 pm when he wanders about the house seeking food and drink. He is in his bedroom from 5 pm until 6 pm. He then monitors dinner preparation, has dinner, changes into his pyjamas and rests in the lounge room. At 9 pm he goes to his bedroom and sleeps from 10 pm. The last entry was 6 am when he is asleep. He does not need active support at night.
The Applicant’s carer reported that she will occasionally get up to assist him, but generally he is only looking for food during the night, like yoghurt or biscuits, which he can get himself. Mrs Barrett reported that she will get up to monitor what he eats when he is at home. “However, it is noted this is not a safety concern”.
Ms Kerr wrote that the Applicant’s behaviour is well maintained when he is in the same routine and is able to communicate his needs effectively to his carers. She noted that his parents’ ability to provide informal support to him is changing due to their aging health and ability to drive a three-hour round trip to drop him back to his home. It would be beneficial for him to move closer to them so they can still offer informal supports but are not required to have him for a whole weekend or drive the three-hour round trip. Because he stayed with his parents almost every weekend, he was able to access the community and maintain relationships in the area where he grew up.
In relation to the Applicant’s challenging behaviours, Ms Kerr wrote:
If the participant has episodic or occasional challenging behaviours there is a behaviour support plan in place which has been demonstrated to effectively support the person within the available support: (The Applicant) has a behaviour support plan in place and has not had any significant behaviour episodes since 2015. (The Applicant) will become distressed when his routine is changed, when he is not understanding the requests of carers, when he does not understand what is happening. However, if he is managed well and is in the routine of his day to day life (the Applicant) is unlikely to have ongoing behaviour issues that place him or others at risk.
Relevantly, Ms Kerr recommended 2:1 care ratio to maximise the Applicant’s social and economic participation, that he live closer to his parents and that increased core supports be required for him to access the community on weekends because of his parents’ decreasing ability to care for him. The Applicant had recently built capacity in his communication skills with the assistance of his speech pathologist and requires continual practice of these skills in the community, so he does not lose functional capacity, which means having supportive care workers who know his ability and encourage him to use his skills in the community.
The Respondent’s contentions
The Respondent contended that SDA Robust does not meet the criteria of s 34(1)(c) of the Act.
To meet the object of the Act, the cost benefit analysis involves the identification of a benefit which is said to be necessary but which is not presently provided for by the support recommended by the CEO. In the absence of having identified a deficiency in what is otherwise included in the design category presently provided for, any cost analysis fails.
The Respondent noted that the Applicant had identified some areas of concern that warrant, in his submissions, an assessment under Robust SDA, but other than having done so, the Applicant has failed to identify the benefit attributable to the design category that is not otherwise provided for under the design category presently funded by the NDIA.
The benefits “achieved” can be met through cost-effective supports, namely SDA Improved Liveability with SIL and supportive therapeutic supports, namely behaviour intervention.
The Respondent noted that the following supports have been recommended by the Applicant’s expert witnesses:
Psychologist Malcolm Choat – 35 hours focussed on the development and implementation of a behaviour support plan to reduce behaviours of concern
Occupational therapist Stephen Tsz Hang Chan - 10 hours of an occupational intervention program targeted at achieving all of the Applicant’s goals.
The Respondent considers that these supports are reasonable and necessary supports in accordance with s 34 of the Act. The Respondent intends on including these supports as part of the Applicant’s next Plan review.
The Respondent argued that Robust SDA does not meet the criteria of s 34(1)(d) of the Act. Relevant to the Applicant’s circumstances, SDA Improved Liveability is specifically designed for people with sensory, intellectual or cognitive impairments. The evidence does not support a finding that the Applicant requires a house that has been designed to incorporate a high level of physical access provision for people with significant physical impairment and requiring very high levels of support.
Consideration
Some of the evidence was directed to supports which are not requirements of either SDA Improved Liveability or SDA Robust. There is no provision for either a personal alarm to alert support workers to the Applicant’s movements, for example, outside the accommodation, or for emergency alarms suitable for a person with sensory impairments. I accept the Respondent’s submission that those supports fall within the category of assistive technology for which there is a budget in the Applicant’s Plan.
The evidence about the Applicant gazing out a window causing a neighbour to complain is not a matter that SDA Robust addresses. Laminated windows are for safety. The requirements do not suggest that they would prevent the Applicant being seen by a neighbour if he was gazing out a window.
The case focussed on the following requirements of SDA Robust which are not requirements of SDA Improved Liveability: a sound-proofed bedroom, a breakout room and resilient construction materials.
Reference was made to the provision of physical access. The SDA Rules state that SDA includes a reasonable level of access and SDA Robust provides a high level of access. The Design Standard provides that both SDA Improved Liveability and Robust incorporate a reasonable level of physical access. The principal difference in respect of the Applicant is that SDA Robust requires a bedroom to be on an entry level or serviced by a lift. The General requirement for SDA Improved Liveability states that “it is reasonable for bedrooms to be provided on a floor level that has access only via steps”. I do not understand that to be a mandatory requirement. In this case, a new build of SDA Liveability may provide a bedroom for the Applicant on the entry level or on a level serviced by a lift, although cost considerations may preclude the latter option. While the Applicant is visually impaired, he is very physically active. He is not physically impaired. He is not seeking SDA Fully Accessible or SDA High Physical Support which are for people with significant physical impairment and requiring very high levels of support, respectively. I understand Mrs Barrett’s concern to provide housing which will accommodate a deterioration in the Applicant’s physical condition as he ages.
I am not satisfied that SDA Robust would provide a benefit to the Applicant in respect of physical access that is not provided by SDA Improved Liveability. I am not satisfied that SDA Robust represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the costs of alternative support pursuant to s34(1)(c).
Returning to the main issues of concern, a sound-proofed bedroom, a breakout room and resilient construction materials, whether the opinion of an expert is persuasive depends on the reliability of the facts on which the opinion is based.
The Applicant provided to the Tribunal records about 42 incidents involving the Applicant from 1984 until June 2021 and an index.[18] I acknowledge that Mrs Barrett was only able to access records from the Applicant’s accommodation from 2017 when there was a change of record keeping systems and did not have time to access other information.
[18] TB pages 370 to 417.
The Applicant argued that the benefit of the provision of a sound-proofed bedroom would be to improve the Applicant’s relationships with co-residents, neighbours, and presumably support workers, by reducing the detrimental impact upon them of his loud vocalisations when he is in his bedroom.
The noise is best described in the Applicant’s Statement of Lived Experience dated 3 July 2021:[19]
While ever I am awake, and at varying intensity and loudness, I make rumbling guttural noises. Those sounds make my body vibrate and I seem to like that sensation. I ‘feel’ the vibration, so I repeat the noise over and over. This can disturb other people I live with, but I cannot be stopped. It is me. It seems to give me pleasure. If I could not make noise I would be angry. If I did not have CRS damages neurones I would not have this need – this compulsion to make and repeat this noise.
[19] TB at pages 276 to 293.
The contemporaneous documentary evidence does not suggest that the Applicant does make loud vocalisations in his bedroom or that they have caused difficulty for his relationships with support workers or other occupants of his accommodation, including before about May 2020 when he was living with up to another two people. There is evidence that on one occasion a neighbour complained but that is not in the incident reports. It was explained that the back bedroom was deliberately chosen to distance the Applicant from neighbours and his co-residents which suggests that was to avoid a complaint from neighbours. I note that the recorded complaints from neighbours relate to the Applicant looking out of his window and over the fence at the neighbour’s daughters, knocking on the neighbour’s front door, and throwing things over the fence, none of which will be addressed by the provision of SDA Robust.
The Applicant’s loud vocalisations are not limited to when the Applicant is in his bedroom. In his 2019 report, Mr Rosewood does not mention the Applicant making loud vocalisations in his bedroom, where he spends much of his time in his bed rocking rhythmically. In the Escalation Table: Behaviour related to distress, frustration and anxiety, he includes in early warning signs: making loud groaning noises, vocalisations, talking to himself, making little grunts, groans and moans. The escalation phase includes pitch of escalation increases to a scream. Mr Rosewood demonstrates that the behaviour is related to distress, frustration and anxiety which occurs when his needs are not being met. The incident records indicate that that occurs when he is not in his bedroom. The noise as described by the Applicant seems to be a different behaviour.
If noise in the Applicant’s bedroom, including at night, was such a concern when the Applicant is in his accommodation, I would expect that it would be recorded. The information Mrs Barrett provided to Ms Kerr referred to earlier in this decision does not suggest that loud vocalisations were a cause for concern in her home at that time, including at night. I appreciate that she and her husband may be used to it as part of the Applicant’s normal behaviour at home. Apart from some increase in destructive behaviours in November 2020, the evidence does not suggest that the Applicant’s loud vocalisations have increased over time.
The evidence does not demonstrate that there has been a detrimental impact on other residents or a support worker when the Applicant is in his bedroom or anywhere else in his accommodation for that matter, other than as an aspect of escalation of his behaviours related to distress, frustration and anxiety where other behaviours can also be of concern.
Mrs Barrett’s evidence was inconsistent. She said both that the loud vocalisation occurred “sometimes” and that it was “constant”. The reports of this aspect of the Applicant’s behaviour were mostly provided by Mrs Barrett.
I am not satisfied that there is a benefit achieved by the provision of a sound-proofed bedroom. Therefore, I am not satisfied that it represents value for money in terms of s 34(1)(c) of the Act.
For the same reason, I do not consider that the provision of a soundproofed bedroom, will be, or is likely to be effective and beneficial for the participant, having regard to current good practice pursuant to s 34(1)(d) of the Act.
The evidence in support of a breakout room is weak. Neither Mr Rosewood nor Ms Cullen support the need for a breakout room. Mr Chan and Mr Sykes do. There were two bases for its provision: to provide a space where the Applicant could calm down with sensory items, and to provide a space where he could learn a skill, based on Mrs Barrett’s report that he had been assessed as having an aptitude for learning and performing sequentially based and matching tasks that can be performed routinely and presented consistently.
A breakout room is not mandatory for SDA Robust and is not a study or living/dining area.[20]
[20] Design Standard, cl 18.1.
I find Ms Cullen’s reason for not recommending a breakout room persuasive. The evidence shows that Applicant prefers to spend the majority of his time in his bedroom. I would add that that is a long-term entrenched behaviour. In her opinion, he may become agitated if directed to a breakout room. She recommended providing sensory items suited to his sensory preferences to assist his sensory input requirements. The provision of a breakout room will not benefit the Applicant. It will be detrimental to him.
Ms Cullen’s opinion is consistent with the overwhelming expert opinion evidence that the Applicant has a limited capacity to learn new behaviours and some expert evidence that learning new behaviours may have adverse consequences for him. That body of expert opinion was the reason the Applicant opposed the Respondent’s proposed alternative support, a behaviour support plan, with respect to the provision of a soundproofed bedroom. The Applicant’s arguments in respect of the two supports were inconsistent.
While Mr Rosewood recommended an area other than a bedroom for supported enhanced learning and exploration, he only suggested a breakout room in the absence of living and dining areas. Another basis for his recommendation seemed to be Mrs Barret’s evidence about the Applicant’s aptitude for learning and performing sequentially based and matching tasks that can be performed routinely and presented consistently. That evidence was not supported by expert evidence. Mr Rosewood also mentioned learning and practising tasks of daily living and domestic life. A breakout room is not a study. Mr Rosewood’s recommendation depends on there being no living and dining room. The Design Standard specifies that as a minimum, dwellings must contain no less than one living/dining area.[21]
[21] Design Standard page 8.
I am not satisfied that a breakout room 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 pursuant to s 34(1)(c).
For the same reasons, I am not satisfied that the breakout room will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice pursuant to s 34(1)(d) of the Act.
The evidence supporting the need for resilient construction materials is not strong. The incident reports that include damage to items relevant to SDA Robust include: a smashed window at home in 1984; two broken windows at home in 1991; a smashed hole in wall at the level of a door handle on the garage door at his accommodation on 23 September 2020; and on 12 November 2020, at 08:31 the Applicant was hitting the loungeroom wall with his open hand and then threw items from the top of the television onto the floor, and at 17:06 threw photo frames on the floor and later an artificial plant pot which broke. There was “small” damage done to the wall.
Bent curtain rods, broken venetian blinds, damage to heaters, vases, photo frames, doonas, taxi seats and the like are not relevant to the provision of SDA Robust.
Mrs Barrett reported other damage which had occurred before 2017, including damage to a door or wall when the Applicant slammed a door soon after moving into his current accommodation. She provided photographs of small holes in the gyprock wall surrounding the toilet suite in the home of the Applicant’s parents which had occurred in the previous six months, which will be adequately addressed by tiling provided in SDA Improved Liveability. Mr Rosewood attributed the damage around the bed in the Applicant’s room to his rhythmical rocking. It is unclear over what period of time that occurred. It seems to be wear and tear over some years. It does not reflect a destructive behaviour which was the focus of the Applicant’s case in respect of SDA Robust.
If the Applicant was damaging walls, cabinetry and door furnishings in his current accommodation that required repair, I would expect that reports of that would have been made. The available records do not demonstrate that the Applicant regularly damages walls, door fittings or cabinetry or any other such fixture relevant to SDA Robust in his accommodation which require repair. I give greater weight to the records from 2017 because the Applicant has had the consistent support of expert occupational and speech therapists and behaviour support practitioners and will continue to do so under his NDIS Plans.
There is no evidence of the costs of repairs for the damage the Applicant has caused since 2017, however, the extent and nature of the damage does not suggest that the cost justifies the additional expenditure to provide SDA Robust.
I am not satisfied that the provision of resilient construction materials as required by SDA Robust is a support that 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 pursuant to s34(1)(c), or that the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice, pursuant to s34(1)(d) of the Act. I am not satisfied that SDA Robust is a reasonable and necessary support pursuant to s 34(1) of the Act.

I make it clear that I have not accepted the Respondent’s argument that the treatment it relied on was an alternative support. It is uncertain whether the treatment would have the beneficial result suggested.
Conclusion
For the above reasons, I am not satisfied that the support SDA Robust satisfies s 34(1)(c) or (d) of the Act. I am not satisfied that SDA Robust is a reasonable and necessary support under s 34 of the Act. As the Respondent has conceded that two areas should be approved, the reviewable decision needs to be changed to reflect that.
The Respondent’s proposed decision
After the hearing, the Respondent proposed wording for the decision. It included:
·Features: Without a breakout room and without sprinklers
I clarified with the Respondent that “without sprinklers” included a typographical error, and in fact the Respondent supported the provision of sprinklers as outlined at [7] of its Statement of Issues, Facts and Contentions which reflects the SDA Panel’s recommendation.[22]
[22] At T4, p 138.
Decision
The reviewable decision dated 8 October 2020 made under s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (the Act) is varied to include funding provided under the Applicant’s statement of participant supports for Specialist Disability Accommodation, in accordance with s 15 of the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth), as a reasonable and necessary support under s 34 of the Act. The features of the Specialist Disability Accommodation will include:
·New Build;
·Building type: House, 2 residents;
·Design category: Improved Liveability;
·Features: With sprinklers;
·Locations: NSW Newcastle and Lake Macquarie and NSW Central Coast.

I certify that the preceding 174 (one hundred and seventy-four) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

..............................[sgd]..........................................
Associate
Dated: 15 March 2022

Date(s) of hearing: 5 and 6 August 2021

Advocate for the Applicant: C Parkes-Hupton, Disability Advocacy NSW

Counsel for the Respondent: M Gollan

Solicitors for the Respondent: N Donaghy, Australian Government Solicitor

[2022] AATA 445

15 March 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Standing

Remedies

SDA design category
Item	SDA design category	Features
1	Basic	Housing without specialist design features but with a location or other features that cater for the needs of people with disability and assist with the delivery of support services.
2	Improved liveability	Housing that has been designed to improve ‘liveability’ by incorporating a reasonable level of physical access and enhanced provision for people with sensory, intellectual or cognitive impairment.
3	Fully accessible	Housing that has been designed to incorporate a high level of physical access provision for people with significant physical impairment.
4	Robust	Housing that has been designed to incorporate a high level of physical access provision and be very resilient, while reducing the likelihood of reactive maintenance and reducing the risk to residents and the community.
5	High physical support	Housing that has been designed to incorporate a high level of physical access provision for people with significant physical impairment and requiring very high levels of support.

Clause	Design requirement	Rationale	Applicable to
25.1	Resilient but inconspicuous materials shall be provided, that can withstand heavy use and minimises the risk of injury, including high impact wall lining.	For safe use of the dwelling for some users. Consider provision of high impact wall lining for the full height of the wall or a minimum of 2.4M height from FFL.	Robust
25.2	High impact/vandal proof fittings and fixtures shall be provided (for example, commercial vandal-proof door handles). Such fixtures and fittings shall be resilient yet inconspicuous so they uphold and do not undermine the character of the home.	For safety and serviceability for users.	Robust
25.3	Participant’s bedroom shall be sound insulated.	For privacy of users. One way of achieving this is to provide wall insulation.	Robust
25.4	Recessed lighting fixtures shall be provided.	To prevent damage and maintain safety for users.	Robust
25.5	Design drawings shall be provided to show layout with areas of egress and retreat for staff and other residents to avoid harm. This is only required at final/ as-built stage of SDA certification.	For safety of users. This document is to be provided to the site manager if any.	Robust

Date(s) of hearing:	5 and 6 August 2021
Advocate for the Applicant:	C Parkes-Hupton, Disability Advocacy NSW
Counsel for the Respondent:	M Gollan
Solicitors for the Respondent:	N Donaghy, Australian Government Solicitor