BHXJ and National Disability Insurance Agency - [2023] AATA 513

BHXJ and National Disability Insurance Agency [2023] AATA 513 (3 February 2023)
ReviewNumber: 2021/4053, 2022/9488, 2022/9491
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/4053, 2022/9488 and 2022/9491
Re:BHXJ
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:3 February 2023
Place:Melbourne

The Tribunal remits the matters back to the respondent for reconsideration in accordance with the Tribunal’s findings.
.......................[sgd]................................................
The Hon. Matthew Groom, Senior Member
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – review of supports in plan – whether plan should be self-managed, plan-managed or Agency managed – whether plan funding is being appropriately expended – whether family member should be paid from plan funding – whether exceptional circumstances apply – decision under review remitted.
Legislation
Administrative Appeals Tribunal Act 1975
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme (Plan Management) Rules 2013
Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) to ALD 634
Pettit and National Disability Insurance Agency [2022] AATA 272
Secondary Materials
National Disability Insurance Scheme, Operational Guidelines
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
3 February 2023
Introduction

This matter involves a review of a series of decisions of the respondent in respect of the applicant’s National Disability Insurance Scheme (NDIS) plans commencing 4 March 2022, 21 September 2022 and 14 October 2022.
Background
The applicant became a participant in the National Disability Insurance Scheme (NDIS) on 19 February 2018.
The applicant suffers from a number of significantly disabling conditions including seronegative rheumatoid arthritis, Sjogren syndrome, fibromyalgia and adrenal adenoma. As consequence of her conditions the applicant suffers from a range of symptoms including chronic pain, extreme fatigue, headaches, incontinence, disturbed breathing, disturbed sleep and other neurological issues and associated functional impairments including being largely wheelchair-bound, requiring oxygen to assist with breathing and requiring assistance with showering, going to the bathroom administering medication and eating.
The applicant’s husband was appointed as the applicant’s plan nominee on 24 February 2020. The applicant’s husband acted as her representative for the purpose of this hearing in this matter.
The applicant’s first plan commenced on 2 March 2020 with total funded supports in the amount of $44,138.40 for 12 months to 2 March 2021 (First Plan). The First Plan was self-managed.
The applicant’s second plan commenced on 23 September 2020 with total funded supports in the amount of $68,386.21 for 12 months to 23 September 2021 (Second Plan). The respondent made a decision that the Second Plan was to be plan-managed due to a concern with respect to the speed with which funds under the First Plan were expended and also due to concerns that some of the funds were being paid to the applicant’s husband himself for the provision of supports to the applicant. At the time, the applicant’s husband as plan nominee, sought to challenge the respondent’s decision for the Second Plan not to be self-managed.
The applicant’s third plan commenced on 13 April 2021 with total funded supports in the amount of $39,588.51 through to 21 October 2021 (Third Plan). The Third Plan continued to be plan-managed.
On 14 April 2021, the applicant’s husband, as plan nominee, requested an internal review in respect of the Third Plan. In doing so the applicant’s husband indicated that he did not seek to pursue his request for self-management of the plan but challenged the respondent’s decision to not include 24/7 1-1 support worker assistance and further he maintained that the Third Plan ought to include approval for him to be paid to provide that care.
On 20 May 2021 a delegate of the respondent made the decision to refuse the request for funding for 24/7 1-1 support worker assistance on the basis that it was not reasonable and necessary pursuant to section 34(1) of the National Insurance Disability Scheme Act 2013 (NDIS Act).
On 17 June 2021 the applicant applied to the Tribunal for a review of the 20 May 2021 decision seeking that the request for 24/7 1-1 support worker assistance funding be approved as “reasonable and necessary” for the purposes of the Act (matter number 2021/4053).
On 14 October 2021 the Third Plan was administratively extended to 3 March 2022 with total funded supports in the amount of $48,588.51.
Pursuant to a section 42D order of the Tribunal dated 24 February 2020 (the remittal) the review of the 20 May 2021 decision was remitted back to the respondent for reconsideration in order to ensure continuity of funding for the applicant of the reasonable and necessary supports not in contention pending the outcome of the review.
Following the remittal, the applicant’s fourth plan commenced on 4 March 2022 with total funded supports in the amount of $20,771.12 through to 3 June 2022 (Fourth Plan). The core support funding in the Fourth Plan was made Agency-managed due to ongoing concerns of the respondent regarding the nature of the expenditure of the funding. The Improved Daily Living component of the Capacity Building funding remained plan-managed with the remainder also Agency-managed.
Given that the Fourth Plan decision made on 4 March 2022 was made pursuant to the remittal, in accordance with section 42D(3)(a) of the Administrative Appeals Tribunal Act 1975 (AAT Act), the applicant’s ongoing objection to the 4 March 2022 decision became the subject of the 2021/4053 review.
At a directions hearing in respect of the 2021/4053 review, the applicant’s husband, on behalf of the applicant, indicated that he no longer sought to challenge the support funding amount in respect of the Third Plan and that the parties had reached an agreement in principle, in respect of the support funding for the Fourth Plan but that he continued to seek review of the respondent’s decision for the core support funding in the Fourth Plan to be Agency-managed and that he also continued to challenge the respondent’s decision to not allow him to be paid for the provision of personal care to the applicant from the applicant’s plan funds.
On 20 September 2022, pursuant to an agreement between the parties, the Tribunal made an order varying the reviewable decision of 4 March 2022 as follows:
1. the reasonable and necessary supports that will be funded under the National Disability Insurance Scheme will include:
(a) Core Supports:
(i) Assistance with daily activities to be increased to 5 hours per day, 7 days per week, 1:1 Level 3 Support worker assistance to be used flexibly to assist the Applicant with personal care, meal planning, shopping and meal preparation and social and community participation as required and mobility exercise, positioning and implementation of therapy programs;
(ii) Assistance with house and yard maintenance to be increased to 4 hours per month; and
(iii) Assistance with house cleaning and other household activities to remain at 2 hours per week;
2. except for the supports referred to in paragraph 1(a) above, all other reasonable and necessary supports in the Applicant’s existing statement of participants supports remain the same.
[1]
[1] The Tribunal acknowledges, as pointed out by the respondent in its closing submissions, that the reference to "Level 3" supports included in that order was a typographical error and that the order should be read as referencing "Level 2" supports.
On 21 September 2022 the respondent approved the applicant’s fifth plan with total funded supports of $200,693.28 for the period through to 20 September 2024 (Fifth Plan). The respondent decided that the Fifth Plan would be Agency-managed with the exception of some limited capacity building support which would remain plan-managed.
On 14 October 2022 the applicant’s sixth plan commenced with total funded supports in the amount of $206,572.28 through to 13 October 2024 (Sixth Plan). Given ongoing concerns regarding the payment of some support funding to the applicant’s husband contrary to the the respondent’s previous direction, the respondent decided that the Sixth Plan would be entirely Agency-managed with the exception of some limited capital supports. In approving the Sixth Plan the respondent also reaffirmed its previous position to refuse payment to the applicant’s husband for the provision of personal care to the applicant from the plan funds.
The applicant subsequently sought review of both the Fifth and Sixth Plans and more specifically in respect of the respondent’s decisions not to change the plans to plan-managed for all supports and also for the respondent’s refusal to approve for the applicant’s husband to be paid for the provision of personal care to the applicant from plan funds.
On 10 November 2022 the respondent affirmed the decision to refuse to change the Fifth and Sixth Plans to plan-managed for all supports and also to refuse to approve for the applicant’s husband to be paid for the provision of personal care to the applicant from plan funds.
On 18 November 2022 the applicant sought review in the Tribunal of both of the respondent’s 10 November 2022 decisions in respect of the Fifth and Sixth Plans (matter numbers 2022/9491 and 2022/9488 respectively).
Issues
The Tribunal accepts the respondent’s contention that in light of the section 42C decision which addressed the issue of the reasonable and necessary supports in respect of matter number 2021/4053, the residual issues to be determined in relation to that matter relate to the respondent’s refusal to approve the Fourth Plan being plan-managed as well as its refusal to approve payments being made to the applicant’s husband for the provision of personal care to the applicant from the funding under the plan. The issues set out in the applicant’s application for review with respect to the Fifth and Sixth plans (matter numbers 2022/9491 and 2022/9488) also involved the same two issues.
Accordingly, the issues to be determined by the Tribunal are whether:
(a)funding for the applicant’s supports under the Fourth, Fifth and Sixth Plan should be plan-managed; and
(b)the applicant’s husband should be permitted to be paid out of the applicant’s plan funding for the provision of personal care to the applicant.
Legislative Background
The legislative provisions relevant to the issues in dispute before the Tribunal are set out in the NDIS Act including, more specifically, the objects and principles set out in Part 2 of Chapter 1 together with sections 33, 42,43 and 44.
In addition, the National Disability Insurance Scheme (Plan Management) Rules 2013 (the Rules) have been made under section 209 of the NDIS Act. The Rules prescribe criteria and other matters the CEO (or the Tribunal sitting in their shoes) must have regard to in deciding whether there would be an unreasonable risk to the participant in self-management of their plan, including in circumstances where the applicant is represented by a nominee.
The Tribunal has also had regard to the NDIS Operational Guidelines and more specifically the Including Specific Types of Supports in Plans Operational Guideline - Sustaining informal supports (the Guidelines). The Tribunal accepts that the Guidelines represent government policy in relation to the administration of the NDIS Act and that in making decisions in the present case, regard should be had to the Guidelines unless there is a cogent reason not to do so.[2] The Tribunal is satisfied that there is no cogent reason not to have regard to the Guidelines and particular circumstances of this case.
[2] See Pettit and National Disability Insurance Agency [2022] AATA 272 and Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) to ALD 634.
Consideration
Should the Fourth, Fifth and Sixth Plans be plan-managed?
The Tribunal accepts that the applicant’s husband has, as plan nominee, made a request for the whole of the applicant’s plans to be plan-managed for the purpose of section 43 of the NDIS Act. The applicant’s husband had previously requested that the plans be self-managed but he has indicated to the Tribunal that he does not seek to pursue that previous request.
The respondent contends that the Tribunal should be satisfied that section 44(2A) of the NDIS Act does not apply in respect of the applicant’s husband for the purpose of sections 43(5) and (6) on the basis that any involvement of the applicant’s husband in the management of the applicant’s plan funding would represent an unreasonable risk to the applicant.
The respondent relies on evidence before the Tribunal that it claims demonstrates that the applicant’s husband lacks a capacity to manage finances and that there exists a conflict of interest between the applicant’s needs and the applicant’s husband’s desire to be paid from the scheme for his provision of formal supports. The respondent contends that, as a consequence, the applicant’s involvement in the management of the applicant’s plan funding would represent an unacceptable risk to the applicant for the purpose of Part 3 of the Guidelines. The respondent contends that in such circumstances, and in accordance with section 43(6)(e) of the NDIS Act, the applicant’s plan must be wholly Agency-managed in the applicant’s interests.
The applicant’s husband disputes the respondent’s claims with respect to his capacity to manage finances and the alleged conflict of interest and the claim that he represents an unacceptable risk. However, the applicant’s husband maintains that he no longer seeks to have the plan self-managed but rather plan-managed, and that any residual concern regarding risk ought to be able to effectively managed in a plan-managed arrangement through the adoption of appropriate mitigation strategies. Further, that to deny the applicant’s request would be to deny the applicant choice, contrary to the objects and principles of the Act.
In the Tribunal’s view, the evidence supports a conclusion that the applicant’s husband managed funding under the applicant’s First Plan in a manner that raises serious questions regarding his capacity to manage finances in a responsible manner.
During the period the applicant’s husband was responsible for the self-management of the applicant’s First Plan, payments made from funds allocated to the plan were made in such a way as to result in the total funds allocated being fully expended well before the scheduled conclusion of the plan. In the Tribunal’s view this demonstrates a failure on the part of the applicant’s husband to responsibly and prudently manage the plan funding, which in turn reflects a lack of willingness or capacity on his part to responsibly and prudently manage finances.
The applicant’s First Plan commenced on 2 March 2020 with a total funded supports in the amount of $44,138.40 to be used over a 12-month period. The First Plan included core supports in the amount of $33,271.78. Those funds were fully exhausted within six months of the plan’s commencement.
In the Tribunal’s view, in managing the applicant’s funds the applicant’s husband took the view that the amount of funding allocated to his wife had been insufficient, and certainly less than his wife had been receiving under the former state-based scheme. The Tribunal is satisfied that in making decisions to utilise the funds under the plan in the manner in which he did the applicant’s husband was aware that the funding would be exhausted well before the conclusion of the plan. The Tribunal is satisfied that despite being aware that the funds would run out the applicant’s husband failed to put in place any form of responsible budgeting of the funds to mitigate the risk of the funds being expended well before the plan period had concluded. The Tribunal is satisfied that the applicant’s husband failed to responsibly manage the funds in the belief that he could simply seek further funding once the funds under the plan had been exhausted.
The Tribunal is also satisfied that the applicant’s husband sought access to funds from the core support funding in the First Plan as reimbursement for what he claimed to be the provision of 24/7 personal care for the applicant. The Tribunal is satisfied that the applicant’s husband was aware that the First Plan did not specifically provide for 24/7 personal care but that he believed claiming all available funds was justified on the basis that he was providing such care for the applicant. The Tribunal is satisfied that once such funds were accessed by the applicant’s husband he viewed those funds as being available for his own personal use and to be expended as he saw fit.
While the Tribunal accepts that the applicant’s First Plan provided for core supports funding to be used flexibly, it did not provide for the entirety of the core support funding to simply be paid to the applicant’s husband for 24/7 personal care and then be utilised for his own purposes. It is clear to the Tribunal that this is the approach that the applicant’s husband adopted. The Tribunal is satisfied that the applicant’s husband did so despite having been told on more than one occasion that there was no provision in the plan for 24/7 care and that the payment of a family member for the provision of care was not permitted under the Guidelines other than in exceptional circumstances. While it is clear that the applicant’s husband did, at the time, and continues to believe that the exceptional circumstances exception should apply to the applicant’s circumstances due to the applicant’s privacy and dignity concerns, the applicant’s husband was nonetheless on notice that the respondent had not in any way acknowledged the existence of exceptional circumstances and, rather, had maintained a view that such payments should not be made to him. Notwithstanding this, the applicant’s husband continued to assert that he was entitled to be paid from plan funds for the provision of his care and took proactive steps to seek to achieve this outcome. In the Tribunal’s view, this course of action was not consistent with a responsible and prudent management of the applicant’s funds. The Tribunal is satisfied that in this respect the applicant’s husband has demonstrated through his conduct to lack capacity to manage finances.
In reaching this conclusion, the Tribunal does not doubt that the applicant suffers from very significant symptoms and associated functional impairment. Nor does the Tribunal doubt that in acting as plan nominee and engaging the self-management of the First Plan, and in respect of all of the applicant’s plans, the applicant’s husband has maintained a genuine commitment to the care of his wife and also that, at times, and understandably, he has been confused or overwhelmed by the complexity of the NDIS system and also of the impact of the transition to the NDIS from the applicant’s previous state-based scheme.
Notwithstanding this acknowledgement, it remains clear to the Tribunal, for the reasons set out, that the applicant’s husband engaged in the self-management of the applicant’s funds without due regard to the need to responsibly and prudently manage those funds.
These conclusions are supported by the evidence before the Tribunal including the Agency interaction notes included in those materials. The Tribunal satisfied that there is no reasonable basis for challenging the accuracy or reliability of the interaction notes and the Tribunal accepts that the notes are reliable evidence of the interactions as recorded within them.
In an Agency interaction note dated 10 July 2020, the applicant’s husband is recoded as having contacted an Agency representative on that day and requesting that all funding under the applicant’s plan be immediately paid to him. The interaction notes record details of a text message from the applicant’s husband which reads as follows:
Can we use it for personal care ASAP. This is much lower than her previous plan. I am her carer and would be lodging for reimbursement of the 24/7 care she gets. This is allowed as family members can be paid to care for those on NDISD. As per guidelines as she has personal privacy reasons for me caring for her personal needs. I can claim all the funding available for her care.

The interaction notes also record an Agency representative advising the applicant’s husband that family members are not allowed to be paid using NDIS funds and that "you can lodge invoices from gardener, cleaner, therapists and other carers as long as they provide an invoice with an ABN". The notes record the applicant’s husband as indicating that he was permitted to receive funding under the previous state-based scheme and the agent advising the applicant’s husband that the NDIS is different. the applicant’s husband asked about his ability to claim for equipment. The Agency representative advised that equipment can be claimed. The applicant’s husband is recorded as responding by saying that we are "self-managed we can disburse the funds to providers. We will claim the full amount of the equipment”. The applicant’s husband is recorded as then advising that he will get invoices ready. He is recorded as asking “How long till the payment is made?”.
In an interaction note dated 28 April 2020 the applicant’s husband is recorded as stating:
Need your help putting in the info for the carer hours that I do to get paid for them. We are allowed to have me as Paid carer under the regulations as [the applicant] can have a family member as paid carer.
An interaction note dated 4 September 2020 records the applicant’s husband as requesting the local area coordinator to arrange an urgent review of the applicant’s First Plan because of the need for additional funding. The note states:
We would need at least 100K" "we need to make an urgent allocation for additional funding" "I meant application as we have been disadvantaged by 49 K plus from our DHS plan please make enquiries about an urgent review.
The Tribunal is also satisfied that the applicant’s husband had a clear conflict of interest in undertaking the role of self-managing the applicant’s plan funds in circumstances where he was at the same time seeking payment to himself personally from those funds as reimbursement for his provision of personal care to the applicant. The Tribunal is satisfied that this conflict of interest could lead a reasonable person to consider that amounts of the applicant’s funding within the applicant’s husband’s control might be spent other than in accordance with the applicant’s plan. There is no doubt in the Tribunal’s mind that some of those funds were spent other than in accordance with the applicant’s plan.
For these reasons, the Tribunal is satisfied that the decision made by the respondent to deny the applicant’s husband’s initial request for self-management of the plan was appropriate in all the circumstances, including on the basis that the applicant’s husband lacked capacity for managing finances prudently and responsibly and due to the conflict of interest that existed as described above.
Consistent with these conclusions, the Tribunal is satisfied that if the applicant’s plans were to be reverted to self-managed there would exist a very real risk of the funds allocated to the applicant being utilised in a manner that was not responsible and prudent and that, as a consequence, it would be reasonably likely that the applicant’s plan funds would be expended prematurely and potentially for purposes not consistent with the provisions of the plan. The Tribunal is satisfied that such an outcome would be to the material detriment of the applicant. In the Tribunal’s view, this would represent an unreasonable risk to the participant for the purpose of the NDIS Act and the Guidelines. The Tribunal is satisfied that this risk could not reasonably be managed through risk mitigation strategies including closer monitoring by the respondent, the applicant’s husband providing services to the applicant through a third-party corporate structure, or by further reducing the time period for the duration of the plans.
However, the difficulty the Tribunal has with the respondent’s contentions in this respect is that the applicant’s husband no longer seeks self-management of the plans. Rather, he is seeking for the plans to be plan-managed. That raises a different question. Not whether self-management of funding will pose an unreasonable risk to the applicant but rather whether making the plans plan-managed would do so.
The Tribunal is satisfied that there are strong reasons for concluding that it would. This is because the evidence has clearly demonstrated that the applicant’s husband continues to maintain that he is entitled to payment as a family member for the provision of personal care to the applicant and that he ought to be able to access her plan funds accordingly and utilise those funds for his own personal use and as he sees fit. Further, it is clear from the evidence that the applicant’s husband has also demonstrated a willingness to take deliberate steps to pressure or otherwise persuade the plan manager to release funds to him for his own personal use, including by acting in a manner that involved misrepresentation or that was otherwise misleading or not transparent. There were multiple examples of this including the applicant’s husband misrepresenting his entitlement to funds, suggesting that recommendations had been made for the expenditure of funds when no such recommendations had been made and through the use of invoices under a company letterhead with no reference to his own personal details or through inaccurate descriptions of services provided in such invoices. The applicant’s husband denied this conduct in his evidence to the Tribunal but the Tribunal did not find his denials to be credible. The Tribunal found the applicant’s husband’s answers to questions put to him on these issues to be evasive, deliberately vague implausible. The Tribunal is satisfied that the applicant’s husband’s conduct in this respect has contributed significantly to the exhaustion of the applicant’s funds well before the expiration of the plan period and also for purposes other than the stated purpose in the applicant’s plans.
The Tribunal is satisfied that if the applicant’s plans were converted to plan-managed it would present a real risk of a future plan manager being pressured or otherwise persuaded to release funds from the applicant’s plans to the applicant’s husband for his own personal use including by acting in a manner that involved misrepresentation or that was otherwise misleading or not transparent. In the Tribunal’s view, these circumstances present a very real risk of the funds allocated to the applicant in her plan being utilised inappropriately or otherwise not in accordance with the provisions of her plan. The Tribunal is satisfied that such an outcome would be to the material detriment of the applicant. In the Tribunal’s view, this would represent an unreasonable risk to the participant.
These conclusions are supported by the Tribunal materials relating to the applicant’s husband’s conduct in respect of the Second and Third plans.
The applicant’s Second Plan which commenced on 23 September 2020 had a total funding of $68,326.21 to be used over the course of 12 months. The Second Plan included $53,388.96 for core supports which was to be plan-managed with Instacare appointed as the applicant’s plan manager. The funds included in the Second Plan were fully exhausted within five months of the plan’s commencement. As early as 17 February 2021 Instacare had informed the respondent that all plan funds had been expended and that the applicant’s husband was seeking an early plan review. The Tribunal is satisfied that the premature utilisation of the funds was as a consequence of the steps the applicant’s husband took to pressure or persuade the plan manager to release funds to him.
There was evidence before Tribunal that between November 2020 and 11 May 2022 the applicant’s husband engaged in the practice of issuing invoices for payment from plan funds under a corporate letterhead following the conversion of the applicant’s plan to plan-managed. The Tribunal is satisfied on the evidence that the applicant’s husband engaged in this practice was with the intent of increasing the likelihood of funds being released to him in circumstances where the release of funds to him directly was otherwise unlikely due to the respondent’s policy of not allowing payments to family members in the absence of exceptional circumstances.
The Tribunal accepts the respondent’s contention that the invoices issued under a corporate letterhead amounted to in excess of $200,000. The Tribunal is satisfied that the amounts paid pursuant to those invoices were intended by the applicant’s husband to be paid to him as reimbursement for his claimed personal care of the applicant. In his evidence to the Tribunal the applicant’s husband confirmed as much. When asked about one such invoice the applicant’s husband confirmed that the amount was to be paid to him as reimbursement for personal care provided to the applicant. When asked whether personal care was provided by a company rather than himself personally the applicant’s husband answered “no”.
In his evidence at the hearing the applicant’s husband did not dispute that he received the funds paid pursuant to the invoices he had issued although at various points in his evidence he was evasive in his answer to the question responding with “so it would seem”, “if they processed them then yes”, and “the logical assumption is that would have occurred”. The Tribunal is satisfied that the applicant’s husband did receive the funds.
The applicant’s husband indicated in his evidence at the hearing that he could not recall being told that no approval had been provided by the respondent for payment to him as a family member and that he didn’t believe that he had been told. The Tribunal did not find the applicant’s husband’s responses on this point credible or reliable. The Tribunal is satisfied that the applicant’s husband was well aware that he did not have the approval of the respondent during the period he was issuing the invoices. In the Tribunal’s view this awareness is evidenced by the use of invoices issued under a company letterhead that did not bear his name or details despite conceding that the care for which he was claiming had been provided by himself personally and not in any substantive sense through a third-party company. The Tribunal is satisfied that the invoicing for funds in this way was intended to mislead the plan manager and it demonstrates an awareness on the part of the applicant’s husband that he was not approved to receive such payments as well as an intention on his part to circumvent the respondent’s position.
The applicant’s husband claims that the proposal to seek payment of funds through the provision of invoices under company letter head was done with the knowledge and advice of the support coordinator and further that the support coordinator had advised that he met the exceptional circumstances exception. The Tribunal does not accept the applicant’s husband’s evidence in this respect. Other than the applicant’s husband’s assertion, there is no independent evidence before the Tribunal to support the contention and the Tribunal found the applicant’s husband’s evidence in this respect to be self-serving and lacking credibility. The Tribunal does, however, accept that the local coordinator had written to the applicant’s husband and set out the basis upon which a family member might become entitled to be paid from plan funds due to exceptional circumstances. However, for the reasons already stated, the Tribunal is satisfied that at the time he was issuing invoices under company letterhead he was doing so understanding that the respondent had not approved for him to be paid in such a manner and with the intent of circumventing the constrain due to the absence of such approval. This is further reinforced by the evidence before the Tribunal that the applicant’s husband had continued to issue invoices even after he commenced his review process in the Tribunal where the applicant’s husband’s knowledge of the absence of Agency approval was an issue in dispute.
An interaction note dated 26 February 2021 records the content of the text message received by the local area coordinator from the applicant’s husband which reads:
I need a personal favour. Can you please call Instacare our plan manager right away and approved by the assistive tech for [the applicant] and the recumbent bike we have bought. I can’t get invoices replaced in time and it needs to be approved by you today or we miss out. The tech is a laptop and the NDIS has relaxed the rules because of COVID and the deadline is today. I wound [sic] count this as a personal favour..
The note records the local area coordinator requested receipts from the applicant’s husband and the applicant’s husband subsequently sent two quotes - one for a laptop costing $2251.65 and the other for a recumbent bike costing $1299. The documents were followed by text message from the applicant’s husband which reads “I know the asst I’ve tech budget is not enough to cover the laptop but a friend has agreed to loan is the difference. The bike is under the limit for better life choices. Please help us. We need them approved today. Instacare have told me that if you call you can approve and I will pay. If you approve today I can get them delivered immediately”.
The record notes that local area coordinator subsequently checked the Guidelines and the applicant’s record to identify any letters or documents which may have been uploaded but there were none referring to the laptop or bike and no communication from the plan manager. The applicant’s husband subsequently sent a text seeking an update on the status of his request and was asked to provide the detail of the therapist who recommended the items and their report. The record notes the applicant’s husband responding:
Fiona has sent her endorsement of the laptop and it was her recommendation that Instacare have and our doctor has endorsed it as well in writing to Instacare. The bike was an ideaI discussed with Louise and she said go ahead if it would help. We have endorsements for both items. Fiona can endorse the bike.
The local area coordinator then responded to the applicant’s husband as follows:
..you will need to provide evidence that there are no other devices in the house already that [the applicant] can use and that the device is necessary (this must be provided by the OT or another therapist or doctor already engaged with Tricia) participants should not spend more than $750 on electronic devices needed to maintain existing services. In the case of computer tablets or iPads or telehealth and care or participating in online video classes, advice from AT specialists is that most NDIS participants will not need more than a standard tablet, which costs no more than $600.
Interaction notes go on to read:
LAC rang OT and then had joint conversation by phone with OT-Louise Moreton and Support Coordinator-Fiona Collison, who had also been receiving texts. OT stated that she had not heard anything about a bike and was not able to recommend any equipment until she was able to complete the functional assessment for [the applicant].
The Tribunal is satisfied that the evidence set out above supports a conclusion that the applicant’s husband had knowingly misrepresented the existence of recommendations for the equipment for the purpose of accessing funds from the applicant’s plan.
The applicant’s Third Plan which commenced on 13 April 2021 provided for supports in the amount of $39,588.51 for the period through to 12 October 2021. The Third Plan included core supports in the amount of $27,524.36 and was to be plan-managed. The Tribunal records indicate that the funding for core supports under the Third Plan had almost been fully exhausted by 10 May 2021. The interaction notes include a note recording contact with the local area coordinator which states that the section 100 review “cannot be put on hold as core funding has been completely utilised ($300 remaining)”.
The applicant’s Third Plan was then administratively extended in October 2021 with total support funds of $48,588.51 for the period from October 2021 through to 3 March 2022. The Tribunal materials indicate that the applicant’s funding under the extended plan had been fully exhausted by 9 February 2022.
Again, in the Tribunal’s view, the evidence set out above supports a conclusion that the applicant’s husband had engaged in deliberate steps to pressure or otherwise persuade the plan manager and local area provider to facilitate the release of funds to him from the applicant’s plan for his own personal use. In addition, the evidence supports a conclusion that in doing so the applicant’s husband engaged in actions that involved misrepresentation or that were otherwise misleading or lacking transparency. The Tribunal is satisfied that this course of action taken by the applicant’s husband contributed significantly to the exhaustion of the funds well before the expiry of the relevant plan period.
For these reasons the Tribunal is satisfied that a conversion of the applicant’s plans to plan-managed would represent a real risk of the funds being used in a manner that was not responsible or prudent and to the material detriment of the applicant. In the Tribunal’s view this is an unreasonable risk.
Notwithstanding these conclusions, the Tribunal is not satisfied on the material before it that there is a proper basis at present for denying the applicant’s request to have her plan plan-managed. The reason for this conclusion is that there is no evidence before the Tribunal as to the proposed nominated provider or their capacity to effectively mitigate any of the risks the Tribunal has identified. In the Tribunal’s view, this is a relevant consideration in making any assessment as to whether section 44(2) of the NDIS Act applies for the purpose of section 43(4)(b) which is the relevant section addressing the circumstance in which a request is made for a plan to be plan-managed.
In all of the circumstances. the Tribunal considers the appropriate course to take is for the matters to be remitted back to the respondent for reconsideration after confirming the proposed plan-manager and obtaining sufficient information to enable an assessment of the plan-manager’s capacity to effectively manage the identified risks.
Should the applicant’s husband be permitted to be paid funds for the provision of personal care from the applicant’s plan funds?
In considering this question the Tribunal has had regard to the Guidelines including the “Specific Types of Supports in Plans Operational Guideline-Sustaining informal supports”. Clause 11 of the Guidelines provide as follows:
11. Sustaining informal supports
The informal support provided by parents, siblings and other family members is vitally important to people with disabilities. In addition to the support provided, the close relationships that participants have with the people who provide this informal support can also be highly important.
Therefore, the ongoing capacity of family members and carers to provide this informal support can often be critical to the well-being of participants.
Support loads and other factors such as illness or ageing can place a carers well-being at risk and compromise their capacity to continue in their caring role. Accordingly, the NDIA recognises that sustaining these informal supports can often be an integral component of meeting participants needs. The NDIA aims to increase the social and economic participation of people with disabilities within the context of their families and existing support networks. The NDIA or use the planning process to build an understanding of a participant’s overall support needs, including identifying the range of informal supports which are available and how they can be sustained.
11.1 Does the NDIA fund family members to provide supports?
Funding a family member to provide supports to a participant can be detrimental to family relationships.
For example, the consequence of funding a family member to provide supports may include unintentionally creating an environment where participants wishes in relation to their care arrangements for the delivery of their supports is diminished, or there is no or limited respite for the family work at taking on the role of support worker.
Generally, the NDIA will only fund family members to provide supports in exceptional circumstances. For example, when:
there is a risk of harm or neglect to the participant;
there are religious or cultural reasons for funding family member to provide supports;
or the participant has strong personal views, for example in relation to their privacy or dignity.
The NDIA will consider the circumstances of each case, any wishes expressed by the participant and also take into account what is reasonable to expect others to provide.
The NDIA will not fund family member to provide personal care or community access supports unless all other options to identify a suitable provider of supports have been exhausted.
Note, if the funding for supports under a participant’s plan is managed by the NDIA, family members will only be able to be funded to provide supports if they are a registered provider of supports (see Registered Providers).

The respondent contends that having regard to the Guidelines and on the basis that the applicant’s plans are currently Agency-managed there is a prohibition in section 33(6) of the NDIS Act against the applicant being paid funds for the provision of personal care for the applicant from the applicant’s plan funds on the basis that he is not a registered provider.
Further, the respondent contends that the applicant’s plans do not provide for the applicant’s husband to formally provide personal care to the applicant and that the informal care he provides is an informal support that would be reasonably expected for the applicant’s husband to provide as her husband and full-time carer.
In addition, the respondent contends that, in any case, the applicant’s circumstances do not constitute exceptional circumstances for the purpose of the Guidelines and that therefore, the applicant’s husband should not be paid for the provision of such services from the applicant’s plan funds.
The applicant’s husband contends that the applicant’s circumstances do amount to exceptional circumstances for the purpose of the Guidelines and that the care he provides to the applicant extends well beyond what should reasonably be expected by way of informal supports. The applicant’s husband therefore contends that he should be entitled to receive payment from the applicant’s plan funds for the personal care that he provides.
In an email from the applicant’s husband to the respondent dated 8 November 2022, the applicant’s husband indicates that the basis for his claim of exceptional circumstances for him to provide care is that:
I’m the only one my wife will trust to provide personal care such as showering and toileting as she has exceptional privacy and dignity concerns as she was abused sexually as a younger person and it is too traumatic for her to be touched in the most sensitive places by anyone but me.
The Tribunal understands this is the first occasion the applicant’s husband has raised his wife’s experience of being sexually abused as a justification for exceptional circumstances to apply. While there is insufficient evidence before the Tribunal for it to be satisfied as to the circumstances of any sexual abuse the applicant may have suffered in her lifetime, the Tribunal does accept the applicant’s husband’s representation that his wife is particularly sensitive from a privacy perspective to third parties being involved in her intimate care.
There are a number of general points to be made with respect to the Guidelines in the context of the present case. First, neither the NDIS Act nor the Guidelines provide a general prohibition against a family member being paid to provide supports to a participant. The Guidelines are not law but rather represent government policy. While careful regard should be had to the Guidelines in making a decision, such as the one before the Tribunal, the Guidelines should not be confused for a legislative provision prohibiting certain conduct.
Secondly, the Guidelines do not prescribe a process for the assessment of the “exceptional circumstances” criteria or for some other form of “approval” in order for a family member to be permitted to receive funding under a plan. In this context, it is somewhat understandable that the process to be followed in order to be “permitted” to receive funding from the applicant’s plan was not clear to the applicant’s husband. Any criticism of his approach to this issue must be viewed in that context. This is not to suggest that the applicant’s husband was unaware of the absence of the respondent’s approval for the payment to him from plan funds at the time he was issuing the invoices. For the reasons already set out the Tribunal is satisfied that he was aware.
As noted in the Guidelines extract set out above, there is an exception to this general position. In circumstances where funding for supports under a participant’s plan is managed by the Agency, family members will only be able to be funded to provide supports if they are a registered provider of supports. That is the effect of section 33(6) of the NDIS Act. As things currently stand, the applicant’s plans are Agency-managed in respect of the applicant’s core supports and the applicant’s husband is not a registered provider. Therefore, to the extent the applicant’s plan is Agency-managed, the applicant’s husband is not presently entitled to be paid for the personal care supports provided to his wife. Consistent with this conclusion the decision by the respondent under the Fourth, Fifth and Sixth Plans to not approve payments to the applicant’s husband from the plan funds was the correct and preferable decision.
Decision
The Tribunal remits the matters back to the respondent for reconsideration in accordance with the Tribunal’s findings.

I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member

.........................[sgd]...............................................
Associate
Dated: 3 February 2023

Date(s) of hearing: 21 October 2022, 22-23 November 2022

Date final submissions received: 22 December 2022

Advocate for the Applicant: The Applicant's husband

Counsel for the Respondent: Ms Kay Chan

Date(s) of hearing:	21 October 2022, 22-23 November 2022
Date final submissions received:	22 December 2022
Advocate for the Applicant:	The Applicant's husband
Counsel for the Respondent:	Ms Kay Chan