BIJD and National Disability Insurance Agency
[2018] AATA 2971
•10 August 2018
BIJD and National Disability Insurance Agency [2018] AATA 2971 (10 August 2018)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2016/6329
Re:BIJD
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President Gary Humphries
Date:10 August 2018
Place:Canberra
The reviewable decision is affirmed.
......................................................................
Deputy President Gary Humphries
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – funding for supports included in the statement of participant supports – whether two days of in-home care for a child is a reasonable and necessary support – whether support meets each of the requirements set out in s 34(1) of the National Disability Insurance Scheme Act 2013 – child suffering from severe, life-threatening, congenital heart disease – reviewable decision affirmed.
Legislation
National Disability Insurance Scheme Act 2013 ss 3, 4, 31, 32, 33, 34, 100, 103
Cases
McGarrigle v NDIA [2017] FCA 308
Fear and NDIA [2015] AATA 706
JQJT and NDIA [2015’ AATA 478
Secondary Materials
Minister for Families, Community Services and Indigenous Affairs and Minister for Disability Reform, National Disability Insurance Scheme (Supports for Participants) Rules 2013, 1 July 2013
National Disability Insurance Agency, Operational Guideline, National Disability Insurance Scheme < FOR DECISION
Deputy President Gary Humphries
10 August 2018
INTRODUCTION
James is a three-year-old boy in Canberra with severe medical problems. Six days after he was born in June 2015 he suffered a stroke which resulted in him losing his left kidney and damaging his spleen, significantly impairing his ability to fight infections. His parents, including his mother BIJD, the applicant in these proceedings, were told that he would not live. He subsequently suffered two cardiac arrests in March 2016 as a result of stress on his heart. He remained in palliative care until November 2016.
The Tribunal was told James suffers from severe, life-threatening, congenital heart disease.
On 30 May 2016, James was accepted as a participant in the National Disability Insurance Scheme (the NDIS or the Scheme), and a plan providing him with supports was approved by the National Disability Insurance Agency (the NDIA or the Agency) on 22 June 2016. On 8 July 2016, BIJD requested a review of the plan on the basis that it did not include two days of in-home support which she had requested. The decision was internally reviewed. The letter conveying that decision is undated, but was apparently made on or about 8 September 2016. In that decision it determined a plan for James which did not include two days of in-home care. BIJD has sought merits review by the Tribunal of this reviewable decision. The balance of the approved supports in the plan is not in dispute.
APPLICABLE LEGISLATION, RULES AND GUIDELINES
Section 32 of the National Disability Insurance Scheme Act 2013 (the Act) requires that the CEO of the NDIA must facilitate the preparation of a plan when a person becomes a participant in the Scheme. The plan is facilitated in accordance with the Scheme’s rules (s 32(2)).
A plan must include a statement of participant supports as approved by the CEO. The statement must specify, inter alia (s 33(2)):
(a)in relation to the general supports that will be provided, the reasonable and necessary supports that will be funded,
(b)the date by which the plan is to be reviewed, and
(c)the management of the funding of supports.
A person affected by a decision under s 33(2) to approve a statement of participant supports by the CEO may apply for internal review of that decision (s 100). A decision made in relation to an internal review may be reviewed by the Tribunal (s 103).
Section 34 sets out the matters of which the CEO must be satisfied in relation to the funding or provision of each support in a statement of participant supports. The list of matters is exhaustive, that is, the CEO must be satisfied that each exists in relation to a particular support for which funding is sought:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i)as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Guidance on the meaning of the provisions of s 34 is offered in a number of places. In addition, s 3 sets out the objects of the legislation, and requires that, in giving effect to the objects, regard is to be had to the need to ensure the financial sustainability of the Scheme and the need for interaction between the provision of mainstream services and the provision of supports under the… Scheme.
Section 4 sets out general principles that guide actions set out under the Act generally, and subsection (11) of s 4 provides:
(11) Reasonable and necessary supports for people with disability should:
(a) support people with disability to pursue their goals and maximise their independence; and
(b) support people with disability to live independently and to be included in the community as fully participating citizens; and
(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
Section 31 sets out principles relating to a participant’s plan. The principles include:
(c) where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(d) where possible, strengthen and build capacity of families and carers to support participants who are children; and
(e) consider the availability to the participant of informal support and other support services generally available to any person in the community; and
…
(h) advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations…
A number of rules and guidelines promulgated for the purpose of interpreting and implementing the Act must also be considered by the Tribunal. Section 34(2) provides that the NDIS rules may prescribe methods or criteria to be applied, or matters to which the CEO – and therefore the Tribunal, standing in the CEO’s shoes – is to have regard, in deciding whether or not he or she is satisfied of the matters mentioned in subsection (1). Similar provisions, requiring advertence to the rules for purposes of interpretation, appear elsewhere in the Act.
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the supports rules) are relevant. Rule 1.4 highlights particular principles drawn from the Act which are pertinent to determining what supports are appropriate for the Scheme to fund. The rule provides, inter alia:
(e) reasonable and necessary supports for people with disability should:
(i)support people with disability to pursue their goals and maximise their independence;
(ii)support people with disability to live independently and to be included in the community as fully participating citizens; and
(iii)develop and support the capacity of people with disability to undertake activities that enable them to participate in the mainstream community and in employment…
Rule 5.1 sets out what will not be funded by the Scheme:
A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
A further relevant interpretive document to which the Tribunal may have regard is the Scheme’s Operational Guideline – Planning (the Guideline). At paragraph 10.4 it provides, for the purpose of interpreting s 34(1)(b):
10.4 Will the support assist the participant to undertake activities so as to facilitate their social and economic participation?
Before any support is added to a participant's plan the NDIA must also be satisfied that the support will assist the participant to undertake activities so as to facilitate the participant's social and economic participation (section 34(1)(b)).
This requirement is consistent with the objects of the NDIS Act, and the functions of the NDIA that relate to supporting the independence, and social and economic participation of people with disability (sections 3(c) and 118(a)(i)).
Whether or not the funding, or provision of a support itself, will facilitate a participant's social and economic participation is not the test. Rather, the NDIA must be satisfied that the funding, or provision of a support, will assist the participant to undertake activities which will facilitate their social and economic participation.
For example, the funding of a guide dog for a visually impaired participant is likely to assist the participant to undertake activities associated with mobility (i.e. safely leaving the home and travelling to and from the workplace) which would, in turn, facilitate the participant's participation in the workforce.
Paragraph 10.6 offers guidance in determining the extent to which a support will be effective and beneficial (s 34(1)(d)) to a participant:
10.6 Is the support effective and beneficial having regard to current good practice?
Before any support is added to a participant's plan the NDIA must also be satisfied that the support will be, or is likely to be effective and beneficial to the participant having regard to current good practice (section 34(1)(d)).
The NDIS Act does not define ‘effective' or ‘beneficial' but they are ordinary words that should be given their ordinary meaning (i.e. effective meaning having a definite or desired effect; efficient and beneficial meaning advantageous; having benefits; improving the health) (see McCutcheon and NDIA [2015] AATA 624 at [34]).
The term ‘current good practice' means a practice which, even if not widely used, is recognised by sufficient numbers of practitioners as being based on sound evidence (see TKCW and NDIA [2014] AATA 501 at [70]).
When deciding whether a support will be, or is likely to be, effective and beneficial for the participant having regard to current good practice, the NDIA must consider the available evidence of the effectiveness of the support for others in like circumstances.
THE EVIDENCE
Pursuant to s 33(2) of the Act, James’s statement of participant supports made on 22 June 2016 included reasonable and necessary supports as follows:
(a)assistance with daily life at home, in the community, education and work in the form of hen bolus, consumables relating to nasal-gastric feeding,
(b)improved daily living skills, being a trans-disciplinary package level 2 early childhood intervention package, and
(c)assistive technology, comprising an opening figure pending assessments and reports from occupational therapists regarding specific equipment.
It did not include two days of in-home care as a reasonable and necessary support.
A witness statement of BIJD, together with three submissions on behalf of James, were tendered. BIJD also gave live evidence. She said that James had been born with hypoplastic left heart syndrome (half a heart,[1] as she put it), a form of congenital heart disease, which led to the stroke after his birth. This, in turn, caused acquired brain injury. BIJD described this as mild-to-moderate brain injury. She said that these conditions and the extended period spent in hospital led to James suffering from developmental delay. BIJD also told how James was not expected to live, and how she spent up to 22 hours each day at his bedside in hospital during the early weeks of his life.
[1] In this decision, italicised text is generally used to indicate direct quotations.
BIJD is a paediatric occupational therapist. She gave evidence that she had assessed James as suffering from, approximately:
·a 20-month gross motor skills of developmental delay;
·a 24-month speech developmental delay; and
·a 12-month fine motor skills developmental delay.
It was put to the Tribunal that this developmental delay is the disability which qualifies James to be a participant in the NDIS.
She told the Tribunal that James’s hypoplastic left heart syndrome put him at greater risk from common childhood illnesses such as gastroenteritis and viral infections. She had received advice that should James attend childcare the risk posed of contracting such illnesses from other children was unacceptably high. In his case, the contracting of infections is likely to require hospitalisation. His interaction with other children his own age is very limited for that reason. Apart from his seven-year-old sister, the only other contact with children he receives is through his two cousins who live in Canberra.
Under cross-examination it was put to BIJD that James’s risk of infection at childcare was unrelated to his developmental delay. She disagreed, saying that if he attended childcare and was placed with one-year-olds, whose stage of development was equivalent to his own, the risk of infection was greater because all the children in that group would be putting toys in their mouths. Thus, she said, his developmental delay puts him at a high risk of infection if he attends child-care.
James requires 24 hour support and care. He receives 9 doses of medication daily and requires regular checking of his cardiac perfusion and respiratory function, including through the night. He is able to walk and to roll over, but cannot lift moderately heavy objects, such as a drink bottle. He cannot feed himself.
BIJD has sought in-home support for James for two days per week. She told the Tribunal that a disability organisation, Community Options, had provided funding for this support to her but the funding had expired a few days before the hearing. She has used this funding to be able to provide an alternative carer for James and to return to work for two days a week. The in-home carer was a support worker, not a therapist, but assisted BIJD to provide follow-up to the skills James was learning from other therapists. She said that the support worker helped James achieve goals which he might in other circumstances have achieved through interactions in childcare. Goals already achieved include transitioning from a cot to a bed and addressing James’s separation anxiety. Present goals include being able to go up and down stairs and feeding himself with a fork.
James experiences some interaction with other adults through his parents – for example, he accompanies his mother on occasional coffee dates with friends. BIJD was asked whether, in the absence of in-home care, she would be able to provide the same experiences for James which the support worker had provided. She responded:
I think there is a significant benefit of him having that support provided by somebody else… I can’t hide the fact that it is emotionally and physically taxing to have a significantly-delayed child and to spend the time that I’ve spent in facilities with him …and the trauma that I’ve experienced there and, if I’m honest with you, I don’t do as much therapy as I’d like with him outside his therapy times because I’m tired… he doesn’t sleep through the night like a three-year-old should… I’m dealing with my own mental health struggles of having the trauma of having a “baby” that I have…
… if I look at the last 18 months that he’s had a carer with him she provides him with opportunities that I don’t. She takes him to the art gallery, she takes him to the duck pond… they pick flowers… I don’t have the mental capacity with managing medication, managing fluid balances, doing all of his medical needs, doing his therapy loads, taking him to appointments, plus all the jobs that you normally do as a standard parent, I don’t have time to go to the duck pond … but I know my support worker is doing that right now with him because that’s what they do and they do the things that he should do as a three-year-old that I don’t do because, to be honest, I’m tired, I’m really exhausted as being a parent and it is the most taxing thing of having a developmentally-delayed kid…
BIJD told the Tribunal that the NDIA had suggested she try to access in-home care from other programs. Her evidence was that she had made, or had had made on her behalf, extensive enquiries about alternative funding sources but no other program had been identified which could affordably provide this kind of support to her family.
A letter of 28 June 2018 from James’s treating paediatrician, Dr Jeffrey Fletcher, was tendered. In it he observed:
During the next few years James is at risk of serious illness, and possibly death from respiratory illnesses given his current underlying cardiac status, if he were to contract a viral illness whilst in childcare. The risk of contracting such an illness in a child care environment is extremely high.
BIJD also tendered a letter from a social worker, Olivia Tough, dated 8 June 2017. Ms Tough said of BIJD:
This is a mother who wishes to remain in the workforce, providing a substantial contribution to the lives of others, whilst providing high quality care and support to her chronically ill child. This is a choice that is afforded to all women without a chronically ill child who meet the reasonable expectations of a parent whilst still being able to generate an income for their family.
THE ISSUES
The primary issue for determination by the Tribunal is whether the decision not to approve funding for two days of in-home care for James, as part of the participant supports in his plan, was the correct or preferable decision. That requires an assessment of whether this support qualifies as a reasonable and necessary support within the terms of the Act. I note that the plan to which this decision relates has in fact expired, and been replaced by a new plan. Technically a decision on this question has no practical effect, but the NDIA agreed a decision by the Tribunal favourable to James – that he should have been funded for in-home care at that time – would be influential in determining what supports he would receive in his present and future plans. There is, therefore, some efficacy in determining the question before the Tribunal notwithstanding that the plan it relates to has expired.
As already noted, any supports to which a participant is entitled must meet each of the requirements set out in s 34(1). This decision will consider the extent to which James meets each of those requirements, but I will begin by addressing a threshold question raised by the NDIA in relation to his eligibility for funding of this particular support.
Whether the support being sought is a reasonable and necessary support?
As a participant in the NDIS, James’s plan must include a statement of supports which specifies the reasonable and necessary supports which the Scheme will fund (s 33(2)). Any funded support must relate to his disability (Rule 5.1(b)).
In assessing the question of whether the support in question here satisfies the requirements of the Act, the NDIA submitted that the Tribunal needs to consider the purpose for which the support is sought. It pointed out that, at an earlier stage of the proceedings, the support in issue here was sought for the explicit purpose of allowing BIJD to attend paid employment for two days a week; at another point, the purpose of the support was described as respite. The Agency acknowledged, however, that at the hearing BIJD characterised the purpose of the support as facilitating therapeutic and developmental benefits to James through the involvement of a person other than a family member.
Notwithstanding that characterisation, counsel for the NDIA submitted that what was being sought in reality was simply childcare by another name. Counsel pointed to Dr Fletcher’s letter of 28 June 2018 as demonstrating that the in-home care was a necessary alternative to childcare where James’s susceptibility to infection made the latter unacceptably risky. It was argued that in-home care is being sought as a de facto substitute for childcare, which is not a support the NDIA generally provides to the families of disabled children. It was alternatively described by the Agency as respite for BIJD.
BIJD characterised the support quite differently. Her counsel described it as a support which is reasonable and necessary to allow James to meet the objectives set out in the Act for people with disabilities. In particular, counsel referred to paragraph 1.4 of the supports rules, which stipulates that supports should:
(i)support people with disability to pursue their goals and maximise their independence;
(ii)support people with disability to live independently and to be included in the community as fully participating citizens; and
(iii)develop and support the capacity of people with disability to undertake activities that enable them to participate in the mainstream community and in employment;
These objectives are linked directly with the capacity of family and carers to offer necessary support to, in particular, a child with disabilities. Counsel referred to the principles relating to the formulation of a participant’s plan set out in s 31, which require that the plan – and the supports funded under it – should:
(c)where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(d)where possible, strengthen and build capacity of families and carers to support participants who are children; and
…
(e)consider the availability to the participant of informal support and other support services generally available to any person in the community; and
BIJD disputed that the support could be characterised as respite; her counsel portrayed as a very bold submission the proposition that a person would go to work to obtain respite.
Emphasis was also placed on the lack of alternative programs or supports available in the community for a person with the problems encountered by James. There were, it was asserted, simply no other affordable alternatives available to in-home care.
Consideration
As a preliminary matter, I find that one outcome of the provision of in-home care to James is respite for BIJD. Notwithstanding her counsel’s characterisation, it is clear from her evidence cited at paragraph 24 above that, considering the pressure on her of addressing James’s many needs, the freedom to leave the family home and go to work is indeed a form of respite.
For participant supports to be funded, each support must meet each of the criteria in s 34(1). That subsection does not, however, constitute a definition for the purposes of the Act of reasonable and necessary supports. Evidently, supports must meet other tests to be eligible for funding; for example, they must relate to a participant’s disability, a criterion not explicitly enumerated in s 34(1).
In McGarrigle v NDIA [2017] FCA 308 the Federal Court considered the meaning of reasonable and necessary as used in the Act. Mortimer J indicated in this passage at [91]-[93] that the decision-maker’s enquiry is wider than simply determining whether each of the criteria in s 34(1) is met:
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.
Relevantly to this proceeding, the factor set out in s 34(1)(e) (“funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide”) goes to both whether a support is “reasonable” (in the sense of it being subject to provision or funding by the Agency) as well as whether it is “necessary” (in the sense of whether it is a support that cannot be provided by others).
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.
Counsel for the NDIA cited Fear and National Disability Insurance Agency [2015] AATA 706. There the Tribunal had to consider whether a pulse oximeter was most appropriately funded by the Scheme, as opposed to the health system. In determining that it was not, the Tribunal observed at [62]:
A support may serve more than one purpose or provide more than one kind of benefit. It may serve a clinical purpose at the same time as it allows a person to remain living at home. In determining whether it is most appropriately funded by the NDIS, the task is to consider what its primary purpose is. We accept the NDIA’s submission that the pulse oximeter has the primary purpose of assessing and regulating Mr Fear’s health condition, and may also appropriately be characterised as an aid or item of equipment that is associated with a medical procedure, being the clinical measurement of oxygen saturation in his blood.
(Emphasis added.)
The cases cited appear to require that a decision maker ask him- or herself three questions to determine whether a particular support is a reasonable and necessary support within the terms of the legislation. They are:
·What is the primary purpose of the support?
·Does the primary purpose of the support, so determined, meet the general requirements of the legislation of a reasonable and necessary support, for example, does it relate to the participant’s disability?
·If the support meets those general requirements, does it meet the specific criteria for eligibility set out in s 34(1)?
The apparent simplicity of the first question may be deceptive. Is the primary purpose to be determined by reference to how an applicant frames his or her request of the Scheme, or in terms of what an objective observer would consider the request delivers to the applicant? In the present proceeding, the Agency submits that, irrespective of how BIJD has framed her request, what is delivered by the support is childcare by any other name. Conversely, BIJD maintains that the support being sought delivers therapeutic and developmental benefits to James, benefits which address his disability. The fact that the support also delivers an ancillary benefit – respite to BIJD – does not alter its essential character as a support of a kind to which James is entitled as a participant in the Scheme.
On balance, I consider that the better approach here is to take BIJD’s request at face value and consider how well a support formulated in this way satisfies the other requirements of the legislation. The difficulty with adopting the approach suggested by the NDIA is that, to a certain extent, it requires a decision maker to step inside an applicant’s head and determine how much importance or value is being placed by that applicant on primary as opposed to ancillary benefits provided by the support. If the support being requested – in this case, therapeutic and developmental assistance to James – falls prima facie within the terms of the Act, it seems to me inappropriate to then weigh up the importance or value of secondary or ancillary benefits (some of which may fall outside the Act) in the applicant’s hands and then discount or downgrade the request on that account. In addition, such an approach entails an evaluative exercise of comparing primary against secondary benefits, an exercise fraught with difficulty. For example, how are the developmental benefits of the support to James assessed against the financial benefits of the support to his mother? How does one compare benefits being measured with different yardsticks?
I note this observation of the Tribunal in JQJT v NDIA [2016] AATA 478 at [41]:
The NDIA submits that the purpose of the community access support is to assist JQJT’s social participation and not to provide his parents with respite. We accept that submission but, when considering the wellbeing of any family caring for a person with serious disabilities, the two cannot readily be separated; respite is a secondary benefit that goes to the well-being of the family.
Having found that the primary purpose of the support being requested is therapeutic and developmental benefit to James through a non-familial carer, the next question is, does the support meet the general requirements of a reasonable and necessary support? In the particular context of this case, does the support relate to James’s disability?
Rule 5.1(b) of the supports rules provide that a support will not be funded if it is not related to the participant’s disability. A nexus between the need for a support and a participant’s disability does not appear to be otherwise spelt out in the Act, but is implicit in the legislation’s architecture. The Agency submitted that the two days of in-home care being sought by BIJD did not relate to James’s disability, namely his developmental delay. In this context it was argued that in reality BIJD seeks the support to address James’s susceptibility to infection (a health condition which is not related to his disability of developmental delay). Both his congenital heart disease and the susceptibility to infection that arises from it are best addressed by the health system, not the Scheme, it was contended.
On balance, I do not accept the Agency’s submissions on this point. I consider it passably clear that the support being sought bears a relationship with his disability. His disability is developmental delay; the claimed support provides therapeutic and developmental assistance through in-home care to overcome that developmental delay. His health condition precludes an alternative form of assistance to overcome his developmental delay, namely childcare. But both forms of assistance address, and are related to, the disability.
Having found that the primary purpose of the support – as characterised by BIJD – falls within the general requirements of a reasonable and necessary support under the Act, I now consider whether the support satisfies the specific requirements of s 34(1).
NDIA contended that the Tribunal cannot be satisfied of any of the matters in s 34(1), and in particular cannot be satisfied as to s 34(1)(e) (supports provided by family) and s 34(1)(f) (whether the support is most appropriately funded by the NDIS). It was argued that the reasons advanced by BIJD in support of the request for two days of in-home support appear largely associated with her interests, not James’s. To the extent that the support could be said to address James’s developmental delay, it was contended that current best practice demands processes that allow James to interact with children of about his age, whereas the support requested will only facilitate interaction with adults other than his parents.
BIJD contended that all of the requirements of s 34(1) are met. It was emphasised that, in the absence of viable alternatives compatible with James’s health needs, in-home care provided him with the best means of meeting his plan goals, undertaking social participation and addressing his disability, namely developmental delay. It was conceded by counsel for BIJD that the onus of establishing that the criteria in s 34(1) were met fell on her. The Tribunal agrees – though that submission is perhaps better put on the basis that unless it is positively satisfied that the criteria have all been met, the Tribunal must find in favour of the NDIA.
The support will assist James to pursue the goals, objectives and aspirations included in his statement of goals and aspirations – s 34(1)(a)
James’s goals are set out in the plan approved on 22 June 2016:
My First Goal is: to grow and develop my full potential.
During this plan I want: to have support from my parents to be the best I can be.
During this plan I want: to have support from therapists to achieve my developmental milestones.
During this plan I want: to have access to equipment and technology to allow me to communicate and interact with my family and friends.
My Second Goal is: to be happy healthy and well.
During this plan I want: to have access to equipment and consumables to support my Nasal gastric feeding.
During this plan I want: to have support from my medical and health care team to be healthy and well.
The NDIA submitted that childcare supports (as it described them) provided at home will not meet James’s goals. His goals are about achieving developmental milestones, an objective not well served by isolating him at home. It contended that he would be better served in a more social environment such as childcare.
BIJD’s submission was that the provision of a carer external to the family, who could provide him with social activities and outings outside of the home, is commensurate with the benefits which would be available to James were he able to attend a childcare centre. As such, it will assist him in attaining educational milestones. The carer also allows James to be comfortable in the company of people outside his family and therefore assist him in developing independence, self-awareness and confidence, as well as social, language and motor skills. The carer’s role will facilitate James’s eventual transition to mainstream schooling – again, something consistent with achievement of his developmental milestones.
Consideration
Although the principal source of evidence on this question comes from BIJD herself, the Tribunal accepts that the achievement of James’s developmental milestones is assisted by the provision of an in-home carer. It accepts the evidence that the provision of that care to date has in fact contributed to achievement of some important milestones, including that James is now better able to deal with separation from his mother.
The Tribunal also accepts the evidence, again from BIJD but also from Dr Fletcher, that participation in standard childcare arrangements is not compatible with James’s health requirements. As such, in considering the benefits available from an alternative form of therapy to childcare – albeit a markedly less satisfactory alternative, in terms of potential for development – it is irrelevant that James’s development goals would be better served if he attended childcare. Childcare is not an option for him, and therefore alternatives must be evaluated. Accordingly, in-home care is to be regarded as meeting the requirements of paragraph (a).
The support will assist James to undertake activities, so as to facilitate his social and economic participation – s 34(1)(b)
The NDIA submitted that childcare supports provided at home would not facilitate improved James’s social and economic participation as it would continue to isolate him from social contact. It submitted that remaining at home full time with an alternative carer is likely to limit his stimulation and access to different environments and people where he can be exposed to a range of differently developmental activities and other children who he can learn from by watching and copying. It maintained that the requested support does not address how he would obtain the necessary interaction and social contact to be able to develop appropriate social skills and learn how to interact with others and form relationships. James’s social interactions are met only in a confined way, the NDIA submitted, by virtue of in-home care.
Alternatively, BIJD argued that the interaction James achieves with people outside the family home, through undertaking excursions with his carer, is vital for his social participation.
Consideration
For the reasons given in relation to paragraph (a), the Tribunal considers that this criterion is met, although – again – only marginally. The Agency conceded that social interactions were achieved only in a confined way through this device; nonetheless, they are achieved. Again, it is irrelevant to point to alternatives which might better provide the same benefit, if the provision of the particular support does in fact deliver some facilitation of social interaction, in this case with adults.
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 – s 34(1)(c)
The NDIA contended that the requested support does not represent value for money and is not reasonable in the circumstances. It argued that it is not responsible for funding childcare supports, which is the usual responsibility of working parents. There is thus no value for money in this support.
The NDIA contended that this paragraph requires consideration both of the cost of this support compared with alternative means of achieving a similar outcome, and the cost which a decision to fund the support would represent to the operation of the Scheme as a whole, that is, what the Scheme would be required to fund if supports of this kind were funded generally. The latter issue touches on the financial sustainability of the Scheme (s 3(3)(b)). In this latter respect it relied on a report prepared by the Office of the Scheme Actuary dated 2 November 2017. That report purported to demonstrate that the in-home care sought by BIJD would cost the NDIS about $42,060 annually. The report further claimed that:
If all children age 0-6 with the Health condition [congenital heart disease] were to be permitted to enter the Scheme on the basis of obtaining 2 days per week Assistance with Self Care of a Child, then the annual cost to the Scheme would be $617.4m (ie. $43,759 x 14,109).
BIJD accepted the Scheme Actuary’s calculation of the cost of the support to James, but characterised expenditure of $42,060, given the significant benefits which will accrue to him, as a nominal sum of money. Attention was drawn to paragraph 3.1 of the supports rules which refers to assessing whether the costs of supports are reasonable relative to both the benefits achieved and the cost of alternative support… Counsel asserted that there was no alternative support available here for James, defined as either support services for a child with a condition precluding contact with other children or as support from a wider network of family or friends. In those circumstances it was suggested that the cost of in-home care – as the only alternative available for James – was reasonable value for money.
The Tribunal was told that providing this support now will result in a more streamlined transition for James into mainstream services when he is older and in better health. Money spent now on preparation for the transition will reduce the need for money to be spent on him participating in mainstream education in the future.
With respect to the financial sustainability of the Scheme, counsel for BIJD contended that the Scheme Actuary’s conclusions in this area should not be relied upon. He echoed a submission of the Agency, which suggested that provisions such as s 3 operated only on a general basis, and specific provisions such as those in ss 31 and 36 should better inform the Tribunal’s decision. He said, in any case, that the report could not be considered an expert report, given that it did not comply with the Tribunal’s guideline on the giving of expert evidence. Moreover, the author is apparently an employee of the Agency, and so cannot be considered independent. Finally, he contended that the assumptions underpinning the report could not be justified – for example, the assumption that the parents of all children with congenital heart disease aged 0-6 would seek two days of in-home care per week if BIJD’s application to the Tribunal succeeds.
Consideration
The Tribunal has little difficulty in finding that the cost of in-home care for James, in the terms sought by BIJD, is not reasonable. The support provides James with the benefits which accrue from interaction with adults outside his own family. The refereed literature demonstrates that there are benefits in terms of the development of young children, whether able-bodied or disabled, from such interaction. But because of James’s health condition, the support sought does not facilitate interaction with other children. Even taking into account the advantages to James of socialisation with adults, the benefits on offer here seem relatively limited. The principal opportunity appears to be for James to interact with his in-home carer, and encountering other adults, more or less incidentally, during excursions outside the home does not appear to offer a major increment to the quality of the benefit conferred by the in-home care.
At an annual cost of over $42,000, it therefore represents relatively poor value for money, particularly when it is borne in mind that other families facilitate interaction with adults outside the home at virtually no cost at all. It is doubtful whether a different conclusion could be reached even if the support also facilitated interaction with children of James’s age. The Tribunal accepts that BIJD’s capacity (and perhaps that of her husband) to provide this interaction to James is more limited than is the case with other parents, taking into account the personal toll of caring for a significantly disabled child, but that fact does not, by itself, make the support sought value for money.
The Agency also contended that the Tribunal must look at the implications that approval of the support would have on the overall financial sustainability of the Scheme. Section 3(3) requires that such matters be had regard to in giving effect to the objects of the Act; paragraph 10.5 of the Guideline – dealing with the question of value for money – links the considerations given rise to in s 34(1)(c) with the question of the financial sustainability of the Scheme referred to in s 3(3)(b). In this respect, the report of the Scheme Actuary starkly presents the proposition that providing in-home care to children sharing James’s disability would have a flow on effect on the Scheme of $617.4 million annually. On balance, I do not accept BIJD’s arguments against placing reliance on this report; although an estimate of downstream cost to the Scheme is made by its author, the sources of the data relied upon, and the calculations supporting the conclusion, are set out comprehensively in the report. The parties and the Tribunal are able to determine for themselves whether the costs arrived at in the report are supported by the available evidence. No submission was put to the Tribunal that either the premises or the calculations in the report were flawed.
Of course, a decision favouring BIJD would have precedential value. There are difficulties in determining precisely what the cost of that precedent might be. The Scheme Actuary’s estimate operates on several assumptions. It assumes that all Australian children with congenital heart disease are or would be eligible for participation in the NDIS, and that all parents and carers of such children would seek alternative forms of care, such as in-home care, as a substitute for the benefits generally recognised as being conferred through childcare. These assumptions seem reasonable to the Tribunal. It may not, however, be reasonable to assume that all Australian children with congenital heart disease would seek two days of care per week; presumably some households would prefer to rely upon various forms of familial care, such as grandparents. In this respect the figure may overestimate the cost. On the other hand, it is difficult to see why a decision to provide two days of in-home care to James would not have a flow-through effect for any disabled child for whom ordinary forms of childcare was unsuitable. It is fair to assume that there would be other forms of disability which could preclude the use of standard childcare. In this respect, the figure may underestimate the cost to the Scheme, perhaps quite substantially. On balance, the Tribunal considers it reasonable to assume that the downstream cost to the Scheme of a decision in favour of BIJD would be at least $617 million.
It should be observed that the enquiry demanded by s 3(3)(b) is flavoured with methodological uncertainty. If the section is to be construed as saying that any decision which adds significantly to the cost of the Scheme is to be eschewed, then the Tribunal would have little difficulty in finding for the Agency. However, financial sustainability surely entails the making of value judgements about the cost of widening the Scheme’s scope versus the benefits so conferred. Significant additional cost may be justified if the benefits thus conferred are also significant. Adopting the construction urged on the Tribunal by the NDIA proceeds on the assumption that the NDIA has already made decisions pitching the level of support for disabled Australians at the right level, and that to supplant those decisions in favour of more generous ones, irrespective of the merits of doing so, is ipso facto wrong. It is doubtful that this was the intention of the legislature. It might also be suggested that the notion of a scheme’s financial sustainability is itself a function of the nation’s overall liquidity and its priorities, matters over which the Tribunal may lack competency to make findings.
Putting that interpretive difficulty to one side, it nonetheless seems reasonable for the Tribunal to find in this case that the support being sought does not represent value for money, in that to award this support to BIJD would compromise the financial sustainability of the NDIS. I reach this conclusion in part based on the advice from the bar table that the Scheme does not generally fund childcare for children with disabilities. Set against the other challenges the Scheme is evidently facing, the financial case is not made out for the expansion of the Scheme into an area of this description. It may be that the Scheme could and should provide greater capacity for respite for carers of severely disabled children, but that is not the nature of the decision which the Tribunal has been asked to make here.
Section 34(1)(c) is not satisfied.
The support will be, or is likely to be, effective and beneficial for James, having regard to current good practice – s 34(1)(d)
The NDIA argued that the references to effective and beneficial and current good practice are directed at James’s disability needs and not his medical needs or general health issues. The support being sought, it maintained, was beneficial to his health need to avoid exposure to infection, rather than his disability need to overcome developmental delay. The Agency considered that it was unnecessary to determine what would be effective and beneficial in either context but rather it is sufficient to find that the requested support is not referable to his developmental disability needs, and therefore not effective and beneficial for the purposes of paragraph (d).
Alternatively, if the support could be regarded as designed to overcome James’s developmental delay, the NDIA referred the Tribunal to two documents which it suggested constituted best practice with respect to developmental delay. One was the background paper titled Strengthening Inclusive Practices in Early Childhood Intervention Services prepared by the Centre for Community Child Health, Murdoch Children’s Research Institute at the Royal Children’s Hospital, Melbourne dated September 2013. This paper sets out as a rationale for inclusion of children with disabilities with other children that:
·Children’s learning and development is optimised when they have regular opportunities to interact with a range of adults, caregivers and other children
·The learning and development of children with developmental disabilities is optimised when they have the same opportunities as other children to interact with a range of adults and caregivers, and with other children without developmental disabilities
The other document was the Policy Statement on Inclusion of Children with Disabilities in Early Childhood Programs dated 14 September 2015, prepared by the US Departments of Health and Human Services and of Education. It notes:
It is well documented that the beginning years of all children’s lives are critical for building the early foundations of learning and wellness needed for success in school and later in life. During these years, children’s brains develop rapidly, influenced by the experiences they share with their families, teachers, peers, and in their communities. Like all children, it is critical for children with disabilities to be exposed to a variety of rich experiences where they can learn in the context of play and everyday interactions and engage with their peers with and without disabilities. In partnership with families, high-quality early childhood programs can facilitate the experiences that foster learning for all children.
BIJD contended that these indicators of good practice have little relevance to the factual situation facing the Tribunal here, given James’s clear inability to take advantage of standard childcare arrangements. Her counsel submitted that the literature is premised on the child having a choice of setting; here, James has none.
Consideration
BIJD’s contentions in this respect must be supported. Current good practice must take into account the individual circumstances of particular children. It is difficult to imagine that any of the authors of the literature cited by the NDIA would recommend James participate in childcare against the recommendation of his treating paediatrician that this step would pose to him the risk of serious illness, and possibly death from respiratory illnesses.
Section 34(1)(d) is satisfied.
Reasonable expectations of families, carers and other support networks – s 34(1)(e)
The Agency contended that this paragraph is not met because the support sought does not take into account the reasonable expectation that James’s family, rather than the NDIS, should provide him with in-home care. Characterising the support as one which facilitates BIJD’s return to work, it suggested that this shifted a responsibility normally undertaken by a family member or members onto the shoulders of the Scheme.
Both parties directed the Tribunal to Rule 3.4 of the supports rules, which provides, inter alia:
3.4In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
(a)for a participant who is a child:
(i) that it is normal for parents to provide substantial care and support for children; and
(ii) whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age; and
(iii) the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and
(iv) whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing
…
(c)for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.
The Agency acknowledged that James’s care needs are substantially greater than those of children of a similar age. It contended that the Tribunal needs to consider how the provision of two days of in-home care takes into account risks to the wellbeing of his family members and improvement to his capacity or future capacity or reduced risk to his wellbeing. It said that, in doing so, regard must be given to BIJD’s desire to obtain respite, through part-time employment, from her caring duties. There is, however, no independent objective evidence that supports the existence of a risk to her wellbeing if the supports were not approved. In fact, to the contrary, the Agency contended, it appears that from March 2017 BIJD had in fact been working on a part-time basis and James’s caring needs must have been met by alternative means during that time.
BIJD asserted that there were few family members in the ACT who could replicate the benefits available from in-home care. She also relied on the provisions of Rule 3.4, asserting that James’s needs are indeed substantially greater than those of other children of his age, and a failure to provide in-home care would exacerbate the risks to the wellbeing of his family in this case. The family already makes a very substantial effort at providing care and support to James, and the funding sought would improve his future capacity and reduce the risk to his wellbeing arising from isolation at home.
She referred to the time- and labour-intensive requirements of caring for James, exacerbated by the fact that she herself is a paediatric therapist and so is necessarily more heavily involved in his care. He requires constant monitoring in case of heart failure or the onset of infection, and must be monitored throughout the night to ensure he has not aspirated or vomited. She submitted that being unable to go to work for 2½ days a week would impact her mental health and the family’s finances. James’s parents enjoy limited social life, the Tribunal was told, and have little opportunity to engage in activities external to the caring role. This contrasts with an active social and sporting life for them prior to James’s birth. BIJD has given up on home hobbies such as sewing and entertaining due to mental and physical fatigue. It was put to the Tribunal that the provision of in-home care allows her to sustainability [sic] maintain her caring role. In addition, this care had helped James overcome severe separation anxiety and develop independence, self-awareness and confidence.
Consideration
First, I consider that the evidence does establish that there is some level of risk to the well-being of James’s family members if this support is not provided (Rule 3.4(a)(iii)). The evidence of BIJD herself, set out in paragraph 24 above, was persuasive in that respect. Indeed, it would be surprising, given the level of James’s needs, if any family was not at risk of burnout and distress in circumstances such as these.
Secondly, it is important to focus on the nature of the support being sought in order to determine whether it is reasonable to expect (in this case) the participant’s family to provide that support. The support being sought here, as put to the Tribunal by BIJD, is therapeutic and developmental assistance to James in the form of in-home care, the principal form for which assistance is interaction by James with his carer and, to a lesser extent, with other adults outside his home. The Tribunal must ask itself whether this – the postulated primary purpose of the support – is reasonably delivered by the NDIS rather than by James’s family members.
It seems to me that, so characterised, the support is one which is most reasonably delivered by James’s family. Providing benefits to a developing child of that kind (benefits which, according to the literature, are important for all children, able-bodied and disabled) are commonly the responsibility in contemporary Australia of a child’s own family, whether through interactions facilitated by family members or through the provision of childcare – indeed, very often by both. The fact that James cannot access childcare does not detract from the observation that the expectation of the community would be that his family would facilitate these interactions, interactions that come at little expense and without the need for specialist intervention or facilitation. Paragraph (e) refers to what it is reasonable to expect families, carers… to provide; it does not say what it is reasonable to expect the participant’s family, the participant’s carers… to provide. The choice of language makes it clear that the test is one of community expectation of what should be the responsibility of a family in general, rather than of the particular family seeking this support. Notwithstanding that childcare is sometimes taxpayer subsidised, it is the general expectation of the Australian community that families bear the cost of the care of children below school age. Similarly, I consider that it would also be the community’s expectation that a child unable, for medical reasons, to interact with other children would obtain the benefits of interaction with adults through the activities of their own families, and not at community expense.
BIJD’s submissions on paragraph (e) placed emphasis on the risk to her mental health of not being able to undertake paid employment during the days James obtains in-home care, and on the financial impact on the family of such a decision. In doing so, she invoked the criterion referred to in Rule 3.4(a)(iii) – family wellbeing. I accept, as indicated above, that there is some risk to the psychological and financial well-being of James’s family if the support is not provided. However, the criteria in Rule 3.4 cannot supplant the criteria in the Act itself, specifically s 34(1)(e). The latter elevates the question of community expectations regarding the responsibility of families to the higher order of a decision maker’s consideration. In any case, Rule 3.4 suggests that no greater weight should be given to the wellbeing of the family than to the premise that it is normal for parents to provide substantial care and support for children (3.4(a)(i)).
The considerations inherent in Rule 3.4(a)(iii) echo to some extent the principles relating to plans set out in s 31 – particularly paragraphs (c) (where relevant, consider and respect the role of family…) and (d) (where possible, strengthen and build capacity of families…). However these principles are expressed in broad terms and, significantly, include transitional phrases (where relevant, where possible) which suggest that their ambit is subordinate to the specific eligibility criteria in, for example, s 34.
I consider that paragraph (e) is not met, in that it is reasonable to expect James’s family, or other informal networks around him, and not the Scheme, to provide him with interaction with non-familial adults.
Appropriateness of funding by the NDIS – s 34(1)(f)
The NDIA submitted that what is most appropriately funded by the NDIS and what is more appropriately funded in other ways is to be determined by reference to the Scheme’s rules. Rule 3.5 refers to Schedule 1 of the supports rules where matters to be considered in determining whether the supports are most appropriately funded through the NDIS, as opposed to other service systems, are set out. Paragraph 7.8 of Schedule 1 states a general principle under the heading Early childhood development:
7.8 The NDIS will be responsible for personalised supports, specific to a child’s disability (or developmental delay), which are additional to the needs of children of a similar age and beyond the reasonable adjustment requirements of early childhood development service providers.
Paragraphs 7.9 stipulates more specifically what the Scheme will fund in this regard:
7.9 The NDIS will be responsible for early interventions for children with disability (or developmental delay) which are:
(a)specifically targeted at enhancing a child’s functioning to undertake activities of daily living, but not supports which are specifically for the purpose of accessing a universal service such as school readiness programs that prepare a child for education; and
(b)likely to reduce the child’s future support needs, which would otherwise require support from the NDIS in later years, including through a combination and sequence of supports.
Paragraph 7.10 sets out what will not be funded:
7.10 The NDIS will not be responsible for:
(a)meeting the early childhood education and care needs of a child with a developmental delay or disability required by children of a similar age including through inclusion supports that enable children to participate in early childhood education and care settings; or
(b)supports, which are clinical in nature provided in the health system, including acute, ambulatory or continuing care…
These paragraphs specifically deal with supports the NDIS will be responsible for and those which it will not be responsible for. The Agency submitted that the support in question here fell squarely within paragraph 7.10, and therefore should not be funded; meeting the early childhood education and care needs of a child with a developmental delay or disability will not be a matter the NDIS will be responsible for. If early childhood education and childcare are generally not matters that the NDIS will be responsible for, then the provision of in-home care to facilitate substantively the same activity, correspondingly ought not to be funded by the Scheme, it was contended.
Similar provisions appear in the Guideline at paragraph 10.8 and in Appendix 1 thereto under the heading Early Childhood Development.
Additionally, the NDIA pointed to other programs which provide supports for children with disabilities who are unable to access mainstream childcare. These programs are funded through other mainstream systems, such as the Inclusion Support Programme which is funded by the Commonwealth Department of Education and Training. Nonetheless, whether funding is available through other general systems is not the test of whether a support is most appropriately funded or provided under the NDIS, the Agency argued.
BIJD referred the Tribunal to other provisions in the supports rules which, she contended, support the view that the support sought is most appropriately funded by the Scheme. She referred to paragraph 7.4 of Schedule 1 to the supports rules, which provides:
7.4 The NDIS will be responsible for supports related to a person’s ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment.
She also referred to paragraph 7.11(a), which provides:
7.11 The NDIS will be responsible for:
(a)supports for children, families and carers, required as a direct result of a child's disability, that enable families and carers to sustainably maintain their caring role, including community participation, therapeutic and behavioural supports and additional respite and aids and equipment…
BIJD gave evidence that, despite extensive endeavours by her and others, no other program had been identified that would be available to James to provide him with a viable alternative to in-home care.
Consideration
The Tribunal accepts the evidence of BIJD that there are, in fact, no other suitable programs – or other general systems of service delivery or support services, in the language of paragraph (f) – in Canberra which would provide a suitable alternative to the support she seeks for James. However, as paragraph 10.8 of the Guideline makes clear:
Whether or not funding is available through other general systems is not the test of whether a support is most appropriately funded or provided under the NDIS.
For example, the fact that the health system does not fund entirely, or even at all, what is essentially clinical treatment, or some other form of support that is more appropriately funded through the health system, does not make it the responsibility of the NDIS (see Young and NDIA [2014] AATA 401 at [41]).
In contrast to s 34(1)(e), which should be interpreted according to the ordinary meaning of the words used, s 34(1)(f) uses concepts which are not comprehensible by reference solely to the words used. The notion of what is most appropriately funded… through the… Scheme and what is more appropriately funded… through other general systems is understandable only by reference to other documents, in this case the Scheme’s rules (by virtue of s 34(2)). The supports rules and the Guideline, in turn, describe both general principles and specific examples of where a particular kind of support does or does not meet the test in paragraph (f).
It must be said, in the present context, that the provisions of these documents pull somewhat in different directions at times. James’s circumstances may be said to fall variously both within and outside the kind of supports which are most appropriately funded. Applying the principle of generalia specialibus non derogant, however, the Tribunal considers that the provision which most specifically describes James’s position is paragraph 7.11 of Schedule 1:
(a)supports for children, families and carers, required as a direct result of a child's disability, that enable families and carers to sustainably maintain their caring role, including community participation, therapeutic and behavioural supports and additional respite and aids and equipment…
That paragraph specifies supports of this kind as ones for which the NDIS will be responsible.
On balance, the Tribunal considers that s 34(1)(f) is satisfied.
CONCLUSION
The Tribunal has considerable sympathy for the challenging position in which BIJD and her family find themselves. James’s needs are such that it cannot be doubted that caring for him does place the mental, emotional and even physical health of BIJD, in particular, at some risk.
The legislation, and more particularly the rules and guidelines made to aid its interpretation, require a decision maker to take into account the need to buttress the role of families and carers in relation to people with disabilities, most particularly children. There is some temptation to give that consideration such pre-eminence in the rollout of NDIS services that supports are funded as much for what they do for families as for what they do for the person with disabilities. But the focus of the NDIS must remain firmly on the needs of those with disabilities, such that the eligibility criteria for NDIS supports should be broadly consistent across communities and not calibrated so heavily to the ancillary needs of others that distortions in the Scheme are created.
In the particular circumstances of James, the Tribunal is acutely conscious that a decision to fund a substitute for childcare, albeit one with some ameliorating impact on his disability, would have great precedential value, and could facilitate a significant and costly expansion of the Scheme. The Tribunal does not consider that the circumstances here warrant such an outcome.
The support which BIJD seeks for James does not satisfy paragraphs (c) and (e) of s 34(1). Accordingly the reviewable decision made (apparently) on 8 September 2016 is affirmed.
I certify that the preceding 104 (one-hundred and four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries
.......................................................................
Associate
Dated: 10 August 2018
Date(s) of hearing: Monday, 2 July 2018 Date final submissions received: Monday, 2 July 2018 Counsel for BIJD: Mr Jason Moffett Solicitors for BIJD: Ms A Ballard, Legal Aid ACT Counsel for the NDIA: Ms Kristy Katavic Solicitors for the NDIA: Ms L Hinwood, Sparke Helmore
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