Blazey and National Disability Insurance Agency (NDIS)
[2025] ARTA 382
•17 April 2025
Blazey and National Disability Insurance Agency (NDIS) [2025] ARTA 382 (17 April 2025)
Applicant/s: Alyssa Blazey
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/7786
Tribunal:Deputy President O'Donovan
Place:Brisbane
Date:17 April 2025
Decision:
The decision under review is set aside and the statement of
participant supports annexed to these reasons for decision is approved.
Damien O’Donovan
........................................................................Deputy President O'Donovan
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – applicant with brain injury and epilepsy – transport allowance – continence products – continence disposal – decision under review set aside and substituted
Legislation
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) r 5.1
National Disability Insurance Act 2013 (Cth) s 24Statement of Reasons
The applicant is a 38-year-old woman. She is a participant in the National Disability Insurance Scheme. She has been a participant since 16 February 2015. Her most significant impairments that meet the disability access criteria in s 24 of the National Disability Insurance Act 2013 (Cth) (‘Act’) are an acquired brain injury and epilepsy. She lives independently but because she suffers multiple seizures each day, she has very high care needs.
On 4 May 2023, a delegate of the CEO of the National Disability Insurance Agency (‘NDIA’) made a decision under s 33(2) of the Act to approve a statement of participant supports (‘Statement’) for the period 4 May 2023 to 3 May 2024.[1] The applicant applied for review of the decision and on 6 October 2023 a different delegate of the CEO made a decision to vary the statement of participant supports.[2]
[1] T-Documents, T22, 105-118.
[2] Ibid, T2, 23-25.
The Statement did not include all of the supports that the applicant, through her guardian, was seeking and on 22 October 2023, the applicant sought review in the Administrative Appeals Tribunal (‘AAT’).[3] During the conferencing process, the AAT made an order under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’), remitting the application to the NDIA for further consideration. A new Statement was approved with additional supports found to be reasonable and necessary and which would be funded by the NDIA.
[3] Ibid, T1, 1-9.
Significant disagreements however remained between the parties and the matter was listed for hearing in September 2024. The matter was part heard and had to be listed for further hearing days in March 2025. In the meantime, the AAT Act was repealed, and the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’) commenced. As a result, the matter was transferred to the Administrative Review Tribunal (‘Tribunal’) for completion of the hearing and determination of the application for review.
Over the course of the final hearing, as new evidence was presented, the respondent modified its position. By the time the hearing closed, much of what had been the subject of dispute at the commencement of the hearing had been agreed between the parties.
However, a few small items remained to be determined. The contested items were:
(a)Transport - The amount of transport funding that should be available to the applicant. The position of the NDIA was that the applicant should be funded at the rate of $1 per kilometre (as charged by the applicant’s care provider) but only for community engagement outings, not for outings such as going to the shops, the pharmacy or doctors’ appointments. The NDIA submitted that the costs associated with trips of that kind were day-to-day living costs which cannot be funded due to the National Disability Insurance Scheme (Supports for Participants) Rules 2013. Further, as the applicant’s care provider had agreed not to charge for such outings, the funding of the support did not meet the ‘value for money’ criterion in section 34 of the Act;
(b)Continence products - the NDIA was willing to fund continence products but only in the amount of $16,437.01 whereas the applicant was seeking a budget of $18,692. The crux of the dispute was whether the support should be costed on the basis of the average cost of supply across a few suppliers or on the basis of the cheapest suitable provider. The NDIA’s contention was that the average cost calculation did not represent value for money;
(c)Continence product disposal service - The NDIA indicated in closing that it would be willing to fund continence disposal products on a weekly basis as a ‘quote required’ support.
CONSIDERATION
Travel
The evidence shows and the respondent accepts, that the applicant needs close supervision 24 hours per day. Seizures can come on at any time and a support worker needs to be very close by to ensure that she does not injure herself. Despite the severity of her disability, the applicant also wants to access the community when she can and occasionally go on longer trips outside of Canberra. To make this possible, her care providers have purchased a car exclusively for use by the applicant’s carers. The car is charged to the applicant’s guardian at the cost of $1 per kilometre.[4] When the car is used for community access events, the respondent is willing to provide for funding on that basis in the applicant’s statement of participant supports. However, when the car is used for running errands such as taking the applicant to a doctor, collecting pharmaceuticals or driving to the shops, the respondent considers that it cannot fund such trips because they are excluded by the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (‘Support Rules’).
[4] TB, item 2.11, 310.
The Support Rules provide as follows:
General criteria for supports
5.1 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.
The respondent contends that the costs associated with trips to the pharmacy and the like constitute day-to-day living costs and therefore cannot be funded. I do not accept that submission. The evidence shows that the applicant’s condition prevents her from leaving the house without assistance and that her seizures can suddenly and unexpectedly result in her being unable to attend planned outings.[5] As a consequence, much of her accessing the community happens in spontaneous and unplanned ways. If an opportunity to get the applicant out of the house presents itself, then her carers take it. Sometimes that is an outing to a special place, sometimes it is to do an essential task. None of costs associated with those outings meet the description of a day-to-day living cost that are not attributable to the applicant’s disability support needs. The applicant’s transport arrangements are specifically designed for her support needs and facilitate community access whenever possible. A hybrid car that operates smoothly in order to minimise the risk of seizures has been selected. It is available at all times to ensure that when the applicant can undertake an outing it is available to be used. When it is used for any purpose outside of the home it is facilitating community engagement. In these circumstances, I am satisfied that whenever the vehicle is being used with the applicant, the costs are attributable to her support needs.
[5] TB, item 2.3, 246. Exhibit A10, 12.
Accordingly, rule 5.1 does not operate to exclude funding of travel for any of the journeys that the applicant undertakes.
The question then is, does the support, being transport to destinations previously treated as day to day living expenses, represent value for money if a third party has agreed to provide the travel for free. It is important to understand that the applicant’s care provider agreed not to charge the client for these journeys in a context where the NDIA was unwilling to fund such journeys. The fact of the agreement in those circumstances does not shed much light on whether the support represents value for money as required by section 34 (1)(c) of the Act. The question needs to be approached more objectively.
$1 per kilometre for transport outside of the home does represent value for money in this case – all parties now agree that the rate for transport is appropriate. I am satisfied that all journeys outside the home contribute to community engagement. In those circumstances the support meets the criteria in s 34 and should be funded on that basis.
Continence Products
The dispute in relation to continence products is focussed on whether it can be supplied at a lower price than that assessed by a continence nurse.
The nurse in question is Ms Muchenagumbo. She determined what continence products the applicant needed and priced them on the basis of the average cost across a range of providers.
The respondent was subsequently able to identify a cheaper provider who could provide the products for less than the average price determined by Ms Muchenagumbo. On this basis, the respondent contends that supports funded above $16,437 do not represent value for money. This, however, is an oversimplification. As was pointed out by the applicant, the supplier identified by the respondent was offering some of the necessary products on sale for a limited time. In relation to that particular supplier (or indeed any single supplier) there was always the possibility that stock would run out and a more expensive supplier would need to be used. On that basis, it was prudent to give the higher allowance in the Statement to ensure that the applicant’s needs were covered in the event of price rises or limits on stock. I accept this contention.
Specifying a lower funding amount places the risk of price increases on the applicant’s guardian. I am satisfied that the applicant’s guardian and close family are not profligate and have no desire to spend any more than is necessary to provide quality care to the applicant. There is no reason to think that they would not be willing to choose lower cost options when appropriate. Funding of up to $18,692 allows them to source continence products from a range of providers if stock is unavailable at the cheapest prices possible. That sum represents value for money even though it does not represent the lowest possible cost. That amount of funding provides the correct balance between ensuring continuity of supply and reasonable prices.
Continence Product Disposal Service
Consistent with the parties’ agreement, I have included a weekly continence product disposal service on a ‘get quote’ basis in the Statement.
Decision
Annexed to these reasons is a statement of participant supports that includes all the reasonable and necessary supports that will be funded on and from 25 September 2024. The agency must reassess the plan to which this statement attaches by 17 April 2027.
The decision under review is set aside and the statement of participant supports annexed to these reasons for decision is approved.
Dates of hearing: 9 and 10 October 2024; and 17, 18, and 19 March 2025
Counsel for the applicant: Ms Bridie Harders
Solicitor for the applicant: Legal Aid ACT
Counsel for the respondent: Ms Janice Cunliffe
Solicitor for the respondent: Mills Oakley
EXIBIT REGISTER
Exhibit Description TB Joint Tender Bundle (pages 1 to 546),
Contains T-Documents at pages 5-209.
A1 Email from Zoe Fennell to Legal Aid dated 9 October 2024 A2 Architectural plans by Hyperspace, filed 10-10-2024 A3 Statement of applicant’s disability support payment 23 September 2024, filed 10-10-2024 A4 Counselling invoices from K Stewart, filed 10-10-2024 A5 Travel logbooks from Havencare, 3/07/2024 – 21/07/2024, filed 10-10-2024 A6 Travel logbooks from Havencare 31/07/2024 – 31/08/2024 filed 10-10-2024 A7 Travel logbooks from Havencare 1/09/2024 – 30/09/2024 filed 10-10-2024 A8 Plan spend on consumables – statement of participant spend to 16 Sept 2024 A9 Continence Report of Christina Muchenagumbo dated 20 December 2024 A10 OT Report by Michael Malcomess dated 18 February 2025 A11 Statement of Arden Blazey dated 12 March 2025 A12 42D Remittal Plan dated 26 September 2024 A13 AB Mileage record from 26/09/24-25/10/24 A14 AB Mileage record from 26/10/24 – 25/11/24 A15 AB Mileage record from 26/11/25-25/12/24 A16 AB Mileage record from 26/12/24-25/01/25 A17 AB Mileage record from 26/01/25-25/02/25 A18 Email from Ms Heremaia dated 5 March 2025 sent at 4:19PM A19 SHADS Award STATEMENT OF PARTICIPANT SUPPORTS
1.The Tribunal decides that the decision dated 25 September 2024 made under s 33(2) of the Act, is set aside, and in substitution it is decided to approve all previous statements since 4 May 2023 pursuant to which reasonable and necessary supports have been funded and:
(a)Pursuant to s 33(2)(a) of the Act, to replicate the general supports (if any) that will be provided to, or in relation to, the Applicant in the same manner identified in the Applicant’s statement of participant supports dated 25 September 2024.
(b)Pursuant to s 33(2)(b) of the Act, to include the following reasonable and necessary supports in the Applicant’s statement of participant supports, calculated at a rate as set out in the National Disability Insurance Scheme Pricing Arrangements and Price Limits where a nominal value is not indicated:
Core Supports
· Consumables (plan-managed):
· Continence consumables in the amount of $18,692.00 as per Annexure A.
· Continence consumables disposal as a quote required support.
· Low Cost AT - Personal Care And Safety = $500.00
· Daily Activities:
· Regular SIL in the amount of $808,154.20 as per the Haven Care Australia Roster of Care dated September 2024 but with no Irregular SIL component (NDIA-managed).
· Activity based transport funding in the amount of $9,050.00 (plan-managed).
· Social Community and Economic Participation (plan-managed):
· 168 hours of support worker assistance.
· Transport (plan-managed):
· Periodic transport funding in the amount of $2,472.00 for Level 2 transport.
Capacity Building
· Support Coordination (NDIA-managed):
· 90 hours of Level 2 support coordination.
· Choice and control (NDIA-managed):
· Plan management set up costs.
· Plan management monthly costs.
· Daily Activity (plan-managed):
· 15 hours of Assessment Recommendation Therapy or Training – Other Professional for occupational therapy.
· 5 hours of Assessment Recommendation Therapy or Training – Physiotherapist
· 20 hours of Assessment Recommendation Therapy or Training – Exercise Physiologist
· 7 hours per annum of Assessment Recommendation Therapy or Training – Other Professional for group program.
· 7 hours per annum of Assessment Recommendation Therapy or Training – Other Professional for pedorthist review.
· 40 hours per annum of counselling.
· 6 hours of clinical nursing support for a continence assessment
Capital Supports
· Assistive Technology (plan-managed):
· Assistive Technology Repairs and Maintenance funding in the amount of $1,000.00 per year for wheelchair repairs and maintenance.
· Assistive Technology Repairs and Maintenance funding in the amount of $300.00 per year for CCTV repairs and maintenance.
· Assistive Technology funding in the amount of $2,505.86 for a foot stocking.
· Assistive Technology funding in the amount of $2,134.00 for a ShowerBuddy SB3T roll in space tilt commode.
· Home Modifications (plan managed):
· Home modifications funding in the amount of $6,366.00 consisting of:
§ $687.00 for a throne accessory.
§ $695.00 for the reinstallation of CCTV system.
§ $250.00 for a handheld shower hose.
§ $545.00 for bathroom grab rails.
§ $1,630.00 for crash matting for bathroom walls and floor.
§ $475.00 for crash matting for grabrails and throne accessory.
§ $999.00 for wheelchair accessible vanity unit.
§ $1,085.00 for a cavity slider door.
(c)The supports at paragraph (1)(b) above are to be provided in complete replacement of the reasonable and necessary supports provided in the Applicant’s statement of participant supports dated 25 September 2024.
(d)Pursuant to s 33(2)(c) of the Act, to change the date by which the Respondent must reassess the Applicant’s statement of participant supports to 12 months from the date on which the Applicant’s statement of participant supports takes effect.
(e)Pursuant to s 33(2)(d) of the Act, to the management of the funding of the Applicant’s reasonable and necessary supports is to be as outline above in paragraph (1)(b) above.
(f)Pursuant to s 33(2)(e) of the Act, to replicate the management of other aspects of the plan in the same manner in which they are managed in the Applicant’s statement of participant supports dated 25 September 2024.
- The following amounts have already been incurred on reasonable and necessary supports identified below:
(a)$1,084.50 for continence products purchased by the Participant as follows:
(i)Payment made by Participant to Clifford Hallam Care Eastern Creek on 5 December 2024 in the amount of 466.83.
(ii)Payment made by Participant to Clifford Hallam Care Eastern Creek on 10 January 2025 in the amount of $310.60.
(iii)Payment made by Participant to Clifford Hallam Care Eastern Creek in or around March 2025 in the amount of $307.07.
(b)$2,826.10 for mileage expenses incurred by the Participant as per Annexure B.
ANNEXURE A: Continence Consumables
| Identified needs | Recommended Product | Quantity | Cost per unit /packet | Yearly amount | Total cost |
| Disposable washable underwear | MoliCare Premium Mobile 10 Drops Pull Up Pant | Pack of 14 Size: LARGE (W100-150cm) 2,616ml | 8= day & night | $62.00 | 2688 | $11,904.00 |
| Skin care | Sudocream 400g | 1/ month | $32.99 | 12 | $395.88 |
| Bedding | Waterproof mattress protector cover for standard Double bed | 4/year | $84.95 | 4 | $339.80 |
| Waterproof Kylie single (tuckable under the mattress) with wings Double bed | 8/ year | $84.95 | 8 | $679.60 | |
| Waterproof Doona inner Quilt Double bed | 1/6 months | $359.95 | 2 | $719.90 | |
| Waterproof Doona Quilt Covers Protector Double bed. | 4/ 6months | $164.99 | 8 | $1,319.92 | |
| Waterproof Pillow Protector case | 6/year | $29.95 | 6 | $179.70 | |
| Waterproof & Absorbent Chair Pad (with ties) | 8/year | $59.99 | 8 | $479.92 | |
| Waterproof Mattress Contenda MPC Double | 1/year | $1,855.00 | 1 | $1,855.00 | |
| Hygiene | Molicare Skin Care Tissues | 4/week | $5.99 | 192 | $287.28 |
| Odour be gone Hos-togel 500g | 1/ month | $44.25 | 12 | $531.00 | |
| Total Cost $18,692.00 | |||||
ANNEXURE B: Reimbursement for mileage expenses
The Applicant has made the following payments in relation to mileage expenses:
·Payment from Participant to Haven Care Australia Pty Ltd on 17 December 2024 in the amount of $1,679.00 for the period 26 September 2024 to 25 November 2024 (see mileage logs at Exhibit A13 and A14).
·Payment from Participant to Haven Care Australia Pty Ltd on 2 March 2025 in the amount of $1,442.10 for the period 26 November to 25 January 2025 (see mileage logs at Exhibit A15 and A16).
·Payment from Participant to Haven Care Australia Pty Ltd on 6 March 2025 in the amount of $839.00 for the period 26 January 2025 to 25 February 2025 (see mileage log at Exhibit A17).
Noting that the Agency has provided $1,134.00 in periodic transport funding, the Applicant seeks payment for the difference being $2,826.10.
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