BMCX and Chief Executive Officer of the National Disability Insurance Agency (NDIS)
[2025] ARTA 199
•28 February 2025
BMCX and Chief Executive Officer of the National Disability Insurance Agency (NDIS) [2025] ARTA 199 (28 February 2025)
Applicant/s: BMCX
Respondent: Chief Executive Officer of the National Disability Insurance Agency
Tribunal Number: 2023/5556
Tribunal:Senior Member K Parker
Place:Melbourne
Date:28 February 2025
Decision:The Tribunal sets aside the Decisions under Review and remits this matter for reconsideration by the Respondent with a direction that it facilitates the approval of a new statement of participant supports (‘SOPS’) for the Applicant, which contains the following:
provisions approving NDIS funding for:(a)
an additional four hours of support worker assistance per week to assist the Applicant to undertake activities of daily living;(i)
(as a “stated support”) 46 hours per annum of occupational therapy services, which includes six hours per annum to prepare detailed progress reports for submission to the NDIA at six-monthly intervals;(ii)
(as a “stated support”) 60 hours per annum for psychology services for the purpose of undertaking therapy which will build the Applicant’s functional capacity,(iii) which includes eight hours per annum to prepare detailed progress reports for submission to the NDIA at six-monthly intervals;
(as a “stated support”) four hours per annum for quarterly review by a psychiatrist for the purpose of advising the Applicant about the prescription of medication for her condition of inattentive ADHD to improve her functional capacity; and(iv)
replication, on a pro rata basis, of all other supports in the Applicant’s current SOPS, except for funding for capacity building supports which is to be wholly replaced by funding for the supports referred to in sub-paragraphs (a)(ii), (iii) and (iv) above, and except for any one-off supports already expended by or on behalf of the Applicant; (v)
a provision specifying that the reassessment date will fall on the 12 month anniversary of the date of approval of the new SOPS for the Applicant in accordance with this direction; and(b)
provisions specifying that the plan management specifications in the new SOPS are to remain the same as specified in the old SOPS.(c)
.......................................................................
Senior Member K Parker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – plan review – adult participant – request for 13 supports including specialist disability accommodation, medium term accommodation, increased hours of support worker assistance, increased funding for occupational therapy services and psychology services, funding for physiotherapy services, funding to see a psychiatrist and endocrinologist, funding to purchase a laptop, Garmin hybrid watch and ergonomic car, funding for regular hair-removal electrolysis services, funding for meal preparation and delivery services – consideration of what is “an NDIS support” and is “not an NDIS support” for the purpose of s 34(1)(f) of the National Disability Insurance Scheme Act 2013 (Cth) – consideration of recent amendments and National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 - whether certain supports meet the criterion under s 34(1)(aa) – identification of impairments in relation to which the Applicant meets the disability requirements under s 24 or the early intervention requirements under s 25 – whether “reasonable and necessary supports” criteria under s 34(1) are met – Tribunal concluded that not all of the Applicant’s impairments are, or likely to be, permanent – Tribunal concluded that four out of the 13 requested supports are “reasonable and necessary supports” under s 34(1) – Decisions Under Review set aside and remitted with a direction that a new statement of participant supports be approved for the Applicant
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth)Other
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024
National Disability Insurance Scheme (Old Framework Plans) Determination 2024
National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013Statement of Reasons
INTRODUCTION
The Applicant, BMCX, is an adult participant in the National Disability Insurance Scheme (‘NDIS’). She was granted access in about 2021 on the basis of impairments attributable to a psychosocial disability resulting from the condition of Major Depressive Disorder (‘MDD’). BMCX also has other mental health conditions. BMCX claims to have physical, sensory, and neurological impairments, arising from pain and other ailments and injuries reportedly sustained during motor vehicle accidents.[1] BMCX also has a suspected congenital condition affecting her feet.
[1] BMCX gave evidence that she has been involved in three motor vehicle accidents. The first in 2010 when she was a passenger, the second and third in 2014 and 2018 when she was a driver. BMCX gave evidence that she made a TAC claim in respect of the first and second accidents, but not the third accident.
The NDIS is administered by the National Disability Insurance Agency (‘NDIA’) under the provisions of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) and associated rules.
BMCX initially sought review of a decision by a delegate of the Chief Executive Officer (‘CEO’) of the NDIA made on 4 July 2023 under s 100(6) of the NDIS Act relating to an earlier decision to approve a statement of participant supports (‘SOPS’) for BMCX forming part of her previous NDIS plan.[2] Subsequently, four new SOPS have been approved for BMCX. By operation of s 103(2) of the NDIS Act, the four subsequent decisions to approve those successive SOPS for BMCX are also now the subject of the review in this application.
[2] T-Documents, T1A.
Essentially, the Tribunal will make a decision in this application about whether funding for the 13 supports requested by BMCX (as listed in paragraph [9(b)] below), should be included in her NDIS plan. BMCX and the NDIA both confirmed at the end of the substantive hearing that there is no issue between them as to the notional duration of any new NDIS plan to be approved for BMCX (and that it should be 12 months), or how the funding in it should be managed (and that it should remain as it is currently being managed).
For the reasons set out below, the Tribunal sets aside the Decisions Under Review (as described in paragraph [41]) and remits this matter for reconsideration by the NDIA with a direction that the NDIA facilitate the approval of a new SOPS for BMCX, which includes additional funding for four of the supports being requested by BMCX, namely, funding for additional support worker assistance, additional occupational therapy (‘OT’) services, additional psychology services and for periodical medical review by a psychiatrist.
The Tribunal has decided that the remaining nine supports being requested by BMCX do not meet the “reasonable and necessary supports” criteria under s 34(1) of the NDIS Act, and are not to be funded under the NDIS.
ISSUES
Section 25(4A) AAT Act Order, and subsequent s 53 ART Act Order, to confine the issues, evidence, and questions of fact in this proceeding
As this matter was being prepared for a substantive hearing, a number of challenges arose. For one thing, the types of supports being requested by BMCX over the course of the proceeding were either not clearly specified and were significantly altered by BMCX. Specifically, in January 2024, BMCX requested funding for numerous additional supports. On 10 July 2024, BMCX informed the Tribunal she would like only her request for SDA considered when deciding this application. On 2 December 2024, BMCX changed her position again and informed the Tribunal that she was now seeking the 13 requested supports referred to in paragraph [9(b)] below.
To address this challenge, initially, on 10 July 2024, the Tribunal made an order under s 25(4A) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) (‘s 25(4A) Order’). On 3 December 2024, the Tribunal made an order under s 53 of the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’) (‘s 53 Order’) so that both parties and the Tribunal would understand, in advance, the issues that would be addressed at the substantive hearing. This enabled the parties to prepare their evidence and submissions with certainty about the issues to be considered and decided upon in this proceeding. No objection was made by either party to the making of the s 25(4A) Order initially, and subsequently, to the making of the s 53 Order.
Under the s 53 Order, the Tribunal directed that the issues, evidence, and questions of fact in this proceeding, would be confined to the following:
(a)whether BMCX has the following impairments in relation to which she meets the disability requirements under s 24 or the early interventions requirements under s 25 of the NDIS Act:
(i)impairments attributable to a psychosocial disability in respect of the conditions of MDD, Attention Deficit Disorder (‘ADD’), Gender Dysphoria and Dyslexia (which affects the spelling of words and her use of grammar); and
(ii)physical impairments and neurological impairments affecting her neck, face, right shoulder (and sometimes her left shoulder), upper, middle, and lower back, right leg, both of her feet, knees and forearms, and her left hip, arising from a motor vehicle accident; and
(iii)sensory impairments arising from skin sensitivity and the pain she experiences; and
(b)whether each of the following supports meet the “reasonable and necessary supports” criteria under s 34(1) of the NDIS Act and should be funded under BMCX’s NDIS plan:
(i)specialist Disability Accommodation (‘SDA’);
(ii)medium-term accommodation “for the next two months”.
(iii)increased hours of support worker assistance from 11 hours per week (comprising six hours for SCCP and five hours for activities of daily living (‘ADLs’) to 56 hours per week (comprising 28 hours for social, civic and community participation (‘SCCP’) and 28 hours for ADLs). BMCX said she would like the support worker who assists her to have a suitable background to be able to assist her with searching for mainstream employment. BMCX also requested funding for laundry services, however, the Tribunal considers this to fall into the request for increased hours of support worker assistance because BMCX may arrange for the support worker to assist BMCX to do her laundry in a manner which will address the dermatological issues BMCX says she has with this task;
(iv)funding to buy a suitable ergonomic car (preferably a Mazda, Hyundai, or Kia SUV) with certain features;
(v)laptop;
(vi)meal preparation and delivery services;
(vii)Garmin hybrid watch to track her heart rate (value $300 - $500);
(viii)physiotherapy (two 90 minute sessions per week including dry needling and stretching);
(ix)OT (unspecified number of hours except for a reference to two-hourly sessions);
(x)psychologist (increase to one two-hourly session per week with extra time for report writing);
(xi)psychiatrist (one two-hourly session every week with extra time for report writing and medication reviews);
(xii)endocrinologist (one two-hourly session per fortnight); and
(xiii)electrolysis services for hair removal (2-3 hours per week).
LEGISLATIVE FRAMEWORK
Section 33(5) of the NDIS Act provides as follows:
(5)In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a)have regard to the participant’s statement of goals and aspirations; and
(b)have regard to relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f)have regard to the operation and effectiveness of any previous plans of the participant; and
(g)have regard to whether section 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant.
Section 34(1) provides as follows:
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(aa)the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(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 an NDIS support for the participant.
Note: For the purposes of paragraph (aa):
(a)the time at which the disability requirement or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b)a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
Under s 35 of the NDIS Act, the Tribunal is bound to make its decision in accordance with relevant provisions in the:
(a)National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘Supports Rules’);
(b)National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (‘Transitional NDIS Supports Rules’);
(c)National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (‘Miscellaneous Rules’); and
(d)National Disability Insurance Scheme (Old Framework Plans) Determination 2024 (‘Determination’).
EVIDENCE, SUBMISSIONS AND HEARING
Evidence
The NDIA has lodged the following documents with the Tribunal:
(a)on 11 August 2023, a set of documents pursuant to s 37 of the AAT Act (‘T-Documents’) totalling 229 pages;
(b)on 15 February 2024, a set of documents entitled “Additional Material Bundle” (‘NDIA’s First HTB’) totalling 14 pages;
(c)on 18 November 2024, a set of documents entitled “Respondent’s Tender Bundle” (‘NDIA’s Second HTB’) totalling 188 pages;
(d)on 1 December 2024, a set of documents entitled “Supplementary Tender Bundle” (‘NDIA’s Third HTB’) totalling 16 pages;
(e)on 31 January 2025, a set of documents entitled “Supplementary T-Documents” (‘ST-Documents’) totalling 28 pages;
(f)letter from the NDIA’s lawyers to the Tribunal and BMCX dated 16 January 2025 following a remittal by the Tribunal, which sets out the additional supports the NDIA considered as of that date, to be reasonable and necessary supports for BMCX under the NDIS Act;[3]
(g)new NDIS publication entitled “Supports that are not ‘NDIS supports’” (undated);[4]
(h)on 17 February 2025, a bundle of “Summonsed Records” (‘NDIA’s Fourth HTB’) totalling 1,151 pages.
[3] Attached to the NDIA’s Further Supplementary SFIC lodged on 7 February 2025.
[4] Attached to the NDIA’s Further Supplementary SFIC lodged on 7 February 2025.
At various times, BMCX has lodged documentation with the Tribunal and has also made submissions by sending emails to the Registry of the Tribunal. This has included an NDIS “Home and Living Form” completed by BMCX on 7 February 2024, (‘H&L Form’) at the request of the Tribunal, following her request for SDA. The Tribunal has prepared an exhibit list (‘Exhibit List’) noting these documents and emails lodged by BMCX, and the various documents lodged by the NDIA. This Exhibit List was sent to the parties prior to handed down this Decision.
An NDIS Quote for a meal preparation and delivery service prepared by Well Movement Pty Ltd (trading as “Able Foods”) dated 1 February 2024 was lodged with the Tribunal on behalf of BMCX. This quotation records that the “NDIS contribution” for two main meals, breakfast and snacks per annum would be $12,535.60. BMCX informed the Tribunal at the hearing that she does not seek to rely upon this quotation and she relies, instead, on another quote for meal preparation and delivery services prepared by “Dineamic” dated 19 April 2023.[5] For this reason, the Tribunal has not accepted the Able Foods quotation into evidence in this proceeding and has accepted the Dineamic quotation into evidence.
[5] T-Documents, T7.
On 13 February 2025, BMCX also sought to tender video footage (comprising several videos) of traumatic incidents which she reported had occurred at her previous rooming housing accommodation provided by an incorporated association (which the Tribunal will refer to in this Statement of Reasons as ‘RH Inc’). As became apparent by the time of the hearing once VCAT orders relating to this accommodation had been lodged with the Tribunal, that the rooming house accommodation was not public housing as previously understood to be the case. The Tribunal’s decision in this matter will not be influenced by what has occurred at this previous rooming house accommodation. BMCX no longer resides at this premises. The Tribunal explained that the focus of its assessment, initially, will be whether BMCX meets the SDA eligibility criteria based on her assessed degree of functional incapacity and level of support needs. For these reasons, the Tribunal decided not to accept this video footage into evidence in this proceeding.
BMCX said that she has been unable to complete the task of reviewing the documents which were produced under summons by the Transport Accident Commission (‘TAC’) in respect of her TAC claims. BMCX said she has no one to assist her with this. She explained that it is upsetting for her to go through these documents. The NDIA has extracted what it considers to be documents relevant to the issues in this proceeding contained in the documents produced under summons by TAC and other medical records in respect of BMCX. They are contained in the NDIA’s Fourth HTB.
Submissions
The NDIA has lodged the following submissions with the Tribunal:
(a)on 15 February 2024, the NDIA’s Statement of Facts, Issues and Contentions (‘NDIA’s SFIC’);
(b)on 14 November 2024, the NDIA’s Supplementary Statement of Facts, Issues and Contentions (‘NDIA’s Supplementary SFIC’); and
(c)on 7 February 2025, the NDIA’s Further Supplementary Statement of Facts, Issues and Contentions (‘NDIA’s Further Supplementary SFIC’).
BMCX has lodged the following submissions with the Tribunal:
(a)submissions contained in an email from BMCX sent to the Registry of the Tribunal on 2 February 2024 (‘BMCX’s SFIC’);
(b)email from BMCX dated 4 April 2024 advising the Tribunal she was about to become homeless;
(c)various other emails from NCCP to the Registry of the Tribunal, as referred to in the Exhibit List.
Hearing
The substantive hearing of this matter was originally scheduled to take place on 2, 3 and 4 December 2024. On 2 December 2024, an application was received seeking an adjournment of the substantive hearing to a later date. After hearing submissions from both parties, the Tribunal considered it appropriate to adjourn the substantive hearing until February 2025, for the following reasons (in no particular order):
(a)the Tribunal considered it appropriate to consider all of the 13 supports requested by BMCX, instead of her previous request for SDA only. The Tribunal considered that this would address all of BMCX’s concerns and requests and once the Tribunal’s decision is made, that this would bring some finality to BMCX’s situation (subject to any appeal process), for the duration of any new SOPS approved for BMCX;
(b)the introduction of the new criterion under s 34(1)(aa) of the NDIS Act would require the Tribunal to consider whether each of the requested supports are necessary to address the needs of the BMCX arising from an impairment in relation to which she meets either the s 24 disability requirements or the s 25 early intervention requirements;
(c)the introduction of the amended criterion under s 34(1)(f) of the NDIS Act would require an examination of the new Transitional NDIS Supports Rules and whether some of the requested supports are “an NDIS support” as listed in Schedule 1 or “not an NDIS support” as listed in Schedule 2;
(d)the Tribunal considered it appropriate that the NDIA be given an opportunity to lodge a further updated SFIC addressing all of the 13 requested supports (and in particular, to address, substantively, the s 34(1) criteria and any relevant rules in respect of each of them, such as the new Transitional NDIS Supports Rules and SDA Rules);
(e)the Tribunal considered it appropriate that BMCX be given an opportunity to respond to the updated SFIC lodged by the NDIA;
(f)the Tribunal considered it appropriate that the parties be granted an opportunity to extract medical and allied health reports and records from documents produced under summons by the TAC, to fill various information gaps relevant to determining BMCX’s various impairments, her support needs arising from those impairments, and whether each of the criteria under s 34(1) of the NDIS Act are met in respect of each of the 13 requested supports; and
(g)the Tribunal considered it appropriate that BMCX be provided with a further opportunity to see if she could arrange for her treating OT from “Bloom Health” to complete a functional capacity assessment and OT report, in relation to the 13 requested supports.
The substantive hearing of this matter took place on 18, 19, 20 and 21 February 2025 inclusive. The following witnesses were called to give evidence at the hearing:
(a)BMCX; and
under summons to give evidence, as requested by the NDIA:
(b)Dr NS, BMCX’s current treating general practitioner; and
(c)Ms PF, BMCX’s former treating psychologist.
BACKGROUND
Family history and current living circumstances
BMCX is a 30-year-old transgender woman. BMCX does not have any dependants or a partner.
BMCX has reported a history of having lived with her father and sister previously. BMCX asserted that she was threatened by them daily and that they were the perpetrators of numerous instances of domestic verbal and physical abuse towards her. BMCX lodged a copy of Magistrates’ Court intervention orders with the Tribunal issued against her father and sister. BMCX has reported that she has no friends at all and has lost touch with her extended family and her mother.
After moving out of BMCX’s home, she moved into the rooming house operated by RH Inc referred to above, located in an inner suburb of Melbourne. BMCX has now moved out of this accommodation. One of the reasons BMCX said she had moved out of this accommodation was due to fears for her safety. BMCX said she had experienced significant conflict with other residents and staff at the rooming house. BMCX also held various other concerns about the suitability of this accommodation relating to the small size of her room (BMCX says there was a lack of space for storage, for to do her rehabilitation exercise or to set up a religious shrine), its position, and she was not satisfied with its amenities (specifically, the air-conditioning was not functioning and the property/accommodation lacked a lift, dishwasher, and a bathtub).
After BMCX left the rooming house, VCAT made an order requiring BMCX to vacate the premises and to pay the rooming house operator, RH Inc, a sum of money, described by VCAT as rent owing to RH Inc.
BMCX gave evidence at the substantive hearing that after moving out of the rooming house accommodation, for a while, she stayed at a friend’s home in Geelong and was sleeping on their couch. BMCX gave evidence that she is now staying in temporary accommodation, also in Geelong. When asked by the Tribunal whether she was staying in a specialist disability accommodation (‘SDA’) property, BMCX said she believed that it was such a property. She said she is required to pay rent for this accommodation. BMCX gave evidence that her current support coordinator had assisted her to find this property. BMCX said she would be moving out of this temporary accommodation in about two or three weeks’ time, and that it “smelt like urine”.
The Tribunal notes that two of the 13 requested supports listed in the s 53 Order included a request for funding for SDA and medium term accommodation.
At the hearing, BMCX gave evidence that she has been assisted by an organisation to prepare a recent new application for public housing, with the hope that she might be placed on the public housing register. BMCX was previously placed on this register but was subsequently removed from it. BMCX believes that she was removed from it, due to false statements made about her by the staff at RH Inc. There is no documentary evidence before the Tribunal to confirm this and ultimately nothing turns on it. Of note, BMCX lodged a letter with the Tribunal confirming that she was previously accepted and registered onto the public housing register. This gives the Tribunal confidence that BMCX is likely to be registered once again on the public housing register, once the relevant Department has processed her recently submitted new public housing application.
NDIS plan history, Internal Review Decision and AAT application for review
First SOPS
On 19 September 2022, a delegate of the CEO approved a one-year SOPS for BMCX (‘First SOPS’) which commenced on 30 August 2022. [6] This SOPS approved total funding of $56,101.97, including $31,448.08 for core supports, $1,783.50 for transport supports, $12,050.64 for capacity building therapeutic intervention inclusive of OT, psychology and “employment and public transport skill development assistance”, $9,334.00 for support coordination and $1,485.75 to establish plan management arrangements.
[6] T-Documents, T21.
Second SOPS
On 3 May 2023, a delegate of the CEO approved a one-year SOPS for BMCX (‘Second SOPS’).[7] This SOPS approved total funding of $57,782.59, including $34,190.04 for core supports, $1,784.00 for transport supports, $10,988.80 for capacity building therapeutic intervention (inclusive of OT, psychology and “employment and public transport skill development assistance”), $9,334.00 for support coordination and $1,485.75 to establish plan management arrangements.
[7] Ibid, T22.
Request for s 100 internal review
BMCX requested a review of this SOPS under s 100 of the NDIS Act, and requesting that additional funding be approved for:[8]
[8] Ibid, T1A/6.
(a)capacity building therapeutic intervention including:
(i)an unspecified number of hours of physiotherapy;
(ii)two hours of psychology;
(iii)one to three hours of speech pathology;
(iv)yoga;
(b)“consumables” in the sum of $1,500;
(c)meal preparation and delivery; and
(d)a laptop.
Internal Review Decision
On 4 July 2023, another delegate of the CEO made an internal review decision under s 100 of the NDIS Act confirming the earlier decision to approve the SOPS dated 3 May 2023 (‘Internal Review Decision’).[9] In this decision, among other things, the delegate noted that BMCX had met the access criteria in respect of “major depressive illness” and that some of the requested supports appeared to have been directed to BMCX’s physical impairments.
[9] T-Documents, T1A.
Application for review by the AAT/this Tribunal
On 31 July 2023, BMCX sought review of the Internal Review Decision by lodging an application for review with the AAT.[10]
[10] Ibid, T1.
On 14 October 2024, the AAT became the Administrative Review Tribunal (‘this Tribunal’) following the abolition of the AAT. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are to be continued and finalised by this Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by this Tribunal.
Neither party disputed the Tribunal’s authority to deal with the present application. Specifically, the Tribunal has authority to undertake this review under s 18 of the ART Act, operating in conjunction with s 103 of the NDIS Act.
Representation of the Parties
BMCX has been self-represented in this proceeding. When this application was first lodged with the AAT, BMCX was supported by her support coordinator at the time, Mr Anthony Gambrell, of Salt Foundation Inc. While this proceeding was on foot, Mr Gambrell ceased being BMCX’s support coordinator and ceased providing support to her in this proceeding.
The NDIA was legally represented by Sparke Helmore Lawyers and Mr Joshua Lessing of counsel.
Points of contention when Application for Review first made
In the AAT Application for Review of Decision form, Mr Gambrell, on behalf of BMCX, stated that the “strongest points of contention” related to the funding for meal preparation and delivery, psychology and to purchase a laptop.[11] It was stated that BMCX considered that her request for those supports were ignored, based on her needs, and that the evidence provided insights into her conditions, past and present, which impacted her ability to function. It was stated that the planner and support coordinator, at the time, had failed to address the links between “an accident” which BMCX had been involved in (that is, one of the motor vehicle accidents referred to above) and her current condition and impacts on BMCX.[12]
[11] T-Documents T1/4.
[12] Ibid.
Third SOPS
On 7 February 2024, a delegate of the CEO approved a one-year SOPS for BMCX (‘Third SOPS’).[13] This SOPS approved total funding of $60,111.63, including $35,864.68 for core supports (which according to the NDIA, included funding for five hours per week for assistance with ADLs and six hours per week for assistance with community, social and recreational activities), $1,784.00 for transport supports, $11,147.20 for capacity building therapeutic intervention inclusive of 28 hours per annum of OT,[14] 12 hours per annum of psychology,[15] and four hours per month of “employment and public transport skill development assistance”,[16] $9,830.00 for support coordination and $1,485.75 to establish plan management arrangements.
[13] NDIA HTB, pages 42-55.
[14] NDIA’s SFIC, [7].
[15] NDIA’s SFIC, [7].
[16] Ibid.
Fourth SOPS
On 15 March 2024, a delegate of the CEO approved a one-year SOPS for BMCX (‘Fourth SOPS’).[17] This SOPS approved total funding of $60,111.63, including $35,864.68 for core supports, $1,784.00 for transport supports, $14,148.94 for capacity building therapeutic intervention inclusive of OT, psychology and “employment and public transport skill development assistance”, $9,830.00 for support coordination and $1,485.75 to establish plan management arrangements.
[17] NDIA’s HTB, pages 56-69.
Fifth SOPS
On 2 August 2024, a delegate of the CEO approved a one-year SOPS for BMCX (‘Fifth SOPS’). This SOPS approved total funding of $64,500.92, including $36,163.56 for core supports ($14,879.88 for assistance with ADLs. $21,078.72 for assistance with social, economic and community participation and $204.96 for consumables including Continence and Home Enteral Nutrition and funding for AT (total budget of up to $200)), $1,784 for transport supports, $26,553.36 for capacity building therapeutic intervention inclusive of $5,431.72 for OT and $5,574.66 for psychology assistance, $3,696 to take part in skills-based learning to develop independent in accessing the community; $10,142.04 for support coordination and psychosocial recovery coach and $1,485.75 to establish plan management arrangements.
Current SOPS
On 16 January 2025, a delegate of the CEO approved a one-year SOPS for BMCX (‘Current SOPS’).[18] This SOPS approved total funding of $74,954.36, including:
[18] Lodged with the Tribunal on 17 February 2025.
(a)$36,163.56 for core supports comprising:
(i)$14,879.88 for assistance with ADLs; and
(ii)$21,078.72 for assistance with social, economic and community participation; and
(iii)$204.96 for consumables including Continence and Home Enteral Nutrition;
(b)funding for AT (total budget of up to $200));
(c)$1,784 for transport supports;
(d)$37,006.80 for capacity building therapeutic intervention inclusive of:
(i)an aggregate amount of $21,682.92 for OT and psychology assistance;
(ii)$3,696 to take part in skills-based learning to develop independent in accessing the community;
(e)$10,142.04 for support coordination and psychosocial recovery coach; and
(f)$1,485.75 to establish plan management arrangements.
Decisions Under Review
The decisions under review in this proceeding (‘Decisions Under Review’), include:
(a)the Internal Review Decision; and
(b)the four subsequent decisions to approve the:
(i)Third SOPS;
(ii)Fourth SOPS;
(iii)Fifth SOPS; and
(iv)Current SOPS.
BMCX’s current goals
In the Current SOPS, BMCX’s stated goals are as follows:[19]
[19] NDIA’s HTB, pages 61-63.
(a)short term goals:
(i)to find affordable accommodation that suits her physical requirements so that she can live independently;
(ii)to gain meaningful employment to her previous workplace level, as a project manager in IT, data archiving; and
(b)medium or long-term goals:
(i)to maintain her mental and physical health with the supports of a physiotherapist and psychologist;
(ii)to learn budgeting strategies and increase her assertiveness to reduce her risk of vulnerability and financial abuse;
(iii)to return to her study/s so that she can complete her qualification/s;
(iv)to learn the skills necessary to develop and maintain healthy romantic relationships appropriate for her life stage;
(v)to engage a lived experience peer support person to explore her gender identity in order to improve her self-image, mental health, and social wellness.
NDIS Home and Living Form
On 7 February 2024, BMCX was assisted by Mr Gambrell to complete the H&L Form. Mr Gambrell also signed this form. On the H&L Form, BMCX indicated as follows:
(a)she is experiencing family/domestic violence, family or relationship breakdown, and is not able to live with her immediate family;[20]
[20] H&L Form, page 2.
(b)she has issues in her current home which will need attention (at that time she was living in the rooming house accommodation);[21]
[21] H&L Form, page 3.
(c)she was living in community housing which is “large residential (more than 20 people)” (later described as a large apartment complex with small units with about 20+ residents) and “temporary/crisis accommodation”. BMCX described her unit as a “small bedsit unit”.[22] BMCX stated that her accommodation provider has refused to service her and she posed the question as to whether this organisation should be removed;[23]
[22] Ibid, page 6.
[23] Ibid, page 3 & 4.
(d)BMCX stated that her room was small for anyone to live in and it did not enable her to complete physiotherapy exercises to relieve her pain. She stated that the air-conditioner was leaking and not working and this had led to mould developing on her carpet. She said this had impacted on her respiratory health including her asthma. BMCX stated she fainted due to heat stroke on 4 February 2024, when it was 38 degrees and her air-conditioner was not working;[24]
[24] Ibid, page 8.
(e)BMCX stated she had lived in her current accommodation for about 12 months,[25] and had previously lived in the family home and in homeless shelters;[26]
[25] Ibid, page 6.
[26] Ibid, page 7.
(f)BMCX stated that her unit is a “stressful” and “uncomfortable living environment” and that it did not support her mental or physical health. She stated that it was a traumatising factor for her pain and depressive symptoms. She stated that this could be “cured” by “a suitable independent supported living place provided by the NDIA”;[27]
[27] Ibid, page 8.
(g)BMCX stated that she does not have a housing and support goal in her NDIS plan, however, her goal is to be provided with suitable long term housing by the NDIA which is suitable for her healthy requirements and to support her independent living. BMCX stated that she cannot do things, due to her nerve issues, and she referred to having “ergonomic and cleaning requirements”;[28]
[28] H&L Form, page 5.
(h)BMCX stated that she required:
(i)help with maintaining her current home environment (because she cannot clean due to nerve damage);
(ii)help with personal care and daily life tasks at home;
(iii)access to assistive technology (‘AT’) and equipment; and
(iv)help to find another home;[29]
(i)BMCX stated that the housing complex where she was living was unsafe and that she had been exposed to physical and verbal abuse. BMCX stated that she had been “spat out, shoved, punched, and called names”. BMCX stated that the house was not sufficient for her current injury of back pain and nerve damage. She stated there were no lifts, making it infeasible for to carry groceries because it exacerbated her pain. BMCX stated that there was a communal laundry and her clothes and lingerie had been stolen and at times, ripped up. She stated that this was systematic and repetitive since she had moved in and had resulted in her incurring costs and caused trauma to her mental health;[30]
(j)BMCX stated that “staff” have entered her room illegally, without consent, to view her naked and that they had stalked her using security cameras to know when she was home, so that they could “isolate her”. BMCX stated that “staff” had refused to cooperate with her requests to Police for her safety;
(k)BMCX stated that her neighbours had been through her rubbish and that one of them had stalked her on social media. She stated that this resident wanted to date her and they had refused to take “no” for an answer;[31]
(l)BMCX stated that it was “most important” for her to be able to live in a larger house or if it is an apartment, a lift would be required to access the apartment. BMCX stated that living on the ground floor meant that everyone could see her and she is “exposed like a goldfish [bowl]” and she could not open the blinds/curtains. BMCX stated that this had made it troublesome for her to live in a ground level of apartment buildings. BMCX requested a split system air-conditioner and accommodation “somewhere safe and open to rehabilitate physically and to feel safe from stressors”;[32]
(m)BMCX stated that she required enough space to include a “religious shrine/altar” in her room, as she did not currently have room for this. She stated that this would “help her psychological and spiritual/religious health”;[33]
(n)BMCX stated that moving accommodation would assist her capacity to engage socially, to find employment and would assist “in the healing of her trauma”. She stated that the longer she stayed in the rooming house accommodation, the longer the length of her healing would be, and that she would require psychologists. BMCX stated that moving would assist with her respiratory health including her asthma.[34]
MEDICAL HISTORY
[29] Ibid, page 6.
[30] Ibid, page 8.
[31] Ibid, page 8.
[32] H&L Form, page 9.
[33] Ibid.
[34] Ibid.
Assessment by Clinical Neuropsychologist – January 2023
On 24 January 2023, BMCX was assessed by Dr FE, Clinical Neuropsychologist. Dr FE issued a report dated 6 February 2023 (‘Dr FE’s Report’).[35] The stated purpose of the assessment was to characterise BMCX’s cognitive functioning and to provide recommendations for supports she may require.
[35] T-Documents, T3.
In Dr FE’s Report, she summarised relevant background information derived from a number of sources as follows:[36]
[36] Ibid, T3/34.
(a)BMCX has a history of MDD and “gender dysphoria”;
(b)BMCX was diagnosed with:
(i)dyslexia (at the Royal Children’s Hospital at the age of six);
(ii)ADHD and that she will typically take dexamphetamine. Dr FE noted lapses in attention when assessing BMCX;[37] and
(iii)a learning disorder;[38]
(c)BMCX was involved in a car accident eight years earlier and had experienced “ongoing nerve pain” as a result of the accident;
(d)BMCX has a complex psychosocial history and had experienced multiple traumatic events dating back to her childhood (with an allegation that she is the victim of family violence). BMCX was reportedly bullied at high school and moved to three different schools;
(e)BMCX commenced a degree in political science and did not complete it;
(f)BMCX had worked in a number of different jobs, including in retail and information technology. BMCX last worked before the COVID-19 pandemic and is currently in receipt of the disability support pension (‘DSP’).
[37] T-Documents, T3/35.
[38] Ibid, T3/36.
Dr FE administered a number of tests on BMCX and made the following observations in Dr FE’s Report:
(a)BMCX experienced some “mild memory retrieval difficulties” on some tasks, with prompts and cues assisting her recall;
(b)BMCX experienced difficulty on tasks which measured her reading and spelling abilities: noting BMCX’s ability to read a single word was at the Grade 8 level and her spelling was at the Grade 9 level;[39]
(c)there was no evidence of a disturbance in BMCX’s executive functioning and her abstract reasoning abilities were within normal limits for her age. Dr FE did not detect any evidence of impulsivity in BMCX’s behaviour on testing;
(d)based on self-reporting of psychological symptoms, BMCX’s symptoms of depression and anxiety fell within the “Extremely Severe” range and her symptoms of “Stress” fell within the “Mild” range; and
(e)BMCX’s adaptive functioning was rated as “very low”.
[39] Ibid, T3/36.
In Dr FE’s Report, she concluded that BMCX’s “cognitive and functional difficulties are occurring in the context of significant mental health difficulties, ongoing psychosocial stressors, and their history of complex trauma.”[40]
[40] T-Documents, T3/36.
In Dr FE’s Report, she recommended that:[41]
(a)BMCX receive an intensive level of ongoing psychological support to manage her mental health difficulties and that she would also benefit from input from a psychiatrist. Dr FE stated this type of intervention for BMCX is “essential”;[42]
(b)BMCX engage with a “mental health” OT to assist her to develop routines to improve her day-to-day functioning;
(c)BMCX’s treating clinicians should be specialised in working the individuals who have experienced trauma;
(d)BMCX receive assistance from support workers and service providers who can build rapport with BMCX over time; and
(e)BMCX be provided with an intensive level of ongoing formal supports.
[41] Ibid, T3/37.
[42] Ibid.
Assessment by Physiotherapist – February 2023
As from 15 February 2023, BMCX is reported to have engaged with Mr SA, Physiotherapist, for the purposes of an assessment, to receive recommendations about her disability specific needs, and to gather information for a “change of circumstances report”.
Mr SA issued an “NDIS Initial Assessment Report” dated 20 March 2023 (‘Mr SA’s Report’).[43] In Mr SA’s Report, he stated that BMCX has a history of the following conditions:[44]
(a)MDD;
(b)dyslexia;
(c)chronic secondary pain;
(d)ADHD; and
(e)past childhood traumatic experiences.
[43] T-Documents, T5.
[44] Ibid.
BMCX’s regular medication was recorded in Mr SA’s Report as including “simple analgesics” and “dexamphetamine” and that she does not have any informal supports.[45] Mr SA stated that BMCX has a multidisciplinary medical team (including general practitioners, Dr NS and Dr IT; Dr JE, Consultant Psychiatrist; Dr FE and Mr SA) and a support coordinator. At that time, Mr SA stated that BMCX had not commenced any formal supports.[46]
[45] Ibid.
[46] Ibid.
Mr SA stated that BMCX had reported that due to the motor vehicle accident, she has been unable to lift objects, vacuum, or stand for long periods. Dr SA reported that BMCX said she was socially isolated and unable to engage in the community due to a lack of funds. Mr SA stated that BMCX had expressed a desire to engage with various supports and therapies which would help her to “heal from past trauma” and to “develop a stronger sense of self”.[47]
[47] T-Documents, T5.
Mr SA carried out the following musculoskeletal assessments of BMCX:
(a)an assessment of BMCX’s posture, with the stated result as being “objectively within normal limits”;
(b)an assessment of BMCX’s strength using manual muscle testing, with the stated result as being “objectively within normal limits”; and
(c)an assessment of BMCX’s range of motion, with the stated result as being “objectively within normal limits”.
Mr SA carried out the following neurological assessments of BMCX and concluded that she was “objectively within normal functional limits, except for a large region on the right hand side of his face which has impaired sensation as a consequence of injury sustained during a motor vehicle accident.”[48]
[48] Ibid.
Mr SA carried out a range of pain assessments on BMCX. The presenting condition was described by Mr SA as follows:[49]
[BMCX] experiences widespread pain in every major body region. [She] reports the right shoulder, the right para-spinal region, the right hip, and right leg are particularly painful. In general, [she] feels chronic tightness, pressure, numbness, burning, and pins and needles in these areas. These symptoms are constant, with significant fluctuations throughout the day. [She] has difficulty managing these fluctuations, especially major flare ups which cause [her] to retreat to the bedroom until [she] is comfortable again. There is a major effect on [her] daily functions and activities, particularly concentration, energy, social participation, meal preparation, and physical activity.
[49] Ibid.
Mr SA administered the Pain Catastrophising Scale (‘PCS’) test on BMCX which he described as a “valid and reliable measure of how people experience pain”. Mr SA reported that BMCX scored 34 out of 52 for this test, which he stated is confirmation of “pain-related catastrophising”.[50] Mr SA stated that other test results of BMCX revealed that she has a “fear of movement” beliefs which may be limiting her mobility (specifically, BMCX scored 41 out of 68 on the Tampa Scale of Kinesiophobia test), providing confirmation of “pain-related kinesiophobia”. Mr SA stated that BMCX underwent the Pain Detect test, which he described as a valid and reliable self-report questionnaire developed to discriminate between nociceptive and neuropathic pain. Ms SA stated that BMCX’s pain is likely caused by lesion or disease of the central nervous system resulting in neuropathic mechanisms.[51]
[50] T-Documents, T5.
[51] Ibid.
Mr SA undertook a “mobility assessment” of BMCX and concluded as follows:[52]
[BMCX] is capable of achieving [her] functional mobility needs. [She] is currently independently walking without any aids or assistance. However, BMCX reports that because [she] is completely reliant on public transport or walking, from being socially and economically isolated, [her] feet are increasingly painful. Therefore, [she] requires support from a podiatrist to maintain the appropriate levels of structural and functional support in his footwear. Without this support, [BMCX] would suffer from further isolation and impairment.
[52] Ibid.
Mr SA records the activities which BMCX had identified that she could not complete and the type of assistance required as follows:[53]
• Mobility: [BMCX] is struggling with [her] mobility due to chronic widespread pain (particularly in the feet), fatigue, and lack of alternative options such as public transport, taxi, or similar pain services.
• Communication: [BMCX] has difficulty expressing [her]self when his pain is flared up
• Socialising: [BMCX] is unable to socialise when [her] pain is severe
• Life-activities: [BMCX] has extreme difficulty with meal preparations when [her] conditions are flared up, [she] needs support in this domain with assistance from others and pre-prepared meals
• Self-management: [BMCX] struggles to maintain positive self-management practices due to [her] complex psychosocial impairments and disability
[53] Ibid.
Mr SA provided an opinion that BMCX meets the “NDIS disability requirements” and he also states that she has additional diagnoses of:
(a)“Chronic Primary Musculoskeletal Pain (CPMP)”. Mr SA describes that as “chronic pain in the muscles, bones, joints or tendons that is characterised by significant functional disability (interference in daily live activities and reduced participation in social roles).”[54] Mr SA described this type of pain as “multifactorial: biological, psychological, and social factors contribute to the pain syndrome”;[55]
(b)“Chronic Secondary Neuropathic Pain (CSNP)”. Mr SA described that is “chronic pain caused by a lesion or disease of the somatosensory nervous system. The pain may be spontaneous or evoked, as an increased response to a painful stimulus (hyperalgesia) or a painful response to a normally nonpainful stimulus (allodynia). The diagnosis of chronic neuropathic pain requires a history of nervous system injury or disease and a neuroanatomically plausible distribution of the pain.”[56]
[54] T-Documents, T5.
[55] Ibid.
[56] Ibid.
Mr SA referred to BMCX having “many mental health diagnoses” and that her traumatic experiences contributed to “[her] altered neurological functions”. Mr SA stated:[57]
Nociplastic pain is a major contributor to the global burden of disability, and this is especially clear in [BMCX’s ] circumstances. Second, [her] chronic neuropathic pain, while caused by a past accident, is still causing him severe functional limitations. The injury has led to several activity limitations, particularly around [her] personal activities of daily living, such as cooking and meal preparation.
[57] Ibid.
Mr SA stated that BMCX “must be considered for further specialised supports to ensure [she] is adequately supported to self-manage these conditions and reduce their impact on [her] social and economic opportunities”.[58]
[58] Ibid.
Mr SA recommended that following supports for BMCX:[59]
[59] Ibid.
(a)pain management program comprising:
(i)12 weeks of a physiotherapy-lead multidisciplinary pain management program;
(ii)six months of post-program support to ensure maximal retention and engagement with the lessons learnt;
(b)12 months of funded memberships to BMCX’s preferred physical activity program;
(c)OT;
(d)psychology;
(e)exercise physiology;
(f)support worker assistance;
(g)support coordination;
(h)travel allowance. Mr SA states that BMCX’s ability to drive is limited;
(i)dietetics, to build capacity to make healthy meal choices to improve his pain and mental health conditions.
Consultation at university osteopathic clinic – March 2023
On 9 February 2023, a university osteopathic clinic (‘Osteo Clinic’) issued a letter dated 9 February 2023 in respect of BMCX.[60] The Osteo Clinic stated in the letter that BMCX had attended a consultation on 16 March 2023 (which may be a typographical error, as this date post-dates the date of the letter).
[60] T-Documents T4.
The Osteo Clinic reported in this letter as follows:
(a)BMCX has been diagnosed with “chronic non-specific neck pain due to a motor vehicle accident (MVA) he suffered 15+ years ago.”[61]
(b)BMCX has “long lasting pain”, “blindness” and “loss of sensation over” the “right side of [her] face with associated loss of vision in the right eye”;
(c)BMCX has been having high levels of pain and has struggled to complete ADLs;
(d)BMCX also suffers from various mental health disorders;
(e)BMCX has “demonstrated allodynia” and “diminished sensation across various regionals during consultations including in the feet”;
(f)BMCX had reported that pain limits her ability to engage in ADLs, including walking and her exercise regime;
(g)BMCX’s lower limb pain “appears to be predisposed and maintained by biomechanical factors including reduced plantar and transverse arches bilaterally which result in compensatory movements during gait cycle.” This is reported to cause pain and discomfort and impacts her mental health.
[61] Ibid, T4/38.
Dr NS
On 20 April 2023, Dr NS issued a letter in relation to BMCX. Dr NS is from a gender diverse health centre.[62] Dr NS reports that BMCX has “chronic pain which manifests as physical pain experienced on a continual basis”. Dr NS opines that the origin of BMCX’s pain is largely due to protracted and severe trauma that she has experienced throughout much of her life. Dr NS states that “the pain is no doubt physical and real”.[63]
[62] T-Documents, T9/51 & 52.
[63] Ibid.
Dr NS referred to Mr SA’s report and noted that BMCX “scored high”. Dr NS also noted that “a score aimed at differentiating organic pain due to brain injury, an organic brain injury as a cause of at least part of the pain is confirmed”. He stated that that a further contributor of BMCX’s pain “would be” the motor vehicle accident that occurred in 2015.[64]
[64] Ibid.
Dr NS stated that BMCX has “chronic bilateral foot pain” which is “long standing” and not “amenable to curative therapy”. He stated that the diagnosis for this is “increased muscle tension linked to cerebral palsy”. When Dr NS gave evidence at the hearing, he retracted this opinion after agreeing to a proposition put to him that there was no objective medical evidence, such as a radiology report, which confirmed that BMCX had cerebral palsy. Dr NS said he wanted to strike out his opinion in this regard from his previous written report. Referring again to Mr SA’s report, Dr NS stated that the provision of long term podiatry would allow this foot condition to stabilise and to optimise BMCX’s function.[65]
[65] T-Documents, T9/51 & 52.
Dr NS stated that BMCX has “chronic neck pain, likely arising from the cerebral changes mentioned above”.[66] The Tribunal notes there is no evidence of BMCX having cerebral changes and as mentioned above, Dr NS accepted this during cross-examination during the hearing.
[66] Ibid.
Dr NS stated that NCPQ’s “physical and mental disabilities are chronic and pervasive and not amenable to cure”. He stated that those conditions arose from “protracted trauma experience in childhood and subsequently” and that they could not be cured. He opined that for BMCX, the “best prospects for maintaining function and a reasonable life will arise from provision of physical and psychological support, as well as support of adequate nutrition and a safe and secure living environment”.[67]
[67] Ibid.
Ms PF, Registered Psychologist – June 2023
In about June 2023, Ms PF issued a report about BMCX (‘Ms PF’s Report’).[68] Ms PF is a registered psychologist. Ms PF stated that she started seeing BMCX on 27 February 2023 and she recommended that funding for her psychological services be increased for weekly sessions. Ms PF said BMCX had “self-referred” to seek psychological support in relation to his conditions of MDD, explore “[her] Gender Dysphoria”, ADD and to manage the impact of her trauma. At that time, Ms PF stated that BMCX had continued to liaise with her psychiatrist and physiotherapist.
[68] Ibid, T17/75-79.
In Ms PF’s Report, she stated that BMCX had presented with symptoms of autism spectrum disorder (‘ASD’) and that this should be further assessed and targeted with tailored intervention. Ms PF stated that BMCX required repetition and consistency for learning.[69]
[69] T-Documents, T17/75.
Ms PF stated she had focussed on “learning healthy patterns of thinking, regulating emotions and displaying healthy behaviours” with BMCX and also how to enhance her language and interpersonal skills to enable healthier interactions with others around her.[70]
[70] Ibid, T17/75.
Ms PF stated that BMCX would benefit from trauma focused interventions including trauma focussed cognitive behavioural therapy (‘TF-CBT’). Ms PF opines that BMCX’s mood and function is impacted by “past trauma” which has included “physical, emotional and sexual abuse”.[71]
[71] Ibid, T17/76.
BMCX has taken strong objection to Ms PF’s opinion that she may have the condition of ASD. BMCX said she disagrees with Ms PF’s opinion in this regard.
Ms PF recommended that BMCX have weekly psychology sessions for 12 months and with progress and review, they could be “spaced out”. Ms PF opined that BMCX is likely to require regular psychological input for her lifetime.[72] Ms PF recommended that BMCX be funded for a total of 60 hours per annum for psychological services.[73]
[72] Ibid, T17/ 77.
[73] Ibid, T17/79.
Ms PF stated that the inclusion of meal preparation and delivery for BMCX “would be appreciated”, due to BMCX’s limited capacity because of her nerve damage, which she stated would cause pain and distress to BMCX throughout the day. The Tribunal notes there is no objective evidence before it of any physiological damage having been sustained to BMCX’s nerves. The available MRI reports do not reveal any abnormalities in BMCX’s nerves. Further, the Tribunal does not consider that as a psychologist, Ms PF has the necessary medical or clinical expertise to provide a medical opinion or diagnosis as to whether BMCX has sustained and still has any “nerve damage”.
In Ms PF’s Report, Ms PF opines that BMCX’s current funding for six hours of support worker assistance for social, community and civic participation is “insufficient to meet [her] needs”[74] and she made a request, on behalf of BMCX, to increase it to 10 hours per week. Ms PF sets out in her report that this would include four hours per week to support BMCX to attend appointments, two hours per week to assist her with shopping and groceries, seven hours to attend groups, one hour for meal preparation to prompt BMCX to initiate meal preparation tasks and to complete basic breakfast skills.[75]
[74] T-Documents, T17/79.
[75] The Tribunal notes these figures do not add up to 10.
Ms PF also requests, on behalf of BMCX, 10 hours per week of support worker assistance for self-care activities, comprising two hours for daily routine/structure, one hour for meal preparation and cooking, one hour for assistance with organising and putting laundry away, three hours to support the regulation of emotions and promote mental health strategies and two hours for the prompting of self-care and assistance with dressing by choosing clothing.[76]
[76] T-Documents, T17/78. The Tribunal notes these figures add up to 9, not 10.
Ms PF supported BMCX’s request for a laptop because she stated in her report that it would assist BMCX to seek employment and to access telehealth services with her healthcare providers, especially when her pain levels were high.[77]
[77] Ibid, T17.
Ms AD, Care Squared, Occupational Therapy – June/July 2023
On 16 June 2023, Ms AD, OT, from Care Squared, undertook a functional capacity assessment of BMCX and she issued a report on 10 July 2023 (‘Ms AD’s Report’).[78] This assessment took place in BMCX’s home.
[78] NDIA’s Fourth HTB, pages 1 to 17.
The Tribunal concludes that four hours of psychiatry services per annum for BMCX (as a “stated support”) meets all of the mandatory criterion under the NDIS Act, is a “reasonable and necessary support” under s 34(1) of the NDIS Act, and is to be included in BMCX’s SOPS.
Endocrinologist (one two-hourly session per fortnight)
The NDIA contends that its understanding is that BMCX has requested funding to see an endocrinologist for two hours once a fortnight, as a result of her claimed impairments relating to gender dysphoria, specifically, that she has reached the maximum dosage of hormone replacement therapy without engagement with an endocrinologist (see BMCX’s email dated 2 February 2024).[111]
[111] NDIA’s Further Supplementary SFIC, [2.2(h)].
There was no evidence before the Tribunal from an endocrinologist recommending review of BMCX and outlining what the purpose of any such would be. The NDIA contends that it is difficult to see how these sessions could fall into Schedule 1 of the Transitional NDIS Support Rules. The Tribunal notes that item 12 of Schedule 2 includes a category of “Health” supports, which are described as including the clinical treatment of health conditions including ongoing or chronic health conditions (see subparagraph (a) in Column 3). The Tribunal notes there is simply no objective medical evidence before it from an endocrinologist, or any other doctor upon which the Tribunal could make a finding or reach a conclusion about the proposed purpose of these sessions with the endocrinologist, and whether this support would meet the mandatory criteria under s 34(1)(f). At the hearing, Dr NS was asked to comment about this requested support. His response what that he is not aware that BMCX has seen an endocrinologist. Dr NS’s evidence was that the question of whether BMCX required sessions with such a specialist would depend on the assessment of an endocrinologist. BMCX has not been assessed by such a specialist. The Tribunal is unable to conclude the s 34(1)(f) has been met.
For this reason, the Tribunal is not satisfied that funding for sessions with an endocrinologist is not a “reasonable and necessary support” under s 34(1) of the NDIS Act.
BMCX is at liberty to request this support at a later point in time (for instance, at her next plan review meeting), should she subsequently obtain further medical or clinical evidence about the need for her to see an endocrinologist and what the purpose of such visits would be.
Replacement of funding for capacity building intervention
By way of clarification, the funding to be included in BMCX’s next SOPS when implementing this decision by including funding for 45 hours per annum of OT services (as a “stated support”), 60 hours per annum of psychology services (as a “stated support”), and four hours per annum for four sessions with a psychiatrist, is to replace the approved aggregate sum of funding for capacity building therapeutic intervention of $37,006.80 in her Current SOPS.
Electrolysis services for hair removal (2-3 hours per week)
The NDIA contends that its understanding is that BMCX is requested funding for electrolysis services as a result of her claimed impairments relating to gender dysphoria.[112]
[112] NDIA’s Further Supplementary SFIC, [2.2(i)].
In respect of s 34(1)(f) of the NDIS Act, the Tribunal notes that item 5 of the table in Schedule 2 to the Transitional Supports Rules provides that day-to-day living costs for “clothing and beauty” including the following supports, are “not an NDIS support” for the purpose of s 10(6) of the NDIS Act (emphasis added):
The following:
…
(b) makeup, cosmetic treatments, cosmetics, and cosmetic accessories;
…
(d) hair treatments, cutting, dying, styling, extensions, threading, weaving, hair replacements and transplants and wigs;
BMCX gave evidence at the hearing that she has requested electrolysis services requested to remove hair from her face and genitalia because he says that he finds it difficult to shave and because he suffers from bad acne and so this treatment is to prevent any skin irritations. The Tribunal concludes that BMCX’s request for electrolysis services for hair removal for this purpose would fall under the description of a “cosmetic treatment” and/or a “hair treatment” which is declared under items 5(b) and/or 5(d) of the category of supports under item 5 (“Day-to-day – clothing and beauty”) of Schedule 2 of the Transitional Supports Rules as “not an NDIS support”.
For this reason, the Tribunal concludes that this support does not meet the mandatory criterion under s 34(1)(f) of the NDIS Act of being “an NDIS support” for BMCX.
In relation to BMCX’s claim that he has difficulty shaving, this difficulty arises from BMCX’s physical, neurological, and sensory impairments. For this reason, even if the Tribunal is wrong about its conclusion that this support is “not an NDIS support”, the Tribunal concludes that s 34(1)(aa) is not met because it is not necessary to meet needs arising from BMCX’s NDIS Impairments. At best, it might meet a need based on his other physical, neurological, or sensory impairments, in relation to which BMCX does not meet either s 24 or s 25 of the NDIS Act.
The Tribunal has concluded that this support does not met the mandatory criterion under s 34(1)(f), nor does it meet the mandatory requirement under s 34(1)(aa). It is not necessary for the Tribunal to consider the remaining mandatory criteria under s 34(1) of the NDIS Act. The Tribunal concludes that the requested electrolysis services are not a “reasonable and necessary support” under s 34(1) of the NDIS Act.
CONCLUSION
The Tribunal sets aside the Decisions under Review and remits this matter for reconsideration by the NDIA with a direction that it facilitates the approval of a new statement of participant supports (‘SOPS’) for BMCX, which contains the following:
(a)provisions approving NDIS funding for:
(i)an additional four hours of support worker assistance per week to assist BMCX to undertake activities of daily living;
(ii)(as a “stated support”) 46 hours per annum of occupational therapy services, which includes six hours per annum to prepare detailed progress reports for submission to the NDIA at six-monthly intervals;
(iii)(as a “stated support”) 60 hours per annum for psychology services for the purpose of undertaking therapy which will build BMCX’s functional capacity, which includes eight hours per annum to prepare detailed progress reports for submission to the NDIA at six-monthly intervals;
(iv)(as a “stated support”) four hours per annum for quarterly review by a psychiatrist for the purpose of advising BMCX about the prescription of medication for her condition of inattentive ADHD to improve her functional capacity; and
(v)replication, on a pro rata basis, of all other supports in BMCX’s current SOPS, except for funding for capacity building supports which is to be wholly replaced by funding for the supports referred to in sub-paragraphs (a)(ii), (iii) and (iv) above, and except for any one-off supports already expended by or on behalf of BMCX;
(b)a provision specifying that the reassessment date will fall on the 12 month anniversary of the date of approval of the new SOPS for BMCX in accordance with this direction; and
(c)provisions specifying that the plan management specifications in the new SOPS are to remain the same as specified in the old SOPS.
Dates of hearing: 18, 19, 20 and 21 February 2025 Advocate for the Applicant: Self-represented Counsel for the Respondent: Mr Joshua Lessing Solicitors for the Respondent: Sparke Helmore Lawyers
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