Boicovitis and National Disability Insurance Agency
[2022] AATA 204
•9 February 2022
Boicovitis and National Disability Insurance Agency [2022] AATA 204 (9 February 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2021/4577
Re:Anna Boicovitis
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:R Cameron, Senior Member
Date:9 February 2022
Place:Melbourne
The reviewable decision is set aside and in substitution a decision made that the applicant is entitled to Specialist Disability Accommodation funding for:
(a)Design category: high physical support including overnight assistance;
(b)Building type: apartment, single occupancy; and
(c)Location: VIC - Melbourne – Inner.
......[sgd]..................................................................
R Cameron, Senior Member
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – should the applicant receive funding for a single occupancy apartment – preference is to live alone - severe impairment - high physical support needs – same right to realising potential as other members of the community – same rights as others to respect their worth, dignity, and right to live free from abuse and neglect – same right to determine their own best interest – age and capabilities - social interaction – broader community values – decision set aside and substituted
Legislation
National Disability Insurance Scheme Act (Cth) 2013
Cases
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Pavilupillai v National Disability Insurance Agency [2018] AATA 4641
Secondary Materials
Convention on the Rights of Persons with Disabilities, opened for signature on 30 March 2007, 2515 UNTS 3 (entered into force on 13 December 2006)
National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020National Disability Insurance Scheme (Supports for Participants) Rules 2013
REASONS FOR DECISION
R Cameron, Senior Member
9 February 2022
INTRODUCTION
The applicant seeks review of a decision made on 22 June 2021,[1] which affirmed a previous decision contained in a National Disability Insurance Scheme (“NDIS”) plan approving the applicant for, amongst other things, Specialist Disability Accommodation[2] (“SDA”) (“the reviewable decision”).
[1] Document T13 of the T documents at page 83.
[2] The reviewable decision is document T2 of the T documents.
The NDIS plan approved SDA as follows:
(a)Design category: high physical support;
(b)Building type: apartment, 2 bedrooms, 2 residents;
(c)Location: VIC - Melbourne – West;
(d)Maximum per year funding: $50,101.92.
The parties agree that the location be changed from “Melbourne – West” to “Melbourne - Inner”.
ISSUE BEFORE THE TRIBUNAL
The sole issue remaining in dispute is whether the applicant should receive SDA funding for a single occupancy apartment.
THE EVIDENCE BEFORE THE TRIBUNAL
There was both oral and documentary evidence before the Tribunal.
The following witnesses gave oral evidence:
(a)The applicant;
(b)Ms Galvin, an occupational therapist; and
(c)Mr Angel, an occupational therapist.
The T documents were in evidence which included Ms Galvin’s report of 4 December 2020. A tender bundle was in evidence from the applicant. A report from Mr Angel dated 29 October 2021 was also tendered.
BACKGROUND FACTS
The applicant suffers from Muscular dystrophy and Fazio-Londe Syndrome with progressive bulbar palsy. Both the occupational therapists who gave evidence before the Tribunal, Ms Galvin and Mr Angel, agree that she suffers severe impairment.[3] The conditions are progressive, and her motor skills and capacity will continue to decline.
[3] Part 5 Functional Capacity of Ms Galvin’s report and pages 3 to 6 "Participant Background’ and question 1 on current functional capacity of Mr Angel’s report are referred to. They need not be reproduced for the purposes of these reasons, but reached similar conclusions as to the state of the applicant's impairment.
Currently, the applicant resides in the family home with her elderly mother. It is not in controversy that the relationship with her mother has deteriorated in recent years. There was evidence before the Tribunal that her mother has been verbally abusive towards her, abusive towards her support workers and carers and on occasion has refused to let them in the house. Her mother has at times switched off the applicant’s reclining electric bed at night so the applicant cannot lift the bed up and does not permit her using her wheelchair within the home. The applicant has described conditions associated with living with her mother as traumatic.[4] It is quite apparent that there is a pressing and immediate need for the applicant to leave the home. Indeed, Ms Galvin, who the Tribunal found to be an impressive witness, stated that there was a serious and pressing risk to the applicant when she conducted her assessment over 12 months before in November of 2020. The Tribunal accepts the applicant’s evidence concerning these matters and did not consider it to be in controversy.
[4] In opening submissions to the Tribunal counsel for the applicant submitted that she had been experiencing what amounted to domestic violence. She was unable to access crisis accommodation due to her disability.
THE PARTIES’ CONTENTIONS
The applicant emphasises the fact that the existing plan would require her to share her home with a stranger. Her preference is to live alone. She points to the likelihood that if she were to share an apartment with another individual that person is more likely than not to also be disabled to a level similar to her. This would almost inevitably, in her contention, lead to a particularly crowded living environment in which much of the equipment and aids that they would both have, such as the electric wheelchair, manual wheelchair, walking frame, medical supplies, ventilator, Percutaneous Endoscopic Gastrostomy equipment (“PEG”) and the like would be difficult to physically accommodate in the confined space offered by an apartment.
It is said by the applicant that to require her to share a residence with a stranger would also run contrary to several of the objects articulated in section 3 of the National Disability Insurance Scheme Act (Cth) (“the Act”). Specifically, the objects concerned are as follows:
(a)Choice and control for participants;
(b)High quality and innovative support; and
(c)Protecting and preventing people from experiencing harm.
Reference is also made by the applicant to the general principles guiding actions under the Act found in section 4, which of course guide the Tribunal as decision-maker. Those principles relied upon by the applicant include:
(a)People with disability having the same rights to realising their potential for development as other members of the community;
(b)People with disability having the same rights as others to respect their worth, dignity, and right to live free from abuse and neglect;
(c)Those with a disability having the same rights as others in the community to determine their own best interests; and
(d)Respect for the privacy and dignity of people with a disability.
It is contended by the applicant that the proposed arrangement prevents her having any choice or control over who could access her living room, kitchen and bathroom. The applicant also contends that sharing a home with a stranger at the age of 56 does not in any way respect the right of privacy and dignity, nor ensure her safety and freedom from potential abuse and neglect. She highlighted in her evidence by way of example that she requires a ventilator at night and that if the ventilator was deliberately or accidentally switched off by her co-resident it would have significant consequences for her.
The applicant also contends that the proposed arrangement would not achieve the same outcome at a substantially lower cost as suggested by the respondent.
The applicant also contends that in undertaking a consideration of this matter effect should be given to Australia’s obligations under the Convention on the Rights of Persons with Disabilities (“the Convention”). In particular, she highlights the provisions of Article 19 of the Convention which provides, amongst other things, that “persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement”. Reference was also made to the Explanatory Statement accompanying the SDA Rules which incorporates similar language to that found in the Convention. The Explanatory Statement also contained a reference to safeguards being included to “limit the possibility of NDIS funding arrangements that include overcrowding, participants being forced into arrangements that are not their genuine choice, and any other risks to the participant and their family”.
The respondent on the other hand contends that the accommodation sought by the applicant does not represent value for money within the meaning of section 34(1)(c) of the Act.
The provisions of rule 3.1(a) of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (“the Support Rules”) are relied upon by the respondent to contend that there are comparable supports which could achieve the same outcome at a substantially lower cost.
Firstly, the respondent argues that this can be achieved by a two-bedroom dual occupancy. In support of this contention, it relies upon the report of Mr Angel dated 20 October 2021 and the evidence he gave to the Tribunal. In that report, and confirmed by his evidence in the witness box, he expressed the opinion that the applicant has the capacity to live with others with minimal to no risk. He also opined that there are no functional limitations associated with the applicant’s capacity to live with others.
The respondent contends that such an outcome can be achieved by the option of a single occupancy existing stock of villa, duplex townhouse high physical support with on-site overnight assistance (“OOA”).
Another limb of opposition raised by the respondent is under rule 3.1(b) of the Support Rules. In short it contends that there is no evidence before the Tribunal that the support requested, namely a single occupant apartment, would substantially improve the life stage outcomes for, and be of long-term benefit to the applicant. Once again it relied upon the report of Mr Angel in support of this contention.
Another contention relied on by the respondent is founded on the provisions of rule 3.1(c) of the Support Rules; that is, that the funding or provision of the requested SDA is not likely to reduce the cost of funding supports for the applicant in the long-term. It notes that there is no evidence to establish that the funding of a single occupancy SDA will reduce the cost of funding supports for the applicant in the long term. In support of this contention, it again relies upon the report of Mr Angel who opined that the funding or provisions of the requested SDA were not likely to reduce the cost of funding supports for the applicant in the long-term.
The respondent also relies upon rule 3.1(f) of the Support Rules to contend that the requested support will not reduce the applicant’s need for other kinds of supports.
As for the applicant’s contention that the Tribunal should give effect to the provisions of the Convention, the respondent acknowledges that Australia has ratified the Convention. However, it contends that it would be contrary to the principles of established authority and proper statutory construction to read into section 34 of the Act the requirement that its words must be incorporated with the words and principles drawn from Article 19 of the Convention.
CONSIDERATION
The Applicant’s Preferences
It is useful to commence this analysis by a consideration of the applicant’s preferences which are articulated in her goals outlined in both her NDIS plan,[5] and a Housing Statement prepared for an SDA panel.[6] Section 16(a) of the SDA Rules, titled SDA building type,[7] requires a decision-maker to have regard to the eligible participant’s preference, if the preference can be established and it aligns with the eligible participant statement of goals and aspirations.
[5] Her goals contained in the NDIS plan are found at pages 61 - 62 of the T documents and are part of document T12.
[6] The applicant's Housing Statement is document T5 of the T documents.
[7] Section 15(1)(a) of the SDA Rules requires the decision-maker to determine the SDA building type that is appropriate to support the eligible participant. To make this determination the decision-maker must have regard to the matters contained in section 16 of the SDA Rules.
In her NDIS plan the applicant’s first goal is to live alone with appropriate supports. Another goal expressed is that she desires to move out of her current home to live as independently as possible in all areas of life and be part of the wider community.
In her Housing Statement, which was prepared by the applicant in a submission to an SDA panel concerning her housing needs, she stressed again the desire to live alone in a supported disability apartment that is fully accessible and has home automation. She stressed the desire to have her own space and her own privacy. Importantly, there were a number of other criteria that she specified as essential to her; which included proximity to her sisters and mother. Additional considerations were proximity to close public transport, supermarkets, bakeries, post offices, shops, restaurants and of course her medical practitioners and physiotherapist whom she consults regularly. A feature of both her Housing Statement and her evidence before the Tribunal was that she emphasised a preference to be able to do things more independently which included, amongst others, shopping, paying bills, going into the city, making greeting cards, undertaking aromatherapy and doing cooking classes.
It was acknowledged by the respondent,[8] and the Tribunal readily finds that the applicant has expressed a strong preference to reside alone in an apartment. It is also quite apparent that such preference and the reasons advanced by her for wishing to reside alone in an apartment, align with the applicant’s statement of goals and aspirations as identified in both her NDIS plan and the Housing Statement that was submitted to the SDA panel.
[8] The respondent's Statement of Facts, Issues and Contentions at paragraph 34.
In having regard to the applicant’s preference to live alone the Tribunal as decision-maker must place significant weight on this matter as a relevant factor in favour of allowing her a single occupancy apartment.
The Tribunal does not agree with the respondent that on the evidence before it the requested supports are not reasonable and necessary. The respondent does so on the grounds that section 34(1)(c) of the Act is not satisfied in that the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved in the cost of alternative support. The Tribunal finds that a two bedroomed two occupant apartment would not achieve the same outcome at a substantially lower cost within the meaning of rule 3.1(a) of the Support Rules.
There are several reasons for this. The applicant does not know who she will be sharing an apartment with. There was some oblique reference in the evidence to a “screening process” which would be adopted to find a suitable co-tenant of such an apartment. Ms Galvin who is an occupational therapist of vast experience, in the region of 300 or 400 SDA housing assessments, gave evidence that there would be a small window of people in the high physical support category that would make it very hard to find a match. However, it seems more probable than not that the prospective co-tenant would be someone who has similar disabilities to the applicant. This of itself poses some physical problems when consideration is made of the spatial needs of each tenant with regard to the placement of their various aids such as powered wheelchairs, manual wheelchairs, walking frames, ventilators, PEG equipment, medical supplies and other equipment. There is likely to be the necessity for a hoist to enable carers to move the tenants from time to time.
It should also be borne in mind that the applicant has a carer from between four to six hours per day six days per week. This requirement is only likely to increase as her condition deteriorates. With a co-tenant who has similar disabilities the likelihood of two carers being present as well as the two occupants is distinct and real. This sheer risk of congestion cannot be underestimated. Ms Galvin pointed out that two powered or motorised wheelchairs in the one space at the very least would not be easy. The Tribunal agrees.
Another matter which is relevant to achieving the same outcome relates to the applicant’s social activities. She described herself as a social individual who wishes to have visitors to her place of residence. This is understandable. The questions must be posed, what happens if both tenants wish to have visitors at the same time? How is this to be negotiated? There was considerable attention to the questionable capacity of the applicant to negotiate with a co-tenant about such matters let alone other day-to-day considerations that people living under the same roof almost inevitably have to address. Due to her disability the applicant contends, and the Tribunal agrees, that she will find it difficult to negotiate with a co-tenant, particularly if there is a disagreement. It is another reason why the supports suggested by the respondent of a two-occupant apartment is unrealistic for the applicant.
Ms Galvin, whom the Tribunal found to be a most impressive witness who gave her evidence in a fair and impartial way, considered that communication for the applicant is the main issue. It was explained by Ms Galvin that the applicant has difficulty producing verbal speech. She is able to speak in a whisper (as the Tribunal observed from her evidence) but has difficulty with articulation and does best with familiar listeners.[9] Primarily she communicates by text and email. She foreshadowed that if the prospective co-tenant had problems of their own with communication, it would be really challenging. Ms Galvin emphasised that it has to be accepted that the applicant’s communication difficulties are likely to become more pronounced with time and that the assumption she is able to negotiate with a co-tenant is not fair and reasonable. The Tribunal accepts this evidence from Ms Galvin.
[9] Present during her evidence was the applicant's carer who was able to conduct fluent conversations with her and clearly would fall within the category of a "familiar listener."
Ms Galvin then identified the risks that would follow from the applicant’s inability to negotiate, or perhaps more accurately to negotiate effectively with a potential co-tenant; in particular, she identified mental health risks that would possibly emerge around the applicant’s social isolation. This could lead to her spending all of her time or a significant amount of her time in her bedroom. There would be no social interaction or limited social interaction. Further there is the potential for no social connections to be formed or maintained. This, in her view, was a distinct and real risk. The Tribunal accepts this evidence from Ms Galvin.
Mr Angel’s evidence on this topic was not really at variance with that of Ms Galvin. He readily conceded that having control over who enters one’s home in privacy and autonomy, not to mention independence, are important considerations. The difficulty that the applicant might have negotiating with a co-tenant was acknowledged. He readily conceded that most people would want to control who would enter their home. He acknowledged that the applicant had expressed concern about a two-occupant apartment from a safety perspective. He also conceded that if someone is unsafe at home it could affect their ability to achieve their goals. Fear, he explained, is a precursor to anxiety and can lead to isolation. He readily conceded that he believed the applicant when she expressed her fear to him about the prospect of living with a stranger (it should be observed that the applicant gave evidence to this effect to the Tribunal). In cross-examination, he also readily acknowledged that he had seen co-residents who were unable to get along. Frequently, this occurred in the autism space or the psychosocial space. To his credit he stated that it was not unreasonable for the applicant to have these concerns. The Tribunal agrees.
It should be acknowledged that in response to a specific question whether there are any factors related to the applicant’s functional capacity which create limits on the number of people she could live with, Mr Angel opined that she has the capacity to live with others with minimal to no risk of issue. He did qualify this opinion in response to a later question by acknowledging that the applicant has a capacity to live with another person with similar needs and interests.
Another feature of Mr Angel’s report and his evidence was that whilst he expressed an opinion that the applicant had a capacity to live with others with minimal to no risk, he readily acknowledged the applicant’s preference to live alone. Once again, to his credit he identified four considerations it should be noted concerning the issue of whether the applicant should live alone or with another in a two-occupant setting. It is worth repeating them as follows:
(a)The applicant’s preference to live alone;
(b)The applicant’s capacity to entertain and socialise with her siblings and their children in the comfort and privacy of their own home;
(c)The applicant’s concerns regarding her capacity to remain safe if living with others; and
(d)Living alone is appropriate for her current life stage.[10]
[10] These can be found in the medical report of Mr Angel at page 7.
This approach was reiterated by Mr Angel to his credit in cross-examination. He said that the applicant’s preferences have to be ascertained, a full functional assessment undertaken, then an evaluation of proximity to amenities, consideration of the match of tenant and what is reasonable and practicable together with her current life stage considerations.
The Support Rules
Reference should be made to section 3.1(b) of the Support Rules about whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to the participant. Ms Galvin both in her report and evidence before the Tribunal expressed the opinion that living on her own was entirely appropriate and reasonable given her life stage and personal preferences. She emphasised that it was appropriate to her life stage as most people in their 50s don’t move to shared housing particularly with someone they do not know. She described it as not typical of 50 year olds. She emphasised that living alone would provide the applicant the opportunity for social connection with friends and family and would allow her the opportunity to have choice and control over her daily routines. She also emphasised that some of the applicant’s goals and interests would not be served by living in an apartment with another occupant. By way of example, she highlighted the applicant’s interests in aromatherapy which potentially may not be acceptable to a co-tenant. Mr Angel also expressed the opinion that living alone is appropriate for the applicant’s current life stage. The Tribunal accepts Ms Galvin’s evidence on this topic.
Overall, when one considers the evidence before the Tribunal, it concludes that living in a single occupant apartment will substantially improve the life stage outcomes for and be of long-term benefit to the applicant, as contemplated by rule 3.1(b) of the Support Rules.[11]
[11] Section 16(i) of the SDA Rules are also referred to with respect to life stage outcomes.
At the age of 56, the applicant has lived her entire life in the former family home and in more recent years with her mother. The relationship with her mother, as noted earlier, has become fractured and extremely difficult. Her goal is to live alone and establish her independence. Achieving this goal must, of necessity, lead to a substantial improvement in life stage outcomes and clearly be for her long-term benefit. One has to question whether as a 56 year old, yet again sharing her residence with another unknown individual, would lead to a substantial improvement in life stage outcomes. There are too many unknowns to reach that conclusion.
Availability of single occupancy dwellings for high physical support with OOA
As noted earlier, another limb to the respondent’s contention is that there are available single occupancy dwellings being an existing stock of villa/ duplex/ townhouse high physical support with OOA.[12]
[12] See NDIS Pricing Arrangements for Specialist Disability Accommodation 2021-22 Appendix C.
The evidence before the Tribunal by reference to the SDA finder website, which was searched during the hearing, is that there were no dwellings available in this category in the Melbourne Inner region (which both parties agree is the appropriate region for the applicant).
Indeed, Ms Galvin gave evidence that the duplexes and villas that were available were on the outskirts of Melbourne and did not have the amenities that apartments did. This would also lead to increased transport costs. She referred to an apartment that the applicant had looked at in Moonee Ponds which was approximately 200 metres from the train station. Ms Galvin said access to public transport is important. This evidence was not challenged and is accepted by the Tribunal.
If the applicant was required to reside in a villa or duplex outside the Melbourne Inner region the Tribunal concludes that it would substantially impact upon her capacity to achieve the goals that she has set for herself; particularly access to public transport shops and facilities that would enable her to undertake the pursuits that she has identified in her Housing Statement. There is also the fact that she would likely to be some considerable distance from her treating doctor and physiotherapist with whom she consults regularly. This is not to mention there would be further distance from her family and social contacts which are important to her. Collectively, it would be much harder for her to achieve all the goals that have been identified in the material that is before the Tribunal. Therefore, it would not achieve the same outcome in the relevant sense.
Mr Angel in his evidence conceded, to his credit, that if the applicant had location-specific goals, location would affect the decision. The Tribunal agrees with this conclusion.
Another consideration about living in a villa or a duplex that was identified by Ms Galvin in her report is that, quite obviously, the applicant is not able to complete gardening and home maintenance activities and would require additional support hours to be able to complete these tasks if she were to live in such a dwelling. Given the severity of the applicant’s impairment this is not a realistic proposition in the view of the Tribunal.
For these reasons the Tribunal concludes that the option of a villa or a duplex is not a comparable support which would achieve the same outcome at a substantially lower cost.
Rule 3.1(c) of the Support Rules
The respondent relies upon rule 3.1(c) of the Support Rules to contend that there is no evidence before the Tribunal that the funding of a single occupancy apartment will reduce the cost of the funding of supports for the applicant in the long-term. It relies upon the report of Mr Angel in support of this contention. Mr Angel concluded as follows:[13]
(a)There is no known method of reducing person supports based on single occupancy SDA;
(b)The applicant requires and will require 1:1 support regardless of her living arrangements; and
(c)There is some option to share supports such as on-call assistance (usually shared anyway) and domestic tasks, however, this is overall negligible.
[13] The answer to question 10 contained in Mr Angel's report is referred to.
Ms Galvin in cross examination said that she agreed with Mr Angel’s conclusions on this topic.
The Tribunal has considered this matter and finds that it does support the respondent’s contention.
Rule 3.1(f) of the Support Rules
The next provision of the Support Rules to consider is that of 3.1(f) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports.
As noted, the respondent contends that the requested support being a single occupant apartment will not reduce the applicant’s need for other kinds of supports. This may well be so. However, the support will increase the applicant’s independence which is one of her primary goals identified in both her NDIS plan and her Housing Statement, details of which have been referred to previously in these reasons. It must be repeated that the applicant’s current living arrangements with her mother remain untenable and achieving her independence is of critical importance to her, understandably so.
Given that she is not able to live safely at home with her mother, her independence is a vital factor. Both Ms Galvin and Mr Angel acknowledged the importance of living independently to the applicant in their respective reports and from the witness box. Overall, a single occupant apartment would maximise the applicant’s independence. As was pointed out in some of the evidence before the Tribunal including from Mr Angel, if the applicant is in a shared apartment for instance, and the other tenant invites guests around she would be required to either leave the apartment or retire to her bedroom whilst those visitors were present. This is a fetter upon her independence in a way contemplated by this rule.
The respondent also contended that the requirements of section 34(1)(d) of the Act were not established namely that the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice.
The Tribunal did not understand either Ms Galvin or Mr Angel to suggest that a single occupant apartment would not be effective and beneficial for the participant. Mr Angel in his report merely pointed out that, in his opinion, the applicant had the capacity to live with others with minimal to no risk. He acknowledged the applicant’s preference to live alone but stated there were no functional limitations associated with her capacity to live with others. He did identify reasons why she could live alone apart from her preference including her capacity to entertain and socialise, concerns about remaining safe if living with others and that living alone was appropriate for her current life stage.
The Tribunal has already identified why it is beneficial for the applicant to live alone in a single occupant apartment; these reasons equally apply to this section of the Act.
SDA Rules
It is appropriate to consider some of the other provisions of section 16 of the SDA Rules as applicable to the applicant which have not been addressed in these reasons so far. Regrettably, they were not touched on by either party in their closing submissions. The Tribunal considers that it is necessary to consider them for the purposes of disposing of this application doing the best it can on the limited material before it.
Section 16(b) SDA Rules
Section 16(b) of the SDA Rules requires consideration of the features of the building type in relation to the applicant’s needs. Much has been said already which is captured by this section. However, the Tribunal accepts the evidence of Ms Galvin, that the applicant’s desire to live alone is very reasonable and entirely appropriate given her life stage and personal preferences. Her needs include the capacity to feel safe in her own home. Ms Galvin also identified the fact that an apartment is reasonable given the very high support needs that the applicant has and will continue to have as her condition deteriorates. The Tribunal agrees with this assessment.
It is also apparent, as has been observed earlier, that her needs will not be served if she is required to live in a two occupant apartment due to the likelihood of congestion with both tenants aids and equipment present coupled with the likelihood of carers also being present at the same time.
The applicants’ needs for privacy and independence will not be served to the maximum extent possible if she is required to share an apartment with another occupant.
Section 16(c) and (d) SDA Rules
Sections 16(c) and (d) of the SDA Rules require consideration of the appropriate support model for the applicant’s support needs. The Tribunal accepts the evidence of Ms Galvin, that has been referred to earlier in these reasons, that the desire on the part of the applicant to live in an apartment is reasonable given her very high support needs. She pointed out, which the Tribunal also agrees with, that a shared support model is provided in many apartment buildings which will allow the applicant to have individual supports at specific times during the day, while also having access to on-site support for unanticipated needs throughout the day.
For these reasons, apartment living is reasonable and necessary. The likelihood of unanticipated needs throughout the day leads to a conclusion that a single occupant apartment is a more realistic support model for the applicant’s support needs.
Section 16(f) SDA Rules
Section 16(f) of the SDA Rules requires consideration of the extent to which the building type would facilitate social and economic participation. The applicant gave evidence, which the Tribunal accepts, and was not at all seriously disputed, that she is a social person and makes friends easily. A single occupant apartment would maximise her capacity for social interaction and participation because she will be able to have guests visit as and when she wishes. This is important to her and she would not be dependent on negotiating with a co-tenant about when visitors could attend. It would be a positive encouragement to social participation. A single occupant apartment would also enable the applicant to live independently in the community and foster social participation.
Section 16(g) SDA Rules
Section 16(g) of the SDA Rules addresses facilitating connections both past, established or planned, in particular cultural and community connections. It can be envisaged that with her own apartment and outside the restrictive environment that she currently finds herself in, broader connections in the community would be facilitated. It should also be repeated that some of her goals that have been articulated both in her NDIS plan and her Housing Statement were location-specific and an apartment, particularly a single occupant apartment would facilitate the achievement of those goals.
Section 16(h) SDA Rules
Section 16(h) of the SDA Rules addresses the extent to which the building type deals with risks to the participant. The applicant did emphasise risk particularly in the context of having to share with a co-tenant who is a stranger to her. The Tribunal accepts these concerns on the applicant’s part. A single occupant apartment would obviously minimise any risks to the applicant both from a co-tenant and the physical environment.
Section 16(j) SDA Rules
Section 16(j) of the SDA Rules concerns the extent to which the building type positively impacts on the applicant’s capacity and capabilities. This has been addressed already in these reasons. A single occupant apartment will positively impact upon the applicant’s capacity and capability of meeting the goals that she has set for herself both as articulated in her NDIS plan and her Housing Statement. They will give her the same right to realise the potential for development as other members of the community in a way contemplated by the guiding principles found in section 4 of the Act.
The Tribunal considers that such an apartment will alleviate the impact of her impairment on her daily functioning. It will enhance her skill development in particular her independent living skills.
Section 16(k) SDA Rules
Section 16(k) of the SDA Rules concerns the extent to which the building type facilitates or sustains informal supports. A single occupant apartment would achieve this objective to the maximum extent possible particularly as noted earlier, that the applicant is a social individual and that more likely than not some informal supports would be cultivated by her living in an apartment on her own. Informal supports would be derived from the capacity to have visitors attending at the apartment as and when she sees fit. There will be of course informal supports provided to her by her mother and siblings of which evidence was given before the Tribunal. This objective would to some extent be hampered if she were required to live in an apartment with another occupant.
Section 16(l) SDA Rules
Section 16(l) of the SDA Rules requires the decision-maker to consider the extent to which the building type facilitates or hinders the provision of other supports. A single occupant apartment would not hinder the provision of other supports. It would facilitate the provision of those supports whatever they may happen to be and supports in general to the maximum possible extent.
Section 16 SDA Rules Overall
Section 16 of the SDA Rules does not list the matters a decision-maker is to have regard to any order of priority. However, a decision-maker should be mindful of the guidance given both in section 3 of the Act with respect to its objects and the general principles contained in section 4. In particular, one of the objects of the Act is choice and control for participants. In section 4 one of the general principles is that those with a disability have the same rights as others in the community to determine their own best interests. These considerations do place an emphasis on the participant’s preference. In this case, the applicant has expressed a strong preference to live on her own. This is understandable, particularly at the age of 56.
In any event, when one has regard to all of the matters contained in section 16 of the SDA Rules, the SDA building type that is appropriate to support the applicant as an eligible participant is a single occupant apartment.
Conclusion in relation to the consideration of section 34 of the Act, the Support Rules and the SDA Rules
Having considered the requirements of section 34 of the Act, the Supports Rules and the SDA Rules for the reasons articulated the Tribunal determines that the SDA building type that is appropriate to support the applicant is that of a single occupant apartment. This finding is consistent with the general principles guiding actions under the Act, found in section 4. It is also consistent with the objects of the Act when applied to the circumstances facing the applicant. It will enable her to realise the potential for development as would other members of the community and to live with privacy and dignity.
A brief word should be said about the applicant’s contentions concerning the applicability of the provisions of the Convention. The respondent referred to the decision of the High Court in Minister for Immigration and Ethnic Affairs v Teoh (“Teoh”).[14] Chief Justice Mason and Justice Deane stated as follows:
“It is well-established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute… This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive…. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law”.
[14] (1995) 183 CLR 273 at [25].
This passage was cited with approval by Deputy President Forgie in Pavilupillai v National Disability Insurance Agency.[15]
[15] [2018] AATA 4641.
The Tribunal agrees with the respondent’s contention that it would be contrary to the principles identified by the High Court of Australia in Teoh, and the principles of statutory construction to read in section 34 of the Act as a requirement that its words must incorporate the words of the principles contained in Article 19 of the Convention. Had Parliament intended that the provisions of the Convention be incorporated into domestic law it would have done so.
Further, the Tribunal observes that the language used in the Act and the relevant rules made under them including the Support Rules and the SDA Rules is quite capable of proper statutory construction without the necessity of having recourse to extrinsic materials including Explanatory Memoranda or even the provisions of the Convention.
DECISION
The reviewable decision is set aside and in substitution a decision made that the applicant is entitled to Specialist Disability Accommodation funding for:
(a)Design category: high physical support including overnight assistance;
(b)Building type: apartment, single occupancy; and
(c)Location: VIC - Melbourne – Inner.
I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member
.....[sgd].............................................
Associate
Dated: 9 February 2022
Dates of hearing: 1 & 2 December 2021
Advocate for the Applicant:
Solicitor for the Applicant:
Advocate for the Respondent:
N Anderson
Villamanta Disability Rights Legal Services Inc
R Hamnett
Solicitor for the Respondent: Australian Government Solicitor
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