Boicovitis and National Disability Insurance Agency

This matter concerned an application by the applicant, who suffers from Muscular dystrophy and Fazio-Londe Syndrome, for Specialist Disability Accommodation (SDA) funding for a single occupancy apartment. The applicant's conditions are progressive, leading to severe impairment and a continuing decline in motor skills and capacity. She currently resides with her elderly mother, a living situation described as traumatic due to verbal abuse and restrictions on her mobility and care. The applicant sought to leave this environment urgently, facing difficulties accessing crisis accommodation due to her disability.

The central legal issue before the Tribunal was whether the applicant should receive SDA funding for a single occupancy apartment, as opposed to sharing accommodation. The applicant contended that sharing an apartment would lead to a crowded living environment, difficult to accommodate necessary medical equipment, and would contravene the objects of the National Disability Insurance Scheme Act 2013 (Cth), specifically those relating to choice and control, high-quality support, and protection from harm. The respondent acknowledged the applicant's preference but argued against incorporating principles from international conventions into the interpretation of the Act.

The Tribunal considered the applicant's stated goals and aspirations, which included a strong preference to live alone in a supported disability apartment with privacy and independence. It noted that section 16(a) of the SDA Rules requires decision-makers to have regard to an eligible participant's preference if it can be established and aligns with their stated goals. The Tribunal found that the applicant's preference to live alone was clearly established and aligned with her NDIS plan and Housing Statement. Furthermore, the Tribunal determined that the language of the Act and relevant rules was sufficient for proper statutory construction without recourse to extrinsic materials.

The Tribunal set aside the reviewable decision and substituted a new decision. The applicant was found to be entitled to SDA funding for a single occupancy apartment, with a design category of high physical support including overnight assistance, and located in Inner Melbourne, Victoria.