Bonnici and National Disability Insurance Agency
[2024] AATA 2916
•16 August 2024
Bonnici and National Disability Insurance Agency [2024] AATA 2916 (16 August 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s):2023/5426
Re:David Bonnici
APPLICANT
AndChief Executive Officer, National Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member P French
Date:16 August 2024
Place:Sydney
The Tribunal orders:
(1)Pursuant to s 25(4A) of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal determines that the scope of this administrative review does not include consideration of any prior request for support by the Applicant in relation to home modifications, including Crimsafe window and door grills.
(2)The application, insofar as it concerns an application to vary the Applicant’s statement of participant supports to provide for support coordination to be plan managed, is dismissed pursuant to s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) on the basis that it is misconceived.
(3)Pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) the decision under review is otherwise affirmed as the preferrable decision.
.......................[sgd]....................
Member P French
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – National Disability Insurance Agency – reviewable decision of Chief Executive Officer – preparing participants’ plans – approval of statement of participant supports – reasonable and necessary supports – whether requested support will assist the participant to pursue the goals, objectives and aspiration including the statement of participant goals and aspirations – whether the support will assist the participant to undertake activities so as to facilitate the participant’s social and economic participation – whether requested support represents value for money – whether requested support will be, or is likely to be, effective and beneficial – where the requested supports would harm the participant - reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 19A, 25, 25(4A), 26, 37, 38AA, 42B, 43
National Disability Insurance Scheme Act 2013 (Cth), ss 3, 4, 17A, 31, 32, 33, 34, 35, 47A, 48, 99, 100, 103, 206
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth), rr 3.1, 3.2, 3.3, 3.5, 3.6, 3.7, 5.1, 5.2, 7.1, 7.2, 7.6, 7.7
CASES
Beezley v Repatriation Commission [2015] FCAFC 165; (2015) 150 ALD 11
HPSC and National Disability Insurance Agency [2021] AATA 727
McGarrigle v National Disability Insurance Agency [2017] FCA 308; (2017) 252 FCR 121
National Disability Insurance Agency v KKTB by her litigation representative CVY22 [2022] FCAFC 181; (2022) 295 FCR 379
National Disability Insurance Agency v WRMF [2020] FCAFC 79; (2020) 276 FCR 415Shi v Migration Agents Regulation Authority [2008] HCA 31; (2008) 248 ALR 390
SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and statistical manual of mental disorders: DSM-5 (American Psychiatric Association, 5th ed, 2013)
Robyn L Tate, Manual for the Care and Needs Scale (CANS) (John Walsh Centre for Rehabilitation Research, University of Sydney, 2nd ed, 2017
REASONS FOR DECISION
Member P French
16 August 2024
Introduction
This is an application by David Bonnici (the Applicant) under s 103(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act, the Act) which originally sought administrative review of an internal review decision made on 19 July 2023 under s 100(6) of that Act by the delegate of the Chief Executive Officer of the National Disability Insurance Agency (the delegate, the CEO, the Agency). By that decision, the delegate confirmed the CEO’s original decision under s 33(2) of the Act made on 25 May 2023 to approve a statement of participant supports in his participant plan which did not include certain supports that the Applicant had requested be included. This application was made to the Tribunal on 23 July 2023 (the proceeding).
On 21 December 2023, while this proceeding was on foot, a delegate of the CEO decided to vary the Applicant’s participant plan pursuant to s 47A of the Act in response to his request for such variation (the variation decision). That variation resulted in the issue of a participant plan that incorporated a new statement of participant supports which was expressed to commence on 21 December 2023 and had a projected reassessment date of 21 December 2025 (the Applicant’s current participant plan). That variation did not resolve the underlying dispute.
By operation of s 103(2)(b), (c)(i), and (d)(i), of the NDIS Act the proceeding is now taken to be an application for review of the variation decision (the reviewable decision) despite s 26(1) of the AAT Act. This Tribunal has jurisdiction under s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to review this decision because it is designated a reviewable decision by s 99(1) (Item 6) of the NDIS Act.
Having considered all the evidence before me at the date of the hearing, and for the reasons explained in detail following, pursuant to s 43(1)(a) of the AAT Act, I have decided that the decision under review, insofar as it remains before me, should be affirmed because it is the preferable decision. While the policy that underpins the Act in general, and participant plans specifically, places emphasis on the values of agency, choice, and control of a participant in the designation of their goals and the selection of those supports that will assist in achieving them, those values are not without limitation. At the highest level, those values must be reconciled with a fundamental purpose of the Act which is to provide supports to participants that will support their independence and social participation and inclusion in society.
Upon careful consideration of the additional supports the Applicant has requested, and in the specific circumstances of this case, I am satisfied that if they were incorporated into the Applicant’s participant plan, they would exacerbate his social anxiety and increase is social isolation and dependence upon formal supports. They would, in effect, create an artificial community of paid support for the Applicant rather than promote his genuine participation in the community and the formation of freely given relationships with others. That would not be consistent with his statement of participant goals and aspirations, nor would it represent value for money, and nor would it be beneficial for the Applicant. In fact, it would be harmful to him. It therefore should not be approved.
As will emerge from these reasons, the Applicant’s quality of life is currently severely compromised by his refusal to accept clinical care and treatment for his mental health conditions, his alcohol dependence, and his related antisocial behaviour. The NDIS is not a panacea. It does not provide any substitute or alternative to the clinical care that is available to the Applicant in relation to his mental health symptoms in the general and mental health systems. Until the Applicant receives that clinical care, from an objective viewpoint, it is difficult to see how he can obtain any substantial benefit from the supports incorporated into his existing participant plan, let alone from the provision of additional supports.
Procedural history
Following the filing of the application, the proceeding was referred for alternative dispute resolution in accordance with Division 3 of Part IV of the AAT Act. Three Case Conferences were held to attempt to progress the proceeding to resolution. However, the Applicant’s participation in those Case Conferences proved seriously problematic. His communications with Tribunal staff and the Agency’s representatives before, during and after those events were profane, racist, and otherwise abusive and threatening.
Consequently, in early March 2024, the proceeding was referred to me for Case Management, including to determine whether it ought to continue in the alternative dispute resolution stream or be constituted for hearing. I conducted a Case Management Directions Hearing on 19 March 2024 and, after hearing from the parties, determined that the proceeding should be constituted for hearing. I made directions for the parties to file and exchange the further evidence and submissions that they intended to rely upon at the final review hearing. I also directed the parties to file and exchange Hearing Certificates for the period 17 June 2024 to 3 July 2024 on or before 29 March 2024.
On 25 March 2024, the Deputy President responsible for the AAT’s NDIS Division constituted the proceeding to me for hearing in accordance with the President’s Directions made under s 19A of the AAT Act (the constitution).
On 28 March 2024 the Agency filed its Hearing Certificate as directed. The Applicant did not respond to the direction for the filing of a Hearing Certificate.
On 3 April 2024, after perusing the Agency’s Hearing Certificate, I fixed the proceeding for hearing in person in the Sydney Registry on 17 and 18 June 2024. The Registry issued Hearing Notices to the parties advising of that listing later that day.
I note that the proceeding was fixed for a live hearing in accordance with repeated demands made by the Applicant that all Tribunal events be in person rather than by video or telephone. Given the Applicant’s manner of conducting his case that gave rise to competing considerations. However, I ultimately concluded that a live hearing had better prospects of the Applicant maintaining engagement with the process (rather than disconnecting and frustrating the progress of his review as he had done in ADR events, and as he had attempted to do at the Telephone Directions Hearing conducted on 19 March 2024).
On 21 May 2024, at the request of the Agency, I approved a short extension of time for compliance with the pre-hearing procedural directions that remained outstanding.
On 12 June 2024 the Applicant wrote to the Tribunal to request an adjournment of the hearing citing as grounds a recent and still pending application he had made to NSW Legal Aid for a grant of aid to be represented in the proceedings and so that he could obtain other reports in support of his case. I considered that request in Chambers and later on 12 June 2024 issued a direction to the Applicant that required him to give to the Tribunal and the Agency a submission in support of his adjournment application which addressed the following matters: (a) the reasons why he had not complied with the procedural direction for the filing and exchange of his evidence up to that date; (b) the specific reports he intended to obtain, the names of the practitioners from whom those reports would be obtained, and any details as to appointment times, or expected date of receipt of the requested reports; and, whether he had obtained a grant of legal aid to be represented in the proceedings. I also made a direction that enabled the Agency to make a submission in response to the adjournment application after its consideration of any submission made by the Applicant.
On 14 June 2024 after considering the parties submissions I made an order refusing the Applicant’s adjournment request. I provided written reasons for doing so which were published with that order. It is therefore unnecessary to repeat those reasons here. I confirmed that the Hearing would proceed on 17 and 18 June 2024.
Evidence and hearing
I have considered the following material in reaching my decision:
(i)Agency’s Statement of Facts, Issues and Contentions (SOFIC), dated 28 May 2024;
(ii)Agency Tender Bundle (Exhibit 1);[1]
(iii)An Agency compilation of email communications from the Applicant sent to it, its legal representatives, and the Tribunal in relation to this proceeding while it has been on foot (Exhibit 2); and
(iv)The documents filed by the Agency pursuant to ss 37 and 38AA of the AAT Act (the T-documents).
[1] My directions of 19 March 2024, confirmed on 21 May 2024, directed the parties to file a joint tender bundle, or if unable to reach agreement as to the contents of the joint tender bundles, separate bundles. The Applicant did not agree to the Agency’s proposed tender bundle and did not file his own tender bundle.
The hearing was conducted in person from a Hearing Room in the Sydney Registry on 17 and 18 June 2024. It was appointed to start from 10am each day. The Applicant was not present at 10am on the first day and after waiting 10 minutes I stood the matter down until 10:30am to allow further time for him to arrive or to contact the Registry to explain his absence. The Applicant arrived at the Registry just prior to 10:30am and agreed to enter the hearing room shortly afterwards. The hearing commenced at 10:38am.
The Applicant was self-represented. He gave oral evidence in his own cause under oath. I note that the Applicant was in an emotionally dysregulated state throughout the hearing. He was querulous, and repeatedly verbally abusive and threatening. Much of what he said related to traumatic events in his childhood, his asserted right to be recognised and compensated in relation to that trauma, and to asserted failures of officials connected with the NDIS and Agency. Most of what he said had no bearing on the issues to be determined in this review and will not be set out in these reasons.
A disability support worker engaged in the Applicant’s support, Mr H Shah, attended the hearing with him. For reasons I explain following I determined that Mr Shah could not give evidence but could sit with the Applicant and provide him with informal support. The record will show that I allowed the Applicant several breaks to talk with Mr Shah about the presentation of his case. I also note that while the Applicant was giving evidence, I was obliged to caution Mr Shah on several occasions that he was not to coach the Applicant in relation to his evidence.
The Agency was represented at the hearing by Ms M Fisher of counsel, instructed by Moray & Agnew. The Agency called as a witness Dr N Verma, Psychiatrist and Occupational Physician, who gave evidence under oath on 18 June 2024.
The parties had the opportunity to make opening statements, present their evidence, ask the witnesses questions,[2] and make final submissions to the Tribunal.
[2] I note that the Applicant was provided an opportunity to ask Dr Verma questions about his evidence but declined to do so: Transcript of Proceedings, 18 June 2024, (Transcript Day 2), page 59, line 45 to page 60, line 8.
The T-documents and Agency Bundle included the following reports which the Applicant or a former Support Coordinator or Social Worker had given to the Agency at various times in association with requests for the variation of his statement of participant supports:
i.A Functional Capacity Assessment Occupational Therapy Report by Ms N Tran, of an entity trading as Better Rehab dated 4 January 2023 (the Tran report);[3]
ii.A report by Dr D Banerjee, Sleep and Cannabinoid Physician, of an entity trading as Lullaby Sleep Vivace Clinics dated 2 February 2023 and four associated “Cannabinoid Directions for Use” prescriptions also dated 2 February 2023;[4]
iii.A “Coordination of Supports: Progress Report” prepared by Mr S Fraser, Support Coordinator, Lifestyle Solutions (Aust) Ltd dated 8 February 2023;[5]
iv.A “Biopsychological Assessment” report by Ms M Small, Social Worker, of an entity trading as Coastcare Sydney dated 3 March 2023 (the Small report);[6] and
v.A “NDIS Physiotherapy Recommendation Report” by Mr A Phan, of an entity trading as Firstline Physiotherapy dated 13 December 2024 (the Phan report).[7]
[3] Agency Bundle, Tab T3, pages 16–40.
[4] Agency Bundle, Tabs T4, and T5, pages 41–6.
[5] Agency Bundle, Tab T6, pages 47–9.
[6] Agency Bundle, Tab T7, pages 50–4
[7] T- Documents, Tab A05, pages 210–3.
At the Telephone Directions Hearing conducted on 19 March 2024 the Agency’s representative put the Applicant on notice that it required Ms Tran, Ms Small and Mr Phan to be made available at the hearing so that they could be asked questions. This was subsequently confirmed in the Hearing Certificate the Agency filed on 29 March 2024. It was later noted on the Hearing Notices issued to parties on 3 April 2024.
The Applicant did not file and serve a tender bundle incorporating these reports in accordance with the pre-hearing procedural directions. Nor did he offer any of the authors of these reports as witnesses. At the outset of the hearing, he told the Tribunal that this was because he had “sacked”[8] each of these clinicians due to grievances with them, and consequently, he considered their reports were no longer relevant. In effect, he asserted that he no longer relied upon these reports in support of his case.
[8] He stated this again while being asked questions by counsel for the Agency; Transcript Day 2 page 40, line 12.
Prior to the hearing, the Applicant had advised the Tribunal and the Agency that he intended to bring to the Hearing, without serving on the Agency, confidential expert medical information pertaining to traumatic life events which I will refer to obliquely as leading to his Post Traumatic Stress Disorder. In its pre-hearing communications in response, the Agency’s representative indicated that the Agency would object to the tender of any such material on the basis that it would be procedurally unfair to allow it into evidence in circumstances where it had not had a prior opportunity to consider it.
At the Hearing outset, the Applicant initially indicated an intention to rely on this material, but he had not brought it with him. Nor did he later attempt to tender it. Therefore, no occasion arose in fact to consider the admission of this material into evidence. I note, however, that I did indicate to the Applicant at the hearing outset that it was not immediately apparent to me how this information would be relevant in this review in any event, because the review concerned his statement of participant supports, and did not involve any dispute as to whether he had impairments attributable to a psychosocial disability that made him eligible for the NDIS. Nor did the review involve consideration of the subject matter of any litigation in another place concerning those matters.[9]
[9] Transcript of proceedings, Day 1, 17 June 2024 (Transcript Day 1), page 2, line 35 to page 3, line 12.
As noted above, at the hearing outset the Applicant also advised of his intention to call as a witness Mr H Shah, a disability support worker engaged in the Applicant’s support who attended the hearing with him. The Applicant had not given to the Agency or Tribunal any statement incorporating any evidence that Mr Shah would give in accordance with the pre-hearing directions, nor had any other form of notice been given prior to the hearing that Mr Shah would give evidence. The Agency objected to the Applicant calling Mr Shah as a witness on the basis that it would be procedurally unfair to do so in circumstances where it had no prior opportunity to consider this evidence. After hearing from the parties, I upheld this objection, indicating that Mr Shah was welcome in the hearing as a support person for the Applicant, but was not to give evidence.
Finally, I note that at one point during the hearing the Applicant claimed that the Agency had failed to provide the Tribunal with relevant evidence he had given it, being a report of his former psychiatrist, Dr K Roberts.[10] This caused the Agency to conduct searches for any material of this nature held against the Applicant’s account in its databases. On the second day of the hearing counsel for the Agency informed the Tribunal that its searches did not result in the identification of any report or similar authored by Dr Roberts.[11] The Applicant later conceded that no such report had ever been given to the Agency.[12]
[10] Transcript Day 1, page 43, lines 5–6.
[11] Transcript of proceedings, Day 2, 18 June 2024 (Transcript, Day 2), page 62, lines 8–17.
[12] Transcript Day 2, page 73, lines 25–6.
The Applicant also claimed that he had given the Agency a report of a Dr N Woodgar which diagnosed him with a brain injury.[13] No such report was in the T- documents or had been submitted into evidence by the Applicant. I understand the Agency’s position to be that it does not hold any such report.
[13] Transcript Day 1, page 26, lines 24–5.
The Applicant’s position in relation to his evidence thus became:
I’m relying on nothing but my voice then, okay? Cool?[14]
[14] Transcript, Day 1, page 3, line 37.
Background facts
The Applicant is a single man aged 44. He lives alone in a one bedroom unit in a residential block in a suburb of Sydney under a social housing tenancy agreement with a social housing provider.
The Applicant was granted access to the NDIS on 8 October 2019. A planning delegate of the CEO later developed a participant plan for the Applicant which commenced shortly thereafter.
The Applicant was assessed as meeting the s 24(1)(a) and (b) disability requirements for access to the NDIS based on permanent impairments attributable to psychosocial disability, being specifically, Post-Traumatic Stress Disorder, Major Depression, Generalised Anxiety Disorder, and substance use disorder (the Applicant’s psychosocial disability).
The Applicant’s psychosocial disability results from traumatic life events during his childhood which it is not appropriate to describe here. I note that there is no issue in this proceeding as to the reality of those events or in relation to the impairments that are attributable to the Applicant’s psychosocial disability to which they gave rise, or in relation to the reduction in functional capacity that the Applicant experiences because of those impairments. The only issues that are before the Tribunal are whether the Applicant’s requested supports are reasonable and necessary.
The Applicant’s statement of goals and aspirations which is incorporated into his Participant Plan is as set out following. As I understand the evidence, this has not changed since the Applicant’s first participant plan was issued:
[Goal or aspiration]
I would like the support to maintain my mental and physical health by engaging in exercise and healthy eating, which will assist to improve my overall wellbeing and willingness to take care of myself.
How will I work towards this goal?
How will I work towards this goal?
I will be open to receiving suitable supports and be open to making a positive and healthy change in my everyday life through diet, exercise and my overall wellbeing.
[Goal or aspiration]
I want to be able to look after myself by improving my routines and having a clean home where this will be done with support so I can become more independent.
How will I work towards this goal?
I will be open to receiving suitable supports and be open to having the supports in my home and I will engage with them to make a positive change in my routines and my day to day life.
[Goal or aspiration]
I would like to access counselling support to develop strategies to enhance my emotional wellbeing.
How will I work towards this goal?
I will access support to improve my symptoms and increase my productivity.
[Goal or aspiration]
I want to try doing different things that I would not normally do, which will help me reduce my smoking and increase my community participation and learn how to get to different places.
How will I work towards this goal?
I will be open to trying new things and when I’m out in the community and be open to having the supports to assist me.
[Goal or aspiration]
I would like to be more engaged and manage my day to day life activities in a more productive way so I can become more involved in life and the community.
How will I work towards this goal?
I will be open to seeing a suitable allied health professional and implement any strategies given to me when I’m in my home or out in the community.
[Goal or aspiration]
In the future, I would like to be able to join in on specific support groups and be able [to] increase my social network.
How will I work towards this goal?
I will be open to being around people I don’t know and implement any strategies given to me, so I can learn how to make and maintain friendships.[15]
[15] Agency Bundle, Tab R02, pages 237–8.
During the hearing the Applicant was critical of the statement of goals and aspirations stating:
[I] would also state for the record that this plan is not written by me. It was written by outside people. It’s not my handwriting. It’s not my notes. So the plan does not work for me, the participant.[16]
[16] Transcript Day 1, page 29, lines 20–3; see also Transcript Day 1, page 13, lines 7–12 and 34–7.
Despite that, I note that there is nothing in the evidence before me that suggests that the Applicant ever disputed his statement of goals and aspirations or requested a change to it prior to the hearing.
On 8 February 2023 a delegate of the CEO approved a participant plan for the Applicant which incorporated a new statement of participant supports following a reassessment of his participant plan conducted in accordance with s 48. That reassessment was triggered by the Applicant lodging a “change of situation” form.
On 17 April 2023 the applicant lodged a further “change of situation” from with the Agency. By that form the Applicant requested a variation to his participant plan because he needed “more or different supports urgently”. The supports requested in that form were the installation of Crimsafe security panels over the windows and doors of the Applicant’s unit. The Agency dealt with this request by conducting a further reassessment of the Applicant’s participant plan in accordance with s 48(2) of the NDIS Act.
On or about 24 May 2024 a Planner delegate of the CEO discussed this request with the Applicant and his Social Worker as part of her reassessment of the Applicant’s participant plan. In the context of that discussion the Applicant requested further housing related supports being funding to pay for the costs of patching and painting the walls in the interior of his unit, which he had damaged by perforating them with a hammer and writing profanities on them, for the replacement of windows and carpet, and for the repair of his bathroom floor to prevent water pooling. The delegate declined to include any of these requested supports in the Applicant’s statement of participant supports.[17]
[17] T-Documents, Tabs T10 and T11.
The Planner delegate of the CEO approved a new participant plan for the Applicant on 25 May 2023 which was expressed to commence on 24 May 2023 and had a projected ‘review’ (reassessment) date of 23 May 2025.
Shortly after receiving notice of that approval the Applicant requested the CEO to conduct an internal review of this decision. The outcome of the internal review was communicated to the Applicant by letter dated 19 July 2023. It is clear from the ‘Basis for Decision’ ‘Materials Reviewed’ section of that letter that in addition to the Applicant’s Change of Circumstances form, the delegate had before her at the time of the internal review the Tran and Small reports, as well as Dr Banerjee’s and Mr Fraser’s reports.
The salient elements of that decision are set out following:
Outcome of your internal review request
…
The decisions you have asked us to review are:
1. Funding 6 hours per day support worker assistance
2. Funding Crimsafe security door and window screens
Outcome of review
…
After careful consideration, I have confirmed the original decision is correct.
You will find detailed reasons for my decision in the “Basis for Decision” section at the end of this letter.
…
Basis for decision – internal review (s100)
…
1. Funding 6 hours per day support worker assistance
NDIS Act section 34(1)(c) criteria: Value for money
NDIS supports need to represent value for money in that the costs of the support are reasonable relative to both the benefits achieved and the cost of alternative support when compared to the benefits to be achieved. For example, whether purchasing the support is likely to reduce the cost of funding other supports in the long term when compared to alternative options that may provide the same outcome at a similar or lower cost. I am not satisfied the requested support meets this criteria. You have requested 6 hours per day / 7 days per week, support worker assistance for community access (shopping), cleaning, support to locate accommodation and general maintenance. In reviewing the evidence …, the evidence does not support that you require a greater level of assistance above what has been funded in your plan.
The Functional Capacity Assessment, (Materials reviewed, Item 5) reports you are independent in activities of daily living, including transfers, mobility, self-care activities and cooking. It is acknowledged that your independence with completing self-care activities is when you are receiving treatment from an appropriate support network.
Your current plan commencing 24 May 2023 includes 25 hours per week for daily living activities [15 hours for daily activities and 10 hours for social and community access]. Core supports can be used flexibly for assistance with meal preparation, personal care, cleaning and other domestic tasks and social and community support.
The Functional Capacity report recommends development of a routine to facilitate participation to gradually increase frequency of showering and changing your clothes, implementing positive habits and routines for cleaning and laundry and budget support.
Your plan includes funding of 20 hours for Allied Health support which may include Occupational Therapy and 1 hour per week of counselling support. I am satisfied your plan has been developed to build your skills to live as independently as possible and can be used flexibly to support your disability specific needs within the plan duration.
Currently, we do not have sufficient clinical evidence to determine why the current funding is not meeting your disability specific needs, the benefit that would be achieved with the provision of additional funding and the outcomes that can be expected. The level of funding included in your plan, together with the consistent implementation of recommended strategies by your Allied Health Professionals will support best practice as allied health therapy can be expected to substantially improve your functional outcomes and support you to work towards your NDIS goals.
I also note that you were asking for support worker assistance to help you find alternative accommodation. Your plan includes 50 hours per year Psychosocial Recovery Coaching and a total of 24 hours Level 3 Support Coordination. Support Coordination can help you to address barriers and reduce complexities in your environment including interacting with Housing whilst your recovery coach can support you to develop recovery enabling relationships with health professionals and supports.
When considering the information available, I am not satisfied the requested increase to your daily support is required to meet your functional support needs pertaining to your disability therefore value for money criteria has not been satisfied.
2. Funding Crimsafe security door and window screens
NDIS Act Section 34(1)(f) criteria: Responsibility of the NDIS to fund
All NDIS supports must be most appropriately provided through the NDIS and not other general service or support systems, such as the employment, education, health and family support services. These services are available to all Australians. We can’t fund a support if it’s the responsibility of another service system. I am not satisfied this support is the responsibility of the NDIS to fund. This is more appropriately provided by the Department of Housing. You have requested funding of $1499.00 for a Crimsafe door and Crimsafe window grilles so that you feel secure at home. Our guidelines – Would we fund it Housing and Community Infrastructure … explains the NDIS is responsible for supports to build your skills to help you live independently in the community and home modifications for private dwellings that is not social housing. As you currently reside in social housing, the request for a Crimsafe door and Crmsafe window grilles is the responsibility of the Department of Housing and therefore cannot be funded by the NDIS.
The Applicant continued to dispute the contents of his statement of participant supports. As noted above, he filed an application for administrative review of the CEO’s internal review decision with the Tribunal on 23 July 2024.
On 21 December 2023 a Planner delegate of the CEO decided pursuant to s 47A to vary the Applicant’s participant plan. A new participant plan was issued which was expressed to commence from that date and had a reassessment date of 21 December 2025.[18]
[18] Agency Bundle, Tab R02, pages 228–50.
The Applicant’s current statement of participant supports provides for the following funding:
(a)In core funding:
(i)Assistance with self-care activities, weekdays, 10 hours per week;
(ii)Assistance with house cleaning and other household activities, 2 hours per week;
(iii)Assistance with personal domestic activities, 3 hours pers week;
(iv)Assistance with access to community and social and recreational activities, 10 hours per week.
(b)In capacity building funding:
(i)Assessment recommendation therapy or training – counsellor, 1 hour per week;
(ii)Assessment recommendation therapy or training – other professional, 20 hours once over 24 months.
(c)Specialist behaviour intervention for 15 hours and behaviour management plan for 10 hours over 24 months;
(d)Support coordination (level 3), 2 hours a month over 12 months;
(e)Psychosocial recovery coaching, weekday, 48 hours per annum; and
(f)Recurring transport in a stated amount paid by fixed instalments fortnightly.
All supports referred to above are specified as “plan managed” with the exceptions of item (c) which is specified as “agency managed”, and “recurring transport” which is an automatic payment.
The requested supports
When this proceeding was in the alternative dispute resolution stream, a Conference Registrar directed the Applicant to notify the Agency and the Tribunal by 3 November 2023:
- Confirmation in writing of the supports the Applicant is seeking in this application for review, and where relevant the hours of support, days of the week support to be provided and level of support.
The Applicant did not respond to that direction which resulted in the Agency’s representative making further inquiries of him. In response to those enquiries the Applicant sent a profane and abusive email to the Agency and the Tribunal at 2:10pm on 6 November 2023 which contains various scandalous allegations and otherwise irrelevant material. What can be distilled from that email, however, is that the Applicant sought, at that time, to vary his participant plan to include the following requested supports:
(a)Funding for Crimsafe security grills and other home modifications;
(b)6-8 hours a day 7 days per week of additional funding for daily support worker assistance; and
(c)Funding for a personal trainer.
and to ‘plan manage my own support coordination funding’.[19]
[19] Agency Bundle, Tab A05, pages 50–1.
In a later email to the Agency and the Tribunal sent at 4:12pm on 15 January 2024, the Applicant provided further information in relation to his requested supports as follows:
In response to AAT directions
I require 5 x 1hour Personal Training sessions per week billed under the line item for Personal Training
Plus Physiotherapist appointments due to damaged body.
The proceeding continued on the basis that these were the variations the Applicant sought to his plan up to the commencement of the hearing.
However, at the hearing, in response to counsel for the Agency’s opening statement, the Applicant stated in his opening that he no longer requested any support from the Agency in relation to the installation of Crimsafe grills or home modifications.[20] I later took some care to confirm with the Applicant that this was now his position which resulted in the following exchange:
[20] Transcript Day 1, page 14, line 28–9.
MEMBER: One thing you might just clarify, sir. Are you no longer requesting any Crimsafe device? Is that what you ---
MR BONNICI: Correct
MEMBER: So that’s off the table?
MR BONNICI: Its off the table completely. Because I no longer feel safe in my housing home. I want to transfer from my unit.
MEMBER:All right. Thank you.
MR BONNICI: And that’s for a later stage.[21]
[21] Transcript Day 1, page 15, lines 20–32.
During questions from the Agency, the Applicant appeared at one point to resile from this position which required me to clarify the position with him again. That resulted in the Applicant confirming that he no longer requested supports being Crimsafe grills or home modifications.[22] I then made an order pursuant to s 25(4A) of the AAT Act determining the scope of the review to exclude consideration of home modifications as a requested support to avoid any doubt about the matter.[23]
[22] Transcript Day 1, page 44, lines 13–7.
[23] Transcript Day 1, page 44, lines 28–31.
The Applicant’s request for a variation to his participant plan to provide for support coordination to be Plan Managed was puzzling. His current participant plan already provides for this, as was confirmed by counsel for the Agency in her opening statement.[24] At the conclusion of the Applicant’s opening statement I asked him to clarify his position, which led to the following exchange:
MEMBER:The other thing I just wanted to be clear with you, sir, …. Is there no issue of plan management?
MR BONNICI: There is an issue of plan management.
MEMBER:What is the issue of plan management?
MR BONNICI: I have not met my planner. And I have made numerous attempts to connect with my planner, and that is not happening per the agency. I even contacted an outside agency called Latrobe Community Mental Health, or Latrobe Community Health, where I was told by the agency back in 2022 that that is now my planner. When I rang Latrobe Community Health, Latrobe Community Health told me that the planner is internalised within the NDIA agency. So its not an outside source. The planner is internal and no-one from the planning department has bothered to reach out to me with all of my numerous complaints about this current plan injuring me.
MEMBER:You tell me, do you, that your plan is agency managed.
MR BONNICI: It’s agency managed, 100 per cent. Its meant to be plan managed, but the planner is meant to be independent from the agency like it was in 2019. And then COVID happened and the agency decided to internalise all of that.
[24] Transcript Day 1, page 10, lines 40–4.
Later in his evidence the Applicant stated the following about his support coordination in response to questions put to him by counsel for the Agency:
And you rely upon a report of Stuart Fraser, support coordinator at Lifestyle Solutions dated 8 February 2023. So Mr Fraser was your support coordinator as at ---? No longer part of my supports.
Who is your support coordinator? --- There is no support coordinator. I have tried numerous agencies to get a level 3 support coordinator, which I’m approved for, the highest support coordination in the agency. And every time I ring up these support coordinator companies, organisations, they are completely overloaded with applications. They have no openings whatsoever. And I have called 50 companies for support coordination, still to no luck, which is now causing major harm to my management of my disabilities, my day to day function of my life.[25]
[25] Transcript Day 1, page 20, lines 30–45.
Upon consideration of the evidence, I am satisfied that the Applicant’s current participant plan provides for his support co-ordination funding to be plan managed. That is what the plan says, and that position was confirmed by counsel for the Agency. I have some difficulty understanding what the Applicant means when he complains he has ‘never met his planner’. He may mean the Agency planner delegate who considered his change of circumstances request, or he may be referring to a former support coordination arrangement that pertained during the COVID-19 pandemic (about which there is no other evidence before me). If it is the former, the delegate planner is not a support coordinator and is not incorporated into the Applicant’s participant plan. If it is the latter, any such arrangement was superseded in subsequent plans, including by the statement of participant supports that is the subject of this administrative review. The Applicant’s request for a variation of his statement of participant supports to include plan managed support coordination is therefore misconceived and will be dismissed on this basis.
It is of course of concern that the Applicant, having terminated his support coordination arrangement with Lifestyle Solutions (Aust) Pty Ltd, has been unable to find another provider willing (or with the capacity) to provide this support to him. However, that is a matter beyond the scope of this review.
Having regard to the above, the requested supports that are the subject of this administrative review are:
(a)Additional 6 – 8 hours per day, seven days per week, support worker assistance;
(b)Personal training – 5 one-hour sessions per week; and
(c)Physiotherapy, 48 one-hour sessions per annum (see following as to the number of sessions requested).
The evidence
Applicant’s oral evidence
The Applicant gave the following relevant oral evidence in relation to his current circumstances in his opening statement:[26]
i.The extended hours of support worker assistance are needed as a direct result of the trauma he has suffered in relation to legal proceedings related to traumatic events during his childhood that have resulted in his psychosocial disability;
ii.He is very socially isolated. He has no family contact and no friends. He does not want to make friends because he does not trust anyone other than support workers. Support workers are his only friends;
iii.He requires his support worker services to be around him for eight hours minimum every day. If he does not have that, he has nothing to live for;
iv.He has a deep fear of going outside his unit because he believes he might be murdered by persons involved with that entity that was responsible for his childhood trauma;
v.He experiences insomnia, disordered sleep, and panic attacks as features of his post-traumatic stress disorder.
[26] Transcript Day 1, page 12, line 15 to page 15, line 16.
In response to questions from counsel for the Agency, the Applicant gave the following further evidence:
i.Ms Tran last conducted an Occupational Therapy assessment of him on 22 December 2022 from which she produced her report dated 4 January 2023. This was a telephone assessment. Ms Tran’s practice, Better Rehab, no longer provides support to him because he terminated its services in or about March 2024 following an incident in which another Occupational Therapist, Ms M Hayes, who was involved in assessment of the Applicant, called NSW Police resulting in NSW Police attendance at his home for the purpose of a welfare check. Because he terminated Better Rehab’s services, Ms Hayes report was never completed;[27]
[27] Transcript Day 1, page 16, line 36 to page 19, line 20.
ii.Prior to consulting Mr Phan, Physiotherapist, on 28 November 2023 who produced a report dated13 December 2023, he had been refused physiotherapy services by other providers because he had chosen not to be vaccinated for COVID-19. After his initial consultation with Mr Phan, he saw Mr Phan for physiotherapy twice a week between 13 December 2023 and January 2024. However, in January 2024, Mr Phan went holidays and so ‘breached’ his obligation to provide two physiotherapy sessions a week, leaving him without physiotherapy. Consequently, he “fired” Mr Phan. He has not engaged another physiotherapist since;[28]
[28] Transcript Day 1, page 19, line 37.
iii.Mr S Fraser was his support coordinator in February 2023, but he is no longer, because he “fired him”.[29] He currently does not have a support coordinator;[30]
[29] Transcript Day 2, page 40, line 12.
[30] Transcript Day 1, page, 20, lines 30–45.
iv.He was taken to Mr Fraser’s “Coordination of Supports: Progress Report” dated 8 February 2023 and to the following statement on page 3 of that report:
I have found suitable support for David from a Counselling Psychologist that is close by for David, however he has been resistant wanting to wait until after he has seen his sleep specialist before seeing another practitioner.
He stated that he could not recall saying this to Mr Fraser.[31]
[31] Transcript Day 1, page 21, line 1; page 22, line 13 to page 23 line 24.
He was then taken to page 3 of Ms Tran’s report dated 22 December 2022 where she states:
Mr Bonnici reported that he has previously met with Psychologists for telehealth appointments however felt that this was unhelpful. Mr Bonnici reported that he does not wish to seek Psychology supports at present, as he does not feel it will help him with his symptoms and support needs.
He stated that he could not recall saying that to Ms Tran.[32]
[32] Transcript Day 1, page 23, lines 30–2.
He was then asked if he had attempted to see another psychologist since Mr Fraser and Ms Tran’s reports were written. In response to that question, he said the following:
[I] did … Last year in October, and I was kicked out on the first session, and the police were called to my door for a welfare check by the psychologist centre because I said that I am an antivaxxer in their office and they did not like that. They kicked me out. They cancelled all 10 sessions that were pre-booked for the following 10 weeks and they cancelled all of those.[33]
[33] Transcript Day 1, page 24, lines 32–9.
v.He did recall seeing Dr Banerjee, a sleep and cannabinoid physician on 2 February 2023. He agreed that Dr Banerjee had recommended cannabis as a treatment option in relation to his inability to sleep. However, he did not undertake the recommended course of treatment because he could not afford it. He said he asked the NDIS to pay for an item of equipment necessary for this treatment (a vaporiser) but this was refused;[34]
[34] Transcript Day 1, page 24, lines 1–26.
vi.He said that prior to moving to his current suburb in 2016 he attended on a psychiatrist in private practice, Dr K Roberts, in Bondi Junction. He last saw Dr Roberts in 2018. He stated the following in relation to the treatment he obtained from Dr Roberts:
He was absolutely fantastic. He was the best psychiatrist I ever had, and I showed results with this psychiatrist. I showed absolute progression in my mental health management from seeing him. When he retired I felt abandoned by the system. And then I also asked the NDIS for access to a psychiatrist on numerous occasions, and the NDIS said, “No, we do not fund psychiatry or specialist support. There we go.
Counsel then asked if he had seen a psychiatrist since 2018, which led to the following exchange:
Who’s going to pay for it? … No. I don’t want to. No one wants to help me get one.
Mr Bonnici, on that point, do you have a treating GP? --- No, I don’t.
Do you understand that, if you had a treating GP, your treating GP could refer you to the public mental health service? --- Okay, well, no, don’t insult my intelligence, Seriously. I have been on the mental health system prior to the NDIS. [allegations are made] … I distrust the mental health system and I distrust the medical system …
Mr Bonnici, if you can just answer my question. You understand that a GP could refer you to a psychiatrist in the public mental health system. You understand that, don’t you? --- I don’t want one. Nothing in the public health system. Thank you very much. I’ve tried than already… They were useless.[35]
[35] Transcript Day 1, page 25, line 4 to page, 26 line 4.
vii.He claimed to have an acquired brain injury diagnosed by Dr Woodgar. Counsel for the Agency put to him that the diagnosis he contended Dr Woodgar had made was in relation to Post Traumatic Stress Disorder. He denied that but the evidence he gave in relation to his ‘brain injury diagnosis’ was consistent with Post Traumatic Stress Disorder, not acquired brain injury;[36]
[36] Transcript Day 1, page 26, lines 4–36.
viii.In response to questions from counsel for the Agency in relation to whether he used psychiatric medication for the alleviation of his symptoms, he stated that in 2015 he had a ‘bad experience’ using Brintellex[37] medication which had been prescribed by his General Practitioner (he said he broke out in blisters). Because of that experience, he refuses to take medication for his mental health conditions ever again.[38] Dr Roberts attempted to prescribe him psychiatric medication when he was treating him, but he refused to accept it because he believed such medication was associated with the death of a family member;[39]
[37] Brintellix is used to treat major depression.
[38] Transcript Day 1, page 26, lines 38–46.
[39] Transcript Day 1, page 27, line 24 to page 28, line 4.
ix.He stopped seeing a General Practitioner, Dr Sivaseelan, in 2020, except for one later attendance to obtain a referral letter to Dr Banjerjee. He does not have a General Practitioner and does intend to obtain one because of the vaccine stance taken by General Practitioners:
I’ve barely seen Dr Siva. I’ve been isolating inside my home and not going to practitioners for help. I don’t trust the GP anymore after what they’ve done for COVID-19. They’re criminals too. 100 per cent;[40]
[40] Transcript Day 1, page 28, lines 28–47.
x.He has not engaged a behaviour support practitioner to help him develop behaviour management strategies. He believes his ‘planner’ and Support Coordinator should have done this for him;[41]
[41] Transcript Day 1, page 29, lines 1–23
xi.He is not currently undertaking any treatment for PTSD, depression, and general anxiety in the form of psychological counselling or medication. In response to questions from counsel for the Agency he accepted that his symptoms of these conditions were controllable but were currently uncontrolled.[42] He attributed responsibility for these circumstances as follows:
[42] Transcript Day 1, page 31, lines 1–35.
It's because I have been discriminated against by those services and they have not left me with a good feeling to call upon them again until I get a proper support coordinator, level 3. I’ve got to make phone calls to centres myself. I need a support coordinator to make these phone calls. I have made this very clear to the agency. It’s very stressful on me to discuss my own disabilities on the phone with practitioners, et cetera. That’s what the support coordinator is meant to do.[43]
[43] Transcript Day 1, page 31, lines 5–11.
xii.He attended an exercise physiologist on one or possibly two occasions in 2022 but did not continue with this because it was a group session of seven people which he could not tolerate due to agoraphobia. Counsel for the Agency took him to an email he had written to the Agency and the Tribunal on 6 November 2023 at 2:10pm, which included the following passage:
I want PERSONAL TRAINING FUNDING – I’m not going to a disabled Exercise Physicist when I’m surrounded by other disabled people … I’m much more better looking than those physically challenged individuals both in and out of wheelchairs.[44]
[44] T-documents, Tab D, page 51 of 58.
He initially denied that he was the author of that email, then said he sent it while intoxicated so he was not responsible for it, then appeared to agree that he had sent it and that it meant that he could not attend group exercise classes due to agoraphobia.[45]
[45] Transcript Day 1, page 32, line 24 to page 35, line 3.
xiii.He could not recall advising Ms Tran on 22 December 2022 that he did not want to explore physiotherapy because of his agoraphobia;[46]
[46] Transcript Day 1, page 35, line 16 to page 36, line 26.
xiv.He denied advising Ms Tran on 22 December 2022 that he had attended personal training sessions at Plus Fitness in Peakhurst. He stated that he could not undertake personal training at that time because his request for NDIS funding for this had been refused;[47]
[47] Transcript Day 1, page 38, lines 4–24; page 38, line 40 to page 39, line 7.
xv.He agreed that he does little exercise, including not walking. He stated that this was in part because he was unable to use gym equipment that had been funded by the NDIS and had injured himself attempting to do so;[48]
[48] Transcript Day 1, page 38, lines 26-38.
xvi.He currently has one support worker, Mr Shah. He “fired” another support worker in January 2024 because he believed that person stole his wallet. In response to questions from counsel for the Agency, he first stated he did not know how many hours of support he had utilised in the last week. When pressed he then said in a provocative manner addressing Mr Shah:
I was pretty sure it was eight hours a day every day, but then some days were 13, right, or 11. Some days were 11 because I was having bad experiences last week leading to this…[49]
[49] Transcript Day 1, page 39, lines 16–30.
xvii.He is currently doing “zero” tasks and activities in the community. He refused to confirm if he had told a NDIS planner on 24 May 2023 that he had a disability support worker that was on-call when needed, and that that person ‘just kept him company at home.’ Counsel for the Agency asked him to identify what appointments and activities in the community Mr Shah assisted him to undertake, but he refused to answer, other than to say Mr Shah ‘carried’ him to the hearing, and also attended tenancy proceedings in which he is involved in the NSW Civil and Administrative Tribunal with him.[50] He then went on to state:
My support worker is my friend, my only friend, and my support worker comes everywhere with me. When I am dropped back at home by my support worker and that support worker ends after 8 hours, I am locked indoors. I cannot go out by myself. I cannot control myself by myself. I need support beside me. And you would also be aware that there’s been several keys that have been missing and I have lost my keys with my unit and the NDIS has paid for the locksmith to let me back in; multiple times with the locksmith, and that’s the reason why I need people with me, because, if I go out by myself I lose my keys. I lose my wallet. I lose money and new stuff because I cannot control myself.[51]
xviii.He agreed that he was able to shower independently. However, he stated that he does so infrequently because the bathroom was the site of a traumatic event during childhood. It was then put to him that he was able to cook independently which led to the following exchange:
Now, you reported to Ms Tran that you were able to cook stews, casseroles and pasta. Is that correct? --- Not anymore.
…
My disabilities have now become unmanageable alone. They have worsened. My disabilities have worsened with the lack of support services ….
So is it your evidence that you’ve lost the functional capacity to prepare meals for yourself? --- All of it. Washing dishes, everything. And if I don’t see my support worker every day the place gets completely messed up. If I don’t see my support worker every day I don’t hang out the washing. I don’t even take it out of the washing machine at all. I’ll wash 20 times in the one week, just one load, just keep washing it. And that’s another reason I don’t feel safe outside. I mean I’ve had my clothes stolen from the line, inside the housing complex, multiple times.[52]
xix.He denied that his failure to complete personal hygiene and daily living tasks resulted from amotivation. He claimed this was because he did not “feel safe”. The following exchange provides one example:
It’s not low motivation. I don’t feel safe. Please stop trying to make it sound like its an issue with being motivated.
What is unsafe, Mr Bonnici, about putting clothes in the washing machine? --- I don’t feel safe. It’s inside of my acquired brain injury. I no longer feel safe inside my brain.[53]
[50] Transcript Day 1, page 40, line 1 to page 42, line 1.
[51] Transcript Day 1, page 42, lines 5–15.
[52] Transcript Day 1, page 43, lines 15–31
[53] Transcript Day 1, page 44, lines 1–8.
As noted above, the Applicant stated at the hearing outset that he no longer relied upon the reports written by Ms Tran, Mr Phan, Ms Smith, and Mr Fraser because he had “fired” them.[54] Nevertheless, these reports are in the T-documents and are the only real evidence that is before me in support of the Applicant’s case. It is therefore appropriate that I consider them. In doing so, I bear in mind that the Agency required the Applicant to offer Ms Tran, Mr Phan, and Ms Smith as witnesses, but he did not do so. This evidence is therefore untested and in key respects unexplained. This adversely affects the weight that can be given to it.
[54] Transcript Day 1, page 2; see also page 40, lines 12–5.
Tran report
Ms Tran is an Occupational Therapist. She conducted a functional capacity “reassessment” of the Applicant on 22 December 2022 and produced a report from that assessment which is dated 4 January 2023.[55] Ms Tran had previously undertaken a functional assessment of the Applicant which included a home visit. The reassessment was initiated on referral from the Applicant’s then Support Coordinator. It was conducted by telephone. The Applicant declined a home visit. The purpose of the reassessment is stated as follows:
The purpose of this report is to:
. Provide an overview of Mr Bonnici’s current functional capacity;
. Provide a summary of Occupational Therapy intervention provided to date;
. Provide recommendations for any further Occupational Therapy intervention required, regarding the review and approval of Mr Bonnici’s next NDIS plan;
. Provide any other recommendations regarding additional supports to be considered in the generation of Mr Bonnici’s next NDIS plan.
[55] Agency Bundle, Tab T3, pages 16–40.
In the section of her report titled “Overview of current function” Ms Tran records the following observations (in summary):
Mobility
The Applicant was able to mobilise within his home and the community with nil aids or difficulty.
Transfers
The Applicant is independent with all functional transfers, including sit-to-stand, bed transfers, shower transfers, toilet transfers, and car transfers.
Self-care (showering, toileting, dressing, grooming, feeding)
The Applicant was previously independent with all self-care activities when receiving consistent psychiatric treatment from an appropriate support network (GP in Kensington, St Vincent de Paul drug and alcohol services, Psychiatrist, Keith Roberts)
Since moving to [suburb] the Applicant has not re-engaged any supports and has not been able to develop an appropriate formal support network. As a result the Applicant’s self-care has regressed due to an exacerbation of his symptoms.
The Applicant reported showering approximately one every five days.
The Applicant reported being able to toilet and feed himself independently and without difficulty.
The Applicant reported changing his clothes approximately every five days when he showers. He experiences ‘extremely reduced’ motivation.
The Applicant reported more consistent brushing of his teeth with baking soda and performs saltwater gargles.
Sleeping
The Applicant reported disrupted and irregular sleep due to vivid and repeated dreams and traffic noise.
Communication
The Applicant was able to communicate without difficulty but has a tendency to be tangential, which required prompting.
Domestic tasks (meal preparation, laundry, housework, financial management)
The Applicant reported being able to cook stews, casseroles, and pastas in one pot and eating the same meals for several days. He reported low motivation for meal preparation and dish washing. He reported throwing away cutlery and crockery rather than wash it. He reported spending most of his money on alcohol rather than food.
The Applicant reported low motivation to do laundry. He reported leaving his washing in the washing machine for days and putting the same clothes through multiple washing cycles. He reported being apprehensive about leaving his unit to put washing on the clothesline. Instead, he draped clothing in the interior of the unit.
At the initial assessment, the Applicant’s unit was observed to be cluttered, with rubbish and possessions left on the floor and around the unit. The Applicant reported that this continues to be the case. The Applicant would like assistance with cleaning and maintenance of this unit.
The Applicant spends most of his income on cigarettes and alcohol. He does not make sufficient provision for food or for the payment of his rent.
Community Access
When he lived in the eastern suburbs with supports, the Applicant regularly accessed the community to attend appointments and shop for groceries. He also regularly rode his bike and attended a gym. However, he reported that since moving to his current home he only leaves the house to purchase groceries and alcohol. He reported previously being able to use public transport but no longer being able to do so due to agoraphobia and the exacerbation of other PTSD symptoms. He is now driven by his support worker in his support worker’s car. He reported leaving his house in the early morning to avoid crowds.
Mood
The Applicant reported fluctuations in mood which was dependent on his level of intoxication. He reported a history of verbal aggression when intoxicated which has impacted on his relationships with support workers.
Behaviours
Due to an exacerbation of his mental health symptoms, the Applicant will occasionally become verbally aggressive, which has resulted in him being banned from mental health helplines and affected his relationships with support workers. The Applicant has also previously carved holes in the walls of his unit using pliers and a hammer. He has spray painted profanities on the walls inside and outside his home. The Applicant drinks up to 30 beers a day to cope with his mental health problems and to avoid flashbacks and thoughts related to his trauma.
The Occupational Therapy input Ms Tran provided in the context of the Applicant’s then NDIS participant plan involved providing supporting documentation to assist him to obtain low-cost assistive technology, being exercise equipment, a speaker to allow use of music as a regulation strategy, a mobile phone to contact mental health helplines, and an iPad to enable him to attend telehealth appointments.
Ms Tran applied the information she obtained from the Applicant against four assessment scales, being the Lawton Instrumental Activities of Daily Living Scale (Lawton Scale), the Care and Needs Scale (CANS), the Abbreviated Life Skills Scale (LSP-16), the Depression, Anxiety and Stress Scale (DASS-21), and the World Health Organisation Disability Assessment Schedule (WHODAS 2.02). In short summary, Ms Tran concluded that the Applicant had high levels of functional impairment across all life activity areas measured against these scales. Specifically, she opines as follows based on those instruments:
- The Applicant received a score of 4 out of 8 on the Lawton Scale, with most scores indicating that he requires support to complete instrumental activities of daily living, particularly due to reduced intrinsic motivation and avolition, agoraphobia and poor self-regulation. He would benefit from increased support worker assistance with housing keeping, meal preparation and community-based activities, and psychology and positive behaviour support to explore alternative strategies for redirection and symptom management;
- The Applicant received a score of 4.3 on the CANS Scale (Level 4). Level 4 of the CANS Scale is associated with the following support needs indicators:
Length of time that can be left alone Can be left alone for part of the day and overnight.
Care/Support required Needs support each day (up to 11 hours) for assistance, supervision, direction and/or cuing for occupational activities, interpersonal relationships and/or living skills.
The Applicant demonstrates impaired executive functioning and reduced intrinsic motivation. He would benefit from an increase in formal supports to facilitate ongoing independence and engagement in both self-care and instrumental activities and social participation. Without this additional support the Applicant will continue to regress;
- The Applicant received a score of 39 out of 48 on the LSP-16 Scale which indicates significant presence of disability impacting on his engagement in daily activities, particularly in terms of social withdrawal and isolation, poor self-care, and antisocial behaviour;
- With respect to the DASS-21 Scale, the Applicant received a depression score of 19 indicating “extremely severe” impact, an anxiety score of 17, which also indicates “extremely severe” impact, and a stress score of 14 indicating a “severe” impact. He would greatly benefit from ongoing intervention from a psychiatrist or psychologist to manage symptoms. Without such assistance his function will not improve and is likely to regress;
- The Applicant scored 65.97% overall on the WHODAS 2.0 scale which indicates a “moderate” presence of disability. The items the Applicant was scored to experience the most difficulty with included: ‘understanding and communicating’; ‘life-activities’ (household tasks), and ‘participation in society’.
In relation to the requested supports that are before me in this administrative review, Ms Tran states the following under the heading “Occupational Therapy Recommendations”:
1. Improved Health and Wellbeing Funding
OT Tran opines that Mr Bonnici would highly benefit from provision of Improved Health and Wellbeing Funding, to support his engagement in increasing his activity levels, with appropriate supports in place to develop and implement a personalised exercise program. OT Tran has educated Mr Bonnici on the supports that can be delivered utilising his NDIS funding, including Exercise Physiology and Physiotherapy. Mr Bonnici reported that he has previously engaged with Exercise Physiologists and reported that their services have not been helpful. Mr Bonnici is not currently allowing therapists to enter the home and he has difficulties traveling to areas outside his local vicinity due to anxiety symptoms associated with his diagnosis of agoraphobia. As a result, Mr Bonnici has declined to further explore Exercise Physiology and Physiotherapy services.
As such, Mr Bonnici has advised that he would like to attend personal training sessions at Plus Fitness [suburb], which is 260m from Mr Bonnici’s home. Mr Bonnici reported that he has met and built a rapport with a personal trainer at Plus Fitness and Mr Bonnici has demonstrated motivation to engage in personal training services with this personal trainer. Attendance of exercise program with a personal trainer is anticipated to allow Mr Bonnici increased opportunities for social participation and engagement in exercise. Without this support, Mr Bonnici is unlikely to engage in exercise and will continue to experience social isolation, which is anticipated to negatively impact his well-being and motivation.
Evidence has indicated that physical activity contributes to improving an individuals’ self-esteem, self-acceptance, and self-efficacy, and assists with reducing amounts of reported depression, anxiety and stress (including Post-Traumatic Stress Disorder) … Anaerobic exercise is generally believed to have mood boosting effects when performed at high intensities, to promote build-up of lactate and lactic acid in muscles, with which releasing of beta-endorphins are associated …. As such exercise provides Mr Bonnici with an appropriate means to manage symptoms in a more positive manner, and Mr Bonnici would benefit from engagement with appropriate supports to improve his independence and implementing an exercise program.
…
3. Increased Support Worker Assistance
OT Tran is in recommendation of increased support worker assistance to facilitate improved engagement in daily self-care, domestic and community-based activities. This support is required to enable Mr Bonnici to complete basic activities of daily living and to complete skill development in activities of daily living in practice, including improved participation in self-care activities, domestic cleaning and meal preparation tasks. This assistance is also required to ensure Mr Bonnici (sic) increased opportunities to access the community for leisure and skill development. Mr Bonnici currently has no other means of accessing the community outside of transport with his support worker. As such, Mr Bonnici is unable to complete these tasks independently due to his diagnosis of Post Traumatic Stress Disorder and agoraphobia and requires assistance.
…
Phan report
Mr Phan is a physiotherapist. He conducted a physiotherapy assessment of the Applicant on the Applicant’s self-referral on 28 December 2023.[56] The purpose of this assessment is described as follows:
The purpose of the assessment was to assess Mr David Bonnici’s functional capacity and therapy input to date to determine the ongoing supports required to continually assist in the achieving of Mr Bonnici’s goals.
[56] T-documents, Tab A05, page 210–3.
The salient elements of Mr Phan’s report are set out in the following extracts:
Medical history and diagnosis
…
He has experienced various secondary physical impairments arising from his mental health conditions. Simultaneously, his mental well-being is intricately linked to the proper management of these secondary physical impairments. Mr Bonnici currently suffers from the following:
. chronic pain and fatigue
. loss of global strength
. reduction in joint range of motion
. difficulties with general mobility and sustained physical activities
. widespread muscle spasms associated with weakness and sedentary lifestyle
Some of the contributing factors to Mr Bonnici’s persisting problems include:
. Limited daily social participation and activities
. Excessive time spent at home in sedentary manner (deconditioning)
. Irregular and infrequent access with Allied health professionals
. Nil/limited access to local gym/fitness club (supervised and unsupervised)
. poor sleep hygiene and ultimately, recovery
Despite Mr Bonnici’s conditions and impairments, he still retains the ability to carry out his ADLs independently. He requires ongoing support with transport, social participation, and domestic duties.
…
Objective findings and function:
Cervical spine: There is widespread muscular stiffness affective the para-cervical muscles (multifidus) and scapular musculature (levator scapular, upper trapezius, SCM). Stiffness is noted with movements, particularly rotation and lateral flexion. There is joint stiffness and pain reproduction over C2/3 junction and C7 midline and associated facet joints.
Bilateral shoulders: There is sound shoulder mobility (80-90%) in all ranges, however, there are positive infringement signs for both shoulders (painful arc, Hawkins-kennedy), particularly with abduction and internal rotation. There is weakness with elevation, resisted pushing/pulling and with lifting/carrying. He reports intermittent night time pains depending on the level physical exertion through the day.
Thoracic and Lumbar spine: There is widespread para-vertebral muscle stiffness, particularly along the spinal erectors and quadratus lumborum. There is associated joint stiffness, particularly around the mid-thoracic region, associated with prolonged sedentary and static position.
Left hip: There is a global reduction in joint range of motion, particularly internal (25%) and external rotation (50%) when comparing to the right hip. There is a positive FADIRs, suggestive of impingement and joint arthropathy. There is weakness in the deep hip rotators/stabilisers compared to the right hip.
Bilateral knee: There is sufficient bilateral knee range of motion in non-weight bearing (90% flexion bilaterally), however, on weight bearing, his squatting range of motion is limited to 50-60% limited by pain. There is a crepitus with weight bearing, mobilising (sit to stands) and twisting movements (pivoting on leg).
RECOMMENDATIONS & GOALS
Based on the assessment findings reported above, the following recommendations were discussed with Mr David Bonnici and carer at time of assessment.
Patient goals:
. restore independence and reduce difficulties with activities of daily living.
. increased time spent outside of home to focus on social integration with the community and to reduce prolonged sedentary lifestyle/activities.
. Engage with Allied health and fitness professional on a regular basis to manage and reduce physical impairments
Physiotherapy recommendations:
The following approaches under physiotherapy will assist with the impairments highlighted above:
. supervised graded exercise program and home based exercise program
. acute pain management strategies including mobilisation (soft tissue, joint), electrophysical modalities, and therapist assisted stretching.
. Education addressing activity and lifestyle modifications to reduce impact of aggravating factors, goal setting, and general understanding of patient’s conditions.
Prescription of assistive and exercise equipment for self-management.
…
Small report
Ms Small is a Social Worker. She undertook what she describes as a “biopsychosocial assessment” of the Applicant on 3 March 2023 in the context of legal proceedings in another place.[57] The report references those proceedings, and the housing modifications originally requested in this administrative review but no longer pursued. It contains limited information relevant to this administrative review. The relevant information is contained in the following extracts:
Exercise, Sleep and Diet
David reports that he does little to no exercise. He would like to see a Personal Trainer and change this as he feels this would be a healthy coping mechanism to alleviate his existing mental health problems. David’s diet is also not very rich in nutrient dense foods … David’s primary problem is in relation to poor sleep quality. He reports that he gets up to 5 hours sleep on any given night. …
Substance use
[D]avid’s current presenting substance abuse problem is in relation to alcohol. David reports drink [sic] 24-30 cans a day as a way of coping and escaping his reality. David has insight into the effect this consumption has on his overall wellbeing and finances ….
Strengths and Stressors
David reports not having any strong interpersonal relationships. He is often isolated due to his agoraphobia and has a general distrust of people. His primary interaction is with his support workers …. David reports having a turbulent relationship with service providers at times due to verbally aggressive behaviour and agitation stemming from trauma.
…
[57] Agency Bundle, Tab T7, pages 50–4; there is a further letter in support of these requested home modifications authorised by Ms Small at T-documents, Tab T13. As this requested support is not pressed, this letter is also no longer of relevance in this review.
Fraser Report
Mr Fraser is the Applicant’s former Support Coordinator. He produced a “Coordination of Supports: Progress Report” which is dated 8 February 2023.[58] The report assesses plan outcomes up to that date against the goals stated in the Applicant’s statement of goals and aspirations. It states relevantly:
[58] T-documents, Tab T6, pages 47–9.
[Re Goal 1]
Expected outcomes
To be open to receiving suitable supports and be open to making a positive and healthy change [sic] everyday life through diet, exercise and overall well-being.
Progress
It has been very difficult for David to achieve this goal. David’s level of trust with others requires extensive work with practitioners to support building trust with the wider community in the same space as David at any given time. The facilities that David has accessed when working with Exercise Physiologists in the past has greatly exacerbated his Agoraphobia and the additional trust issues he perceives with the broader community and other individuals in his immediate vicinity when out of his home.
David’s trust issues and paranoia about medications and practitioners make it very difficult to engage him with supports required, in particular, his use of alcohol as his preferred medication to deal with his constant thoughts of his past trauma have had a significant impact upon engaging David with appropriate services for health and wellbeing
[Re Goal 2]
Expected outcomes
To be open to seeing a suitable allied health professional and implement any strategies provided when at home or out in the community.
Progress
Ongoing – David will need ongoing support and encouragement to see practitioners that can assist him with this goal.
[Re Goal 3]
Expected outcomes
To be open to receiving suitable supports and be open to having the supports enter the home and engaging with them to make a positive change in routines and day to day life.
Progress
Ongoing – David will need ongoing support and encouragement to see practitioners that can assist him with this goal. Whilst some supports have been able to enter David’s home, this has only been possible with those he [sic].
[Re Goal 4]
Expected outcomes
To be open to new experiences and when out in the community and be open to having the supports to assist [sic]
Progress
Ongoing – David will need ongoing support and encouragement to see practitioners that can assist him with this goal. …
[Re Goal 5]
Expected outcomes
To be open to being around new people, implementing strategies to learn how to make and maintain friendships.
Progress
Ongoing – David will need ongoing support and encouragement to see practitioners that can assist him with this goal.
[Re Goal 6]
Expected outcomes
Access support to improve my symptoms and increase productivity.
Progress
David has had difficulty engaging with Counsellors and Psychologists. His lack of engagement stems from his experiences with the telephone support David reaches out to on a regular basis. Due to David’s Complex PTSD and Trauma a number of external factors relating to control and the perceived control of others/Government on David’s life, intrude upon his thought patterns as he seeks support. Thus, topics change for him and this fluid thought process results in the supports seeing David as moving off topic and outside their guidelines and subject for support.
I have found suitable support for David from a Counselling Psychologist that is close by for David, however, he has been resistant wanting to wait until after he has seen his sleep specialist before seeing another practitioner.
…
Additional comments
…
Whilst it has been extremely difficult for David to engage with Psychosocial supports to assist with his mental health and wellbeing David has expressed an interest and willingness to engage in physical exercise that has a demonstrable positive effect upon his disability. David has stated that the current plan supports for Exercise Physiology and similar supports are not suitable, due to the enclosed spaced used and number of people that will be in proximity are trigger events for David. It is asked that the NDIA consider the Dignity of Risk in this instance, in favourably considering David’s requires for the use of a Personal Trainer … replacing the current Exercise Physiologist funding, in order to effectively improve David’s sense of wellbeing and emotional regulation. In this instance, should David be unable to access a service that will have such clear positive impact upon his disability and recovery, it will present a significant and ongoing risk of harm to David’s mental and physical health
The access to a Personal Trainer in this instance will reduce the risk of harm and enhance David’s mental well-being and further encourage engagement with Psychological Services and Occupational Therapies to enhance David’s functional capacity overall.
Dr Verma’s evidence
The Agency called as an independent expert witness Dr N Verma who is a Consultant Psychiatrist and Occupational Physician. Dr Verma’s qualifications and experience is set out in a Resume which appears at Tab R07 of the Agency’s Bundle. It evidences extensive experience working both in psychiatry and as an occupational physician. Those qualifications and experience were elaborated at the start of Dr Verma’s oral evidence.[59] The Applicant made repeated objections to Dr Verma appearing as a witness on the basis that he was not a qualified physiatrist.[60] I reject that assertion. I accept Dr Verma has the qualifications and experience set out in his resume. On page one of his report dated 14 May 2024 Dr Verma states that he is familiar with and considers himself bound by the obligations of an expert witness. He confirmed that at the start of his oral evidence.[61]
[59] Transcript Day 2, page 49, line 9 to page 50, line 19.
[60] Transcript Day 1, page 12, lines 19–20; page 37, lines 3–6.
[61] Transcript Day 2, page 49, lines 1–7.
Dr Verma was briefed with a range of documentary materials including the Applicant’s participant plan the reports the Applicant had provided to the Agency in support of his requested supports (the Tran, Phan, Small and Fraser reports). The Agency also briefed Dr Verma with targeted questions. The Applicant was requested to attend a consultation with Dr Verma, but he refused to do so.
The opinion Dr Verma sets out in his report may be summarised as follows:[62]
[62] I adopt this summary from the Agency’s Statement of Facts, Issues and Contentions, paragraph 42.
i.He considers the current level of support worker support of 25 hours per week is “satisfactory and very reasonable in terms of balancing the supports provided to [the Applicant to] assist him with activities of daily living within the house, as well as allowing him to engage outside the house socially and with treatment providers;”
ii.The Applicant has anxiety-based disorders and a key factor in the perpetuation of anxiety symptoms in particular is that anxiety is “enabled” (in the sense of exacerbated) by the supports provided;
iii.Whilst supports are necessary in the Applicant’s case, they need to be balanced in terms of hours of support provided and the type of support because excessive supports can result in enabling anxiety;
iv.The current level of support is a good balance between provision of assistance and not enabling anxiety by providing excessive supports;
v.The level of support requested by the Applicant would mean supports for 8 hours per day. This amount of support would mean he would not have the ability to gain mastery of his anxiety;
vi.In relation to “indoor domestic tasks and self-care” the Applicant is able “to do this himself, but simply lacks motivation”;
vii.The provision of excessive support of 7 – 8 hours per day will markedly enable the Applicant’s anxiety, in particular, worsening his Generalised Anxiety Disorder and PTSD;
viii.Having excessive supports will mean that the Applicant will never be able to achieve his medium to long term goals of trying new things, feeling more comfortable with people he does not know, and creating and maintaining friendships;
ix.The requested support of 56 hours per week has the disadvantage of worsening the Applicant’s anxiety-based symptoms leading to the support being provided over a longer and indefinite period. If excessive hours of support assistance are provided, then dependency will increase;
x.He disagrees with Ms Tran’s recommendation of 11 hours per day support because it is excessive.
Section 209 of the NDIS Act provides that the Minister may, by legislative instrument, make rules called the National Disability Insurance Scheme rules prescribing matters required or permitted by the Act to be prescribed in the rules or necessary and convenient to be prescribed to carry out or give effect to the Act.
Section 35 sets out the matters that may be contained in the National Disability Insurance Scheme Rules in relation to a statement of participant supports. It provides, relevantly:
35National Disability Insurance Scheme rules for statement of participant supports
(1)The National Disability Insurance Scheme rules may make provision in connection with the funding or provision of reasonable and necessary supports or general supports, including but not limited to prescribing:
(a)methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding, the reasonable and necessary supports or general supports that will be funded or provided under the National Disability Insurance Scheme; and
(b)reasonable and necessary supports or general supports that will not be funded or provided under the National Disability Insurance Scheme; and
(c)reasonable and necessary supports or general supports that will or will not be funded or provided under the National Disability Insurance Scheme for prescribed participants.
(2)The National Disability Insurance Scheme rules referred to in subsection (1) may relate to the manner in which supports are to be funded or provided and by whom supports are to be provided.
…
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (NDIS (Supports for Participants) Rules; the Rules) are made for the purposes of ss 33 and 34 pursuant to s 35 of the Act. The Rules “supplement and inform the way the criteria in s 34 need to be considered”.[91]
[91] WRMF at [221].
Part 1 of the Rules explains what the Rules are about, having regard to the overall objects and policy of the NDIS Act. Part 2 provides an outline of the Rules.
Part 3 of Rules prescribes specific Rules in relation to some of those mattes specified by s 34 of the Act. Those that are relevant in this review are set out following:
Value for money
3.1In deciding whether 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, the CEO is to consider the following matters:
(a)whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c)whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance upon more costly supports);
(d)for supports that involve the provision of equipment or modifications:
(i)the comparative cost of purchasing or leasing the equipment or modifications; and
(ii)whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e) Whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the areas in which the participant resides;
(f)whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
Effective and beneficial and current good practice
3.2In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a)published and referred literature and any consensus of expert opinion;
(b)the lived experience of the participant and their carers; or
(c)anything the Agency has learnt through delivery of the NDIS.
3.3In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary, seek, expert opinion.
…
Supports appropriately funded or provided through the NDIS
3.5 Schedule 1 sets out matters for the CEO to have regard to in considering whether supports are most appropriately funded or provided through the NDIS, rather than through other service systems (service systems is defined in paragraph 6.4).
3.6The matters to have regard to are set out under the following headings in the Schedule:
…
(b)Mental health
…
3.7Where particular supports are set out in the Schedule as being appropriately funded or provided through the NDIS, the CEO must still be satisfied of a number of other matters in order for the supports to be funded or provided (see paragraphs 2.3(a)-(e) of these Rules and paragraphs 34(a)-(e) of the Act)
Part 5 of the Rules set out some general criteria in relation to supports and specifies certain supports that will not be funded or provided. Relevantly, it provides:
General criteria for supports
5.1 A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
…
…
Schedule 1 of the Rules sets out certain consideration relating to whether supports are most appropriately funded through the NDIS. It provides, relevantly to this review:
Schedule 1 Considerations relating to whether supports are most appropriately funded though the NDIS
7.1The Act limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems …
7.2The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system
…
Mental health
7.6The NDIS will be responsible for supports that are not clinical in nature and that focus on a person’s functional ability, including supports that enable a person with a mental illness or psychiatric condition to undertake activities of daily living and participate in the community and social and economic life.
7.7.The NDIS will not be responsible for:
(a)supports related to mental health that are clinical in nature, including acute, ambulatory and continuing care, rehabilitation/recovery; or
…
(d)supports relating to a co-morbidity with a psychiatric condition where the co-morbidity is clearly the responsibility of another service system (eg treatment for a dug or alcohol issue).
Each of the requirements of s 34(1) and the Rules must be satisfied for a requested support to qualify as a reasonable and necessary support. If the Tribunal is not positively satisfied that any one of the criteria in section 34(1) of the Rules is met in relation to a requested support, then the Tribunal must find that that support is not a reasonable and necessary support for the purpose of the NDIS Act.
The Applicant does not bear any formal onus of proof to establish that his requested supports are reasonable and necessary. Nevertheless, he claims a public benefit which will only be available to him if the statutory requirements of ss 33 and 34 of the Act and the associated Rules are met.[92] He therefore bears a practical onus of putting forward, or drawing attention to, material that persuades or satisfies the Tribunal that those criteria are met. If he fails in that task, he cannot succeed.[93]
Consideration
[92] Beezley v Repatriation Commission [2015] FCAFC 165 (2015); 150 ALD 11 at [68].
[93] HPSC and National Disability Insurance Agency [2021] AATA 727 at [85].
Preliminary observations
The policy that underpins the Act in general, and participant plans specifically, places major emphasis on the values of agency, choice, and control of a participant in the designation of their goals and aspirations and in the selection of the supports that will assist in achieving them. That is a consideration that must be given great weight when considering the Applicant’s requested supports.
Nevertheless, those autonomy related values are co-extensive with other values with which they must work in harmony. In the circumstances of this case those that are necessary to highlight are the values of social and economic participation, social inclusion, and the independence of participants (as distinct from dependence). Those values must be given equivalent weight in considering the Applicant’s requested supports.
To the extent that there is any tension between these value clusters, General Principle 4(11) provides guidance as to how that tension is to be resolved in a statement of participant supports. Reasonable and necessary supports should enable participants to achieve their goals in a manner that maximises their independence and supports them to be included in the community as fully participating citizens. At a high level of generality, a requested support would therefore not be reasonable and necessary for the purposes of ss 33 and 34 if it did not support a participant to be independent and included in the community, even if it otherwise related to a participant goal.
The NDIS is a transformative service system for participants. But is not a panacea. It is not a substitute or alternative for other general systems of support, including mental health care and treatment, as is clear from s 34(f) and Rules 3.5, 3.6, 7.6 and 7.7. The NDIS is designed on the assumption that a participant will maintain access to general support systems or improve their access to those systems with NDIS supports (see ss 3(3)(d), 4(14)). That is not only a social participation and inclusion related value, but also one that is necessary for the financial sustainability of the NDIS (ss 3(3)(a) and 4(17)).
It follows from this that there will be cases, such as the present case, where the efficacy of a participant plan will be compromised if a participant does not obtain and maintain clinical mental health care from the general mental health system as a foundation for the support that is provided to them under the NDIS.
In this respect, I make the following findings in relation to the broader context in which the Applicant’s requested supports are to be considered:
(a)the Applicant has major mental health conditions but has not consulted a psychiatrist since 2018, when Dr Roberts retired;
(b)when he was under Dr Robert’s care, Dr Roberts recommended the Applicant accept a prescription of psychiatric medication to assist in the control of his mental health symptoms, which the Applicant refused;
(c)the applicant is not currently prescribed any anti-depressant or anti-psychotic medication for the control of his mental health symptoms. At some stage in the past a General Practitioner prescribed him Brintellix, an anti-depressant, which was (reportedly) ceased due to an adverse side-effect. No alternative antidepressant has been prescribed since then due to the Applicant’s aversion to psychiatric medication;
(d)the Applicant does not currently, and has not for some time, consulted a psychologist. He thus does not receive psychotherapeutic support, such as Cognitive Behavioural or Dialectical Behaviour therapy for the management of his mental health symptoms, both of which are standard forms of treatment for his conditions. It appears that at some time in 2023 he obtained upon referral from a General Practitioner a Mental Health Care Plan which involved 10 sessions with a psychologist. However, that could not be implemented because the Applicant is a ‘COVID-19 Anti-vaxxer’ and was not permitted to remain on the provider’s premises;
(e)it is the Applicant’s own evidence that his mental health symptoms are not controlled. While this proceeding has been before the Tribunal, and during the hearing, the Applicant has displayed extreme emotional and behavioural dysregulation;
(f)the Applicant does not have any ongoing relationship with a General Practitioner. He claims not to have consulted a General Practitioner since early 2023;
(g)the Applicant’s alcohol dependence disorder is acutely active. He reports drinking up to 30 cans of beer (≈11.25 litres) per day. He is not engaged with any drug and alcohol rehabilitation provider and does not appear even contemplative in this regard.
The Applicant’s requested supports must also be considered in the context of the Applicant’s current and recent participant plans, and their efficacy. I will deal with considerations specific to the requested supports following. Additionally, I make the following more general findings:
(a)the Applicant’s statement of participant supports includes provision for 24 hours of Level 3 Support Coordination: Specialist Support Coordination’ per year, but he does not currently have a Support Co-ordinator. He “fired” his last Support Coordinator, and he reports that no other agency he has approached is willing or has the capacity to perform this role;
(b)the Applicant’s statement of participant supports includes provision for 50 hours per year of ‘psychosocial recovery coaching’,[94] but there is no evidence as to how this support has been utilised, if at all;
(c)the Applicant’s statement of participant supports includes provision for the development and monitoring by a behaviour intervention specialist of a behaviour management plan which is stated to be for the purpose of ‘helping him to develop behavioural management strategies to reduce behaviours of concern and improve his quality of life’.[95] That funding has not been utilised;
(d)In the context of his funded supports, the Applicant has impulsively terminated his relationship with Ms Tran’s practice, Mr Pham, his Support Coordinator (Lifestyle Solutions (Aust.) Pty Ltd; Mr Fraser), and his exercise physiology provider due to perceived slights and inadequacies. He has also “fired” disability support workers allocated to him because of actual or perceived wrongdoing by them. He has terminated the services of general support providers, Ms Small (his Social Worker) and his former General Practitioner Dr Sivaseelan. He frequently acts in a verbally abusive and threatening manner to treating professionals and support workers, sometimes while affected by alcohol. He has been unable to sustain any of these relationships;
(e)An objective reading of Mr Fraser’s 8 February 2023 support coordination “progress report” indicates that the Applicant’s participant plan had extremely low efficacy in terms of progress towards the attainment of its stated goals due to the Applicant’s uncontrolled mental health symptoms.
[94] Agency Bundle Tab R02, page 248.
[95] Ibid, page 247.
The matters set out above do not amount to a context that is conducive to the efficacy of any NDIS support for the Applicant.
I turn now to the specific requested supports that are in issue in this review.
Support worker assistance
I make the following findings on the material before me in relation to this requested support:
(a)the Applicant requests additional disability support worker assistance of between 6 and 8 hours a day, seven days per week, being 42-56 hours. As at the end of the hearing I remain uncertain if this is in addition to, or inclusive of, the 25 hours that is already incorporated into his statement of participant supports. However, it makes no difference which it is in terms of the outcome of this review.
(b)In his meeting with the NDIS planner on 24 May 2023 the Applicant stated that this was required because he was then utilising this support on an “on-call basis” 2-6 hours per day, seven days a week.[96] By implication, that meant that he was over utilising this support at that time, risking funding depletion in relation to that support. However, there is no evidence in relation to funding depletion before me.
[96] T-documents, Tab T11, page 67.
(c)There is evidence of the Applicant frequently “cancelling” the attendance of disability support workers at short notice due to low mood, disturbed sleep and fatigue, and intoxication.
(d)this additional level of requested support is based on the outcome of a CAN assessment of the Applicant conducted by Ms Tran on 22 December 2022. She concluded based on that assessment that the Applicant required 11 hours of support worker assistance daily. CAN is an assessment tool developed for assessing the support needs of persons with acquired brain injury.[97] There is no satisfactory evidence before me that the Applicant has an acquired brain injury. Ms Tran was not offered as a witness. Consequently, her utilisation of this assessment method is not satisfactorily explained, and the asserted level of additional support required by the Applicant that is derived from this assessment tool must be treated with caution. Nevertheless, Ms Tran did use four other assessment tools to measure the Applicant’s current function, and the results of each of these assessments was broadly equivalent to the CAN assessment outcome.
(e)Ms Tran opines that these additional support worker hours are necessary for the Applicant to complete basic activities of daily living (personal care, meal planning and preparation, domestic tasks such as cleaning, laundry, and shopping etc) and for community participation. In this respect she opines that his functional capacity in relation to these tasks has substantially ‘regressed’ due to his uncontrolled mental health symptoms.
(f)It is important to keep in mind that Ms Tran’s reassessment was entirely based upon the Applicant’s self-reported function. It is not based on direct objective observations and nor is it informed by collateral information from any relevant other, such as the Applicant’s disability support workers. His self-reported level of functional capability (that is, what he can and cannot do), as distinct from his self-reported functional performance (that is, what he chooses to do) is thus obscure in Ms Tran’s analysis.
(g)I am also satisfied for the reasons set out following that the Applicant was motivated to increase his supporter worker hours at the time he was reassessed by Ms Tran. That is, that he sought to influence the assessment to support that outcome. Because of this, the Applicant’s self-reports should be attended by a degree of caution and even scepticism in my view.
(h)There is no satisfactory evidence before me as to how the Applicant utilises his currently approved disability support worker assistance that indicates why 10 hours per week of assistance with self-care, two hours a week of assistance with cleaning and other household activities, three hours assistance per week with personal domestic activities, and 10 hours per week of assistance with access to community and social and recreational facilities is insufficient to meet his needs and allow him to achieve his goals as these are stated in his statement of goals and aspirations. That is not interrogated by Ms Tran in her report. The Applicant has provided no weekly or other plan that indicates how his existing supports are utilised and where there are shortfalls or insufficiencies. When asked to explain his utilisation of existing supports, the Applicant chose to be provocative and evasive which did not assist him in establishing how this requested additional support is reasonable and necessary.
(i)Specifically with respect to domestic cleaning, the Applicant lives in a one-bedroom unit. It is difficult to see why two hours regular cleaning per week would not be sufficient to maintain his unit in reasonably clean condition in accordance with his statement of goals and aspirations. Ms Tran notes from a previous assessment that the unit was unclean and untidy, but she does not explain how that was related to any insufficiency of support or how an increase in such support would make any difference. Rather the state of uncleanliness and untidiness of the Applicant’s unit is more likely related to his destructive behaviours, alcoholism, and non- or under-utilisation of cleaning assistance.
(j)With respect to the Applicant’s goal of engaging in healthy eating I am satisfied on the evidence that the primary limiting factor with respect to the Applicant’s nutrition is his exhaustion of available funds on alcohol and cigarettes rather than food, and his being in an intoxicated state most of the time. In this respect Ms Tran states in her report that the Applicant can prepare simple meals, and Mr Phan states that he has capacity to perform activities of daily living albeit with ongoing support in relation to domestic duties. Those are not the limiting factors in relation to this goal.
(k)The form of support the Applicant requires with activities of daily living is not principally the performance of those tasks by a disability support worker. For example, he does not require personal care assistance with such things as showering, toileting, or grooming, and he is able to cook and do laundry (as examples). The support he requires is prompting to address amotivation and, on Dr Verma’s evidence, to habituate anxiety associated with these tasks. Prompting support is not necessarily or even likely to be time intensive. It does not require physical presence (it can be done with a telephone call, audio que from mobile phone or tablet, or by utilising other aids such as a weekly or daily planner, as examples). Over the course of a week the Applicant’s current plan provides for an average of just under 2 hours per day for this form of support. There is nothing in the evidence which explains why additional support would result in any better outcome. I am satisfied the limiting factors in terms of the Applicant’s activities of daily living are his uncontrolled mental health conditions and alcoholism, not an insufficiency of support hours.
(l)In his oral evidence the Applicant gave a strikingly different account of why he needed additional disability support worker assistance. He said he had no friends, did not want to make friends and that disability support workers were his only friends. He stated, in effect, that he relies upon his disability support worker for companionship and emotional regulation, and that when his support worker is not with him, he is alone, socially isolated in his unit, and emotionally unregulated. I am satisfied that this is the real reason the Applicant wants additional disability support worker hours funded in his plan. What he seeks to achieve by these additional support worker hours is an artificial friendship with a paid support worker as an alternative or substitute to forming unpaid relationships with other people in the general community and as an external influence or control in relation to his emotional and behavioural dysregulation.
(m)Having regard to that, and to Dr Verma’s evidence, I am satisfied that there is a substantial likelihood that the provision of the requested additional support worker hours in the Applicant’s participant plan would harm him by enabling (exacerbating or reinforcing) his social anxiety in the manner explained by Dr Verma. It is likely to increase his dependency on others in relation to the performance of activities of daily living and maintain his social isolation at home in an artificial community of paid support, rather than habituate him to, and enable him to obtain mastery over, the anxiety that limits his functional capacity for greater independence, participation and genuine inclusion, including the development of freely given relationships with others.
[97] Tate, R L, Manual for the Care and Needs Scale (CANS) Version 2 (July 2017), University of Sydney at page 4.
Having regard to these findings I am satisfied that the requested additional disability support worker hours should not be approved because:
i.it is likely to cause harm to the Applicant and therefore cannot be approved by operation of Rule 5.1(a) of the NDIS (Supports for Participants) Rules;
ii.it would not substantially improve the life-stage outcomes, or be of long-term benefit to the Applicant, as contemplated by Rule 3.1(b);
iii.it would not reduce the cost of finding of supports for the Applicant in the long-term, as contemplated by Rule 3.1(c);
iv.it would not increase the Applicant’s independence and reduce his needs for other kinds of supports, as contemplated by Rule 3.1(f);
v.objectively, it would not assist the Applicant to pursue the goals set out in his statement of goals and aspirations, as required by s 34(1)(a);
vi.it would not assist the Applicant to undertake activities that would facilitate his social and economic participation, as required by s 34(1)(b);
vii.it does not represent value for money, as required by s 34(1)(c). In this respect the costs of this additional support are not reasonable having regard to the absence of any benefit to be achieved and
viii.this support is not likely to be effective and beneficial for the Applicant having regard to current good practice, as required by s 34(1)(d).
Physiotherapy
I make the following findings on the material before me in relation to this requested support:
(a)The Applicant requests support in the form of 48 one-hour (weekly) sessions per annum with a physiotherapist. This request arises from a recommendation made by Mr Phan following the physiotherapy assessment he conducted on 28 December 2023.
(b)Mr Phan assessed the Applicant as having physical and sensory impairments which are secondary to his mental health conditions, being chronic pain and fatigue; loss of global strength; reduction in joint range motion; difficulties with general mobility and sustained physical activities and muscle weakness.
(c)Mr Phan states in his report that physiotherapy will alleviate the Applicant’s secondary physical and sensory impairments through a supervised graded exercise program and home-based exercise program, pain management strategies, education, and prescription of exercise equipment for self-management.
(d)The Applicant has previously been approved to purchase exercise equipment under his participant plan. His evidence is that he broke this equipment and received an injury from it.
(e)the Applicant’s current participant plan includes provision for ‘improved daily living’ ‘capacity building support’ described as ‘funding for an allied health professional or therapist to assess and provide support in assisting you to meet your goals of skill development and improving your daily routines, behaviour support and assistive technology’. Under former plans he has utilised this (or equivalent) funding to consult an exercise physiologist and to participate in a group-based exercise physiology program. The Applicant reports that this was not successful because he does not wish to exercise with other people with disability or participate in group work due to his agoraphobia.
(f)In its SOFIC the Agency explains that this support allows for ‘assessment, recommendation, therapy or training’ provided by a counsellor at the rate of 1 hour per week, and ‘assessment, recommendation, therapy or training’ by another professional, 20 hours over 24 months. There is nothing in the evidence which enables me to determine how this existing support has been utilised, if at all. I am satisfied that it is available to the Applicant to consult a physiotherapist to develop a home and community-based exercise program that would address his strength, motion, stamina, and pain issues. In her report Ms Tran states that she ‘educated’ the Applicant as to that possibility during her reassessment.
(g)The Applicant “fired” Mr Phan after consulting him for two physiotherapy sessions a week between December 2023 and January 2024 because Mr Phan went on holidays. He has not had any further contact with a physiotherapist since then. Prior to seeing Mr Phan, the Applicant had been refused service by other physiotherapists because he was not vaccinated for COVID-19. Having regard to this background, and the Applicant’s broader pattern of contact with health professionals, I am satisfied that on the Applicant’s current presentation that there is a likelihood that he would be unable to sustain an ongoing program of physiotherapy support with any provider.
(h)I am satisfied on Mr Phan’s and Dr Verma’s evidence that the secondary physical and sensory impairments identified by Mr Phan result from the Applicant’s physical deconditioning due to his sedentary and social isolative lifestyle, and his alcohol dependence.
(i)Mr Phan was not offered as a witness and consequently no opportunity arose for him to explain his reasoning and conclusions as to why weekly physiotherapy sessions, as distinct from, say, a physiotherapist designed but self-managed exercise program would benefit the Applicant and be consistent with good practice. I accept Dr Verma’s evidence that it is simplistic and unrealistic to assume that proper management of the Applicant’s secondary physical impairments will result in significantly improved mental well-being given the chronicity and severity of the Applicant’s mental health conditions. Rather, I am satisfied that the Applicant’s improved physical condition is dependent on him obtaining a level of mastery of his anxiety such that he is capable of active participation in the community, including by regular exercise.
(j)In this respect I accept Dr Verma’s evidence that there is a ready alternative to physiotherapy support which would have an equivalent or better outcome for the Applicant which is regular walking and self-managed and self-paced home or community-based exercises such as push ups, sit-ups and stretches etc. This does not necessitate either specialist manipulative therapy or exercise equipment and can be done at any time, which would enable the Applicant to be more independent in the management of his physical and sensory conditions.
(k)I also accept Dr Verma’s evidence that the provision of the requested physiotherapy support in the Applicant’s participant plan would result in a significant increase in formal supports which would be likely to enable (exacerbate, reinforce) his anxiety about self-directed regular community participation and increase his dependence on formal support rather than build his capacity for independence.
Having regard to these findings, I am satisfied that the requested physiotherapy support should not be approved because:
i.it is likely to cause harm to the Applicant and therefore cannot be approved by operation of Rule 5.1(a) of the NDIS (Supports for Participants) Rules;
ii.it would not increase the Applicant’s independence and reduce his needs for other kinds of supports, as contemplated by Rule 3.1(f);
iii.objectively, it would not assist the Applicant to pursue the goals set out in his statement of goals and aspirations, as required by s 34(1)(a);
iv.it would not assist the Applicant to undertake activities that would facilitate his social and economic participation, as required by s 34(1)(b);
v.it does not represent value for money, as required by s 34(1)(c). In this respect the costs of this additional support are not reasonable having regard the availability physiotherapist consultation that is already provided for in the Applicant’s plan, and the cost-free nature of home and community-based exercise;
vi.this support is not likely to be effective and beneficial for the Applicant having regard to current good practice, as required by s 34(1)(d).
Personal training
I make the following findings on the material before me in relation to this requested support:
(a)In his report Mr Phan recommended the Applicant obtain the support of an exercise physiologist/personal trainer 48 hours per year (or 1 hour per week). There is no other evidence that supports the Applicant’s claim for this form of support. There is no evidence that indicates why 5 one-hour sessions with a personal trainer would be desirable for the Applicant.
(b)As already stated, prior to December 2022 the Applicant had consulted an exercise physiologist and had attended a group-based exercise class. However, he disengaged from this because he would not tolerate the group-based format or the presence of other persons with disability I note again that the Applicant has a history of impulsively terminating the services of various providers with whom he has engaged in the past. There is a likelihood that this would occur with a personal trainer.
(c)The Applicant has provided no explanation of why exercise with a personal trainer in a gym or even outdoors would have any better prospect of success than the exercise physiology program from which he disengaged. Each involve exercise in a setting amongst other people, even if the trainer relationship may be one-on-one.
(d)I accept Dr Verma’s evidence that personal training at the rate of five one-hour sessions a week is an excessive formal support that is likely to enable (exacerbate, reinforce) his anxiety about self-directed regular community participation and increase his dependence on formal support rather than build his capacity for independence.
(e)I also accept Dr Verma’s evidence that there is a readily available alternative to personal training which would have an equivalent outcome and not enable the Applicant’s anxiety or increase his dependence on formal supports. That is self-directed walking in the community and home and community-based exercise such as sit-ups, push ups and stretches etc.
Having regard to these findings, I am satisfied that the requested physiotherapy support should not be approved because:
i.it is likely to cause harm to the Applicant and therefore cannot be approved by operation of Rule 5.1(a) of the NDIS (Supports for Participants) Rules;
iii.objectively, it would not assist the Applicant to pursue the goals set out in his statement of goals and aspirations, as required by s 34(1)(a);
iv.it would not assist the Applicant to undertake activities that would facilitate his social and economic participation, as required by s 34(1)(b);
v.it does not represent value for money, as required by s 34(1)(c). In this respect the costs of this additional support are not reasonable having regard the availability physiotherapist consultation that is already provided for in the Applicant’s plan, and the cost-free nature of home and community-based exercise:
vi.this support is not likely to be effective and beneficial for the Applicant having regard to current good practice, as required by s 34(1)(d).
Conclusion
For the foregoing reasons, this review is limited to consideration of three supports the Applicant has requested be included in his statement of participant supports, being additional support worker hours, physiotherapy, and personal training. The evidence does not establish to my satisfaction that any of these supports is a reasonable and necessary support. In short summary, I am satisfied that the provision of these supports in his statement of participant supports would be harmful to the Applicant, including by leading to his greater dependence on formal supports rather than promoting his independence, participation in the community, and social inclusion. The decision under review is therefore affirmed on the basis that it is the preferrable decision.
I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Member P French
.....................[sgd].......................
Associate
Dated: 16 August 2024
Date(s) of hearing: 17 and 18 June 2024 Applicant: Self-represented
Counsel for the Respondent: Ms M Fisher Solicitors for the Respondent: Ms M Bilal, Moray & Agnew
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