Brown and National Disability Insurance Agency - [2024] AATA 3307

Brown and National Disability Insurance Agency [2024] AATA 3307 (16 September 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/7417
Re:Carol Brown
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Deputy President Mischin
Date:16 September 2024
Place:Perth

The decision under review, being the decision of the National Disability Insurance Agency made on 1 August 2022 under section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth), which confirmed the decision made on 23 May 2022 to refuse inclusion of funding for a Thermomix® in the Applicant’s Statement of Participant Supports, is affirmed
..........................[Sgd]..............................................
The Hon. Michael Mischin, Deputy President
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – disability requirements – deafness, impaired vision, arthritis – whether a Thermomix® is a reasonable and necessary support pursuant to section 34(1) of the National Disability Insurance Scheme Act 2013 – whether a Thermomix® represents ‘value for money’ pursuant to section 34(1)(c) – relative merits of Thermomix® over similar device – whether other adaptive kitchen aids and appliances sufficiently assessed – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 37
National Disability Insurance Scheme Act 2023 (Cth) ss 3, 33, 34, 34(1), 34(1)(c), 34(2), 35, 100, 100(6)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) rr 1.1, 1.2, 1.3, 3.1
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Madelaine and National Disability Insurance Agency [2019] AATA 4025
National Disability Insurance Agency v Foster [2023] FCAFC 11
SECONDARY MATERIALS
NDIS Creating your plan (guideline dated 26 June 2022)
NDIS Creating your plan (guideline dated 20 December 2023)
NDIS Reasonable and Necessary Supports (guideline dated 6 October 2023)
NDIS Your plan (guideline dated 21 June 2022)
REASONS FOR DECISION
Deputy President the Hon. Michael Mischin
16 September 2024
BACKGROUND

The Applicant is a hearing impaired 60-year-old woman. She was born deaf due to Rubella. She has since received bilateral cochlear implants which assist her with lipreading, filtering background noise, and speech. Additionally, the Applicant has congenital cataracts and, although she has had operations, is still sight impaired: her vision is blurry in both eyes, with her left eye being effectively blind.[1] She also has arthritis and high blood pressure.
[1] Transcript 19.
The Applicant resides in an independent living village in Port Kennedy with her deaf husband, Simon.[2] She can communicate by Auslan, but this is becoming increasingly difficult, both with her husband and generally, as her sight deteriorates.[3]
[2] Exhibit R1 Tab 7, Hearing Tender Bundle 46, 166.
[3] Exhibit R1 Tab 7, Hearing Tender Bundle 46-47, 166-167.
The Applicant has been a participant in the National Disability Insurance Scheme (NDIS or Scheme) since 6 November 2018 due to her deafness/blindness.
The Applicant seeks review of a decision made, pursuant to section 100 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act), by a delegate of the Chief Executive Officer of the National Disability Insurance Agency (the Respondent or Agency) on 1 August 2022, affirming an earlier decision refusing to include funding for a Thermomix® (Thermomix) as part of her Statement of Participant Supports.
THE HEARING AND AVAILABLE EVIDENCE
The application was heard by the Tribunal on 29 and 31 May 2024.
The Tribunal had before it a Hearing Tender Bundle[4] of documents, comprised of the ‘T-Documents’ filed by the Respondent pursuant to its obligations under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act),[5] extracts of relevant legislation,[6] Rules[7] and Operational Guidelines,[8] and a variety of correspondence and reports. Other documents admitted into evidence at the hearing included:
(a)A letter from Occupational Therapist Jackie Reynolds of Full Life Occupational Therapy dated 27 May 2024 intituled ‘Amendment to Thermocook Pro 2.0 Assessment dated 12 September 2023’;[9]
(b)Emails dated 30 August 2023 and 6 September 2023 between the Respondent and the Applicant’s advocate, wherein the Applicant declines to undergo a functional capacity assessment by Consultant Occupational Therapist Brenton Fielke;[10]
(c)A six-page document titled ‘This is my aim goal to have a Thermomix’ [sic] compiled by the Applicant and dated 29 May 2024;[11]
(d)A diagram showing a Thermomix® with graphics displaying its functions;[12]
(e)Occupational Therapist Jackie Reynolds curriculum vitae undated;[13] and
(f)A screenshot of an extract from the Thermomix® website headed ‘Important Safeguards for your TM6™’.[14]
[4] Exhibit R1.
[5] Exhibit R1, Hearing Tender Bundle 146-347.
[6] Exhibit R1 Tab 9, Hearing Tender Bundle 272-274.
[7] Exhibit R1 Tab 10, Hearing Tender Bundle 275-292.
[8] Exhibit R1 Tab 11, Hearing Tender Bundle 293-347.
[9] Exhibit A1; Transcript 10.
[10] Exhibit R2; Transcript 12.
[11] Exhibit A2; Transcript 17.
[12] Exhibit A3; Transcript 18.
[13] Exhibit A4; Transcript 133-134: requested during the hearing and supplied by the witness post-hearing.
[14] Exhibit R3; Transcript 149.
The Applicant attended the hearing in person, accompanied by her husband Simon for support. A support worker from VIP Auslan, Kirstin Campbell, was also present to assist her.
Being deaf, the Applicant gave evidence and was cross-examined,[15] and engaged in the proceedings, with the assistance of suitably qualified Auslan interpreters.[16] The Tribunal is indebted to them for their efforts and has no reason to doubt that they discharged their responsibilities as well as could be expected. However, I am conscious that they are interpreting, and nuances may be lost in the process; accordingly, I have taken this into consideration in my assessment of the Applicant’s testimony.
[15] Transcript 14-48.
[16] Transcript 2-3, 13, 89.
It was also the Applicant’s evidence that, due to her deafness, English was not her ‘first language’ rather than Auslan, and she had difficulty reading and understanding the English language.[17] Her support worker also advised that, by reason of her disability, identifying products by name may be challenging for the Applicant because she is more picture orientated.[18] I have taken this, too, into account.
[17] Transcript 54, 60.
[18] Transcript 58.
In addition to the Applicant, the following witnesses gave evidence at the hearing and were cross-examined:
(a)Occupational Therapist Jackie Reynolds, called by the Applicant;[19] and
(b)Consultant Occupational Therapist Brenton Fielke, called by the Respondent.[20]
[19] Transcript 91-134.
[20] Transcript 136-151.
The Tribunal also had the benefit of the Respondent’s several Statements of Facts, Issues and Contentions filed in the proceedings,[21] the Applicant’s Response to same,[22] oral closing submissions from the Respondent at the conclusion of the hearing,[23] written closing submissions from the Applicant,[24] and the Respondent’s Reply to those.[25]
[21] Exhibit R1 Tabs 1-6, Hearing Tender Bundle 3-38.
[22] Exhibit R1 Tab 16, Hearing Tender Bundle 125-126.
[23] Transcript 152-164.
[24] Applicant’s Closing Submissions dated 20 June 2024.
[25] Submissions in Reply of the Respondent dated 27 June 2024.
I have considered the relevant factual and expert evidence and refer to parts of the same in these reasons.
ISSUES
The issue for determination is whether a Thermomix is a reasonable and necessary support which should be funded by the NDIS.
During the progress of the matter to hearing, the Respondent offered the Applicant a similar device called a ThermoCook® (ThermoCook) as an alternative. The Applicant rejected this alternative.
The focus of the evidence, therefore, has been on the Applicant’s need for a Thermomix or similar aid, and the relative merits of the Thermomix over any comparable or similar item of technology.
LEGISLATIVE FRAMEWORK
I have had regard to the objects and general principles informing the application of the NDIS Act and the Scheme. Section 3 provides, so far as material:
(1)       The objects of this Act are to:
(a)…
(b)provide for the National Disability Insurance Scheme in Australia; and
(c)support the independence and social and economic participation of people with disability; and
(d)provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme; and
(e)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f)…
(g)promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
(ga)protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and
(h)…
(i)…
(2)       These objects are to be achieved by:
(a)…
(b)adopting an insurance‑based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability; and
(c)...
(3)       In giving effect to the objects of the Act, regard is to be had to:
(b)the need to ensure the financial sustainability of the National Disability Insurance Scheme; and
(c)…
(d)…
More specifically, section 33 of the NDIS Act prescribes the matters that must be included in a participant’s plan. It provides, materially:
(1)A participant’s plan must include a statement (the participant’s statement of goals and aspirations) prepared by the participant that specifies:
(a)the goals, objectives and aspirations of the participant; and
(b)the environmental and personal context of the participant’s living, including the participant’s:
(i)living arrangements; and
(ii)informal community supports and other community supports; and
(iii)social and economic participation.
(2)A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a)the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
…
(3)The supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise.
…
(5)In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a)have regard to the participant’s statement of goals and aspirations; and
(b)have regard to relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
…
…
[original emphasis]
Section 34 of the NDIS Act deals with ‘Reasonable and necessary supports’, and the criteria of which the CEO must be satisfied with respect to the funding of a support, as follows:
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i)as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(2)The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
Section 35 of the NDIS Act empowers the making of rules regarding statements of participant supports, materially:
(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 term ‘reasonable and necessary’ is not defined in the NDIS Act.
However, rules have been made pursuant to section 34(2) prescribing that to which a decision-maker must have regard in deciding whether they are satisfied that the criteria under section 34(1) have been met in respect of a requested support.
In this case, the relevant rules to which the Tribunal has been directed are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Supports Rules).[26]
[26] Exhibit R1 T10, Hearing Tender Bundle 275-292.
The Supports Rules materially state as follows:[27]
[27] Exhibit R1 T10, Hearing Tender Bundle 276.
1.1These Rules are about assessment and determination of the reasonable and necessary supports that will be funded and the general supports that will be provided for participants under the NDIS.
1.2The Act sets out a number of objects for the NDIS. The objects that are particularly relevant to these Rules are the following:
(a)supporting the independence and social and economic participation of people with disability;
(b)providing reasonable and necessary supports, including early intervention supports, for participants in the NDIS launch;
(c)enabling people with disability to exercise choice and control in pursuit of their goals and the planning and delivery of their supports.
1.3In giving effect to these objects, regard is to be had to the need to ensure the financial sustainability of the NDIS.
Part 3 of the Supports Rules informs the CEO, in greater detail than section 34 of the NDIS Act, of matters to which the CEO is to have regard in assessing proposed supports, relevantly:[28]
[28] Exhibit R1 T10, Hearing Tender Bundle 280.
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 on 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 area 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).
The NDIS Act and its Rules are supplemented by Operational Guidelines. The Operational Guidelines represent government policy and, to the extent that they are consistent with the relevant legislation, should be applied by the tribunal unless here is a sound reason not to do so.[29]
[29] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; Madelaine and National Disability Insurance Agency [2019] AATA 4025.
The relevant operational guidelines at the time the decision under review was made were the:
(a)NDIS Creating your plan (guideline dated 26 June 2022);[30] and
(b)NDIS Your plan (guideline dated 21 June 2022).[31]
[30] Exhibit R1 Tab 11, Hearing Tender Bundle 293-324.
[31] Exhibit R1 Tab 11, Hearing Tender Bundle 325-347.
During the Respondent’s submissions at the conclusion of the hearing, it emerged that these have since been superseded by:
(a)NDIS Creating your plan (guideline dated 20 December 2023); and
(b)NDIS Reasonable and Necessary Supports (guideline dated 6 October 2023) (Supports Guideline).
Copies of these were provided to the Tribunal and the Applicant during the Respondent’s closing submission. As these latest guidelines would now inform the approach the Respondent would take to the question of whether access should be granted to the Scheme, I have taken the latest guidelines into consideration in my assessment of this application for review. To the extent relevant to this application, there is no material difference between these two guidelines.
The Respondent referred the Tribunal to passages in the Supports Guideline during its closing submission. They reinforce the approach that the NDIS Act and Supports Rules requires of decision-makers in deciding whether a particular support ought to be provided.
THE EVIDENCE
The Applicant’s circumstances and general functional capacity

The Applicant works part-time as a checkout assistant at a supermarket, where she has worked for some 39 years.[32] Her duties include scanning and packing items, to a weight limit of ‘five or eight’ kilograms; for anything heavier she seeks assistance.[33] She works 3-and a-half hours, three days each week.[34]
[32] Transcript 25, 27.
[33] Transcript 27.
[34] Transcript 28.
Recreationally, the Applicant enjoys swimming and may spend an hour or an hour-and-a-half doing so. She used to ten-pin bowl before moving from Tasmania in about March 2021[35] and has thought about taking it up again. She used an eight or nine-kilogram ball.[36] The Applicant can also play the piano,[37] and one of her Plan goals is to learn to use a computer.[38]
[35] Transcript 57.
[36] Transcript 28.
[37] Transcript 28.
[38] Transcript 29.
The Applicant’s husband has been unemployed for some time. He drives the Applicant to and from work, as she cannot drive by reason of her poor sight.[39]
[39] Transcript 26.
Otherwise, the Applicant is independent in basic activities of daily living but has difficulty with various tasks, for which she requires varying levels of assistance. The difficulties are attributed to her deafness, poor vision, and arthritis.[40]
[40] Exhibit R1 Tab 7, Hearing Tender Bundle 46-47, 167-168.
Evidence for the necessity for a Thermomix or similar appliance
The Applicant has decided that she would like a Thermomix and that having one is related to her disability.[41] She contends that a Thermomix is a ‘reasonable and necessary’ support.[42] One of her ‘Short-term’ goals in her Plan is that she ‘would like to increase [her] cooking skills and learn how to cook a variety of dishes while staying safe in the kitchen’.[43] Under ‘How I will achieve this goal’ she states:[44]
I will receive 1:1 assistance from a support worker to teach me how to cook different dishes, and how to use kitchen equipment safely. I will utilise assistive technology equipment recommended by an occupational therapist so that I can remain safe in the kitchen.
[41] Applicant’s Closing Submission dated 20 June 2024, paragraphs 8, 9.
[42] Applicant’s Closing Submission dated 20 June 2024, paragraph 7.
[43] Exhibit R1 Tab 7, Hearing Tender Bundle 248; Tab 8, Hearing Tender Bundle 263.
[44] Exhibit R1 Tab 7, Hearing Tender Bundle 248; Tab 8, Hearing Tender Bundle 263.
As to ‘How I will be supported’, she advises:[45]
I will require an interpreter or a support worker who can sign Auslan (tactileorgcessary, and interpreter. [sic] I will utilise assistive technology.
[45] Exhibit R1 Tab 7, Hearing Tender Bundle 248; Tab 8, Hearing Tender Bundle 263.
The Applicant contends that her ‘main goal and aim is to create good independence with my cooking skills at home’.[46] She contends that a Thermomix is not only consistent with, but ‘essential’ for her to achieve her goals.[47] She is aware of other kitchen aids that would enable her to perform different kitchen tasks, but she is of the opinion these ‘do not eliminate the risks’. The Applicant’s view is that a Thermomix can do what all these individual items can achieve, but with more efficiency and safety.[48]
[46] Transcript 18; Exhibit A3.
[47] Applicant’s Closing Submission dated 20 June 2024, paragraph 9.
[48] Applicant’s Closing Submission dated 20 June 2024, paragraph 13, 14.
The Assessment Template – General Assistive Technology: Thermomix® (Assessment Template), prepared by the Applicant’s Occupational Therapist Ms Reynolds and dated 22 November 2021, asserts that the Applicant ‘is responsible for completing meal preparation tasks at home and does not receive assistance’.[49] However, later in that document it is said that her husband ‘can no longer safely and independently assist her with meal preparation tasks due to his hearing loss and Schizophrenia’ and that the Applicant ‘needs the AT [ie: Assistive Technology] to increase her daily independence, reduce her reliance on her husband for daily tasks and provide meals for her husband’.[50] Still later, it is stated that ‘[d]uring the interim period where she is waiting for the provision of the AT, [the Applicant] will continue to rely on her husband to assist her with daily meal preparation tasks. However, this is not a suitable, long term solution.[51]
[49] Exhibit R1 Tab 7, Hearing Tender Bundle 49, 169.
[50] Exhibit R1 Tab 7, Hearing Tender Bundle 48, 168.
[51] Exhibit R1 Tab 7, Hearing Tender Bundle 82, 202.
During the hearing, the Applicant’s enthusiasm for a Thermomix was patent. On numerous occasions during her evidence when being asked questions, even about other kitchen appliances and aids, she would take the opportunity to advocate for the merits of a Thermomix rather than address the question being posed.[52] She asserted that her heart was set on one, and that she had ‘been praying’ for one for a long time.[53] When the Agency suggested that she try other devices, she was not keen about it; for example, she did not ‘feel comfortable’ with trying a ThermoCook, for a variety of reasons.[54]
[52] Eg: Transcript 36-37,54.
[53] Transcript 59.
[54] Transcript 60.
The Applicant testified that the Thermomix costs about $2,579; the ThermoCook $899.[55]
[55] Transcript 61.
The Applicant’s evidence regarding meal preparation
The Applicant in her evidence recounted how she and her husband went about meal preparation and her limitations.
As to meal preparation, it is said that she completes meal preparation tasks with difficulty due to her vision impairment and arthritis. To perform them safely she needs to modify the methods by which she does them and use certain specialised kitchen aids.[56]
[56] Exhibit R1 Tab 7, Hearing Tender Bundle 48, 168.
She testified that due to her arthritis, the pain in her hands when she gripped was such that she could not open jars or water bottles.[57] She often buys pre-cut food, such as vegetables and salads, as she has difficulty preparing them herself,[58] and partly prepared ingredients which she can cut into smaller portions.[59] The Applicant is capable of shopping for ingredients and will note and take a picture of them on her mobile telephone to show people so that they can fetch them or show her where to find them.[60] In the kitchen, she ‘can’t use cans much’, but locates them by knowing where she stores them.
[57] Transcript 20.
[58] Transcript 34.
[59] Exhibit R1 Tab 7, Hearing Tender Bundle 52, 172; Transcript 34.
[60] Transcript 21.
The Applicant made meals in a saucepan, or oven, such as roasts, and can use a microwave oven.[61] She generally uses the microwave for quick meals or warming up food or steaming vegetables.[62] However, she can be burned taking food out of a microwave.[63] She uses a press grill to cook meat, and a different griller to toast sandwiches.[64] The Applicant has difficulty lifting heavy items like pots off the stove; her husband would help her.[65] Again, there is a potential for burning herself.[66]
[61] Transcript 30.
[62] Transcript 30-31.
[63] Transcript 31.
[64] Transcript 31.
[65] Transcript 23, 84.
[66] Transcript 32.
When in Tasmania, her then Occupational Therapist had showed her a few adaptive utensils to use in the kitchen and some cooking techniques.[67] The Applicant has acquired and uses certain aids to assist her to address her limitations, including:
·Using a jar and bottle-opening device;
·Alarms and sensors to alert her to things that are hot;[68]
·Labelling foodstuffs and kitchen items;[69]
·Using a specialised peeler for the sight-impaired to peel vegetables, although her husband can use a regular one; and
·Using an adaptive teaspoon and mug.[70]
[67] Transcript 33, 34.
[68] Transcript 20.
[69] Transcript 22.
[70] Transcript 33.
However, the Applicant seems not to use other items that may assist her with her meal preparation and cooking. She does not use a finger guard or protective gloves to protect herself when using a knife, although thinks she ‘probably should’. She said that she was unaware of anything like that,[71] and was not aware of a product that she could wear to protect the ends of her fingers.[72] She and her husband do not use a timer to tell if a meal is ready, and judge by smell.[73]
[71] Transcript 32.
[72] Transcript 33.
[73] Transcript 32.
Presently, as examples of her current cooking ability and repertoire, the Applicant prepares breakfast, lunch and sometimes dinner, can make and heat porridge in the microwave, make sandwiches and can boil vegetables.[74] Her husband generally prepares dinners,[75] although she ‘sometimes’ does.[76] Dinners may consist of meat and vegetables, jacket potatoes, sometimes mashed, or sometimes sweet potato. She and her husband would work together on what they feel like eating. Sometimes they may go out for dinner. She can prepare desserts, preferring fruit and puddings.
[74] Transcript 22-23.
[75] Transcript 22.
[76] Transcript 22.
The Applicant has had multiple sessions via Zoom with ‘Deaf Chef Ross’ where she learnt how to make different types of meals.[77] The Deaf Chef taught her to use a blender, which she uses.[78] She has not sought out recipes for cooking with the microwave.[79]
[77] Transcript 30.
[78] Transcript 34.
[79] Transcript 31.
The Applicant’s husband provides her with informal supports. The Applicant enjoys cooking with her husband as an activity they can do together, and says he helps ‘motivate’ her.[80] She draws upon her husband for assistance. For example, the Applicant’s husband will check if meat is cooked and take care of the removal of the meat from a griller, or racks out of the oven.[81] If due to her poor sight she misses ingredients for recipes, her husband will prompt her.[82] Her husband will also cut ingredients for her, read the expiry date on items, and will take hot heavy pots off the stove so that she does not risk burning herself.[83]
[80] Transcript 23, 35.
[81] Transcript 32.
[82] Transcript 21-22.
[83] Transcript 22-23.
The Applicant’s evidence is that her husband attends to much of the task of meal preparation. He had worked for 14-and-a-half years in food preparation for catering, but since becoming unemployed spends much of his time at home. Her husband likes to cook and does; it is something he enjoys and gets ‘quite excited’ about.[84] The Applicant says because she often misses ingredients when cooking, her husband ‘does a lot of the cooking’[85] – indeed, the ‘majority’ of the cooking is done by him – but ‘sometimes’ she would like to cook.[86] They share the chore of washing up.[87]
[84] Transcript 23.
[85] Transcript 21.
[86] Transcript 23.
[87] Transcript 25.
The Applicant says that ‘I’m not the one that does the everyday cooking … I might cook once maybe twice … I like to do the sweets but my husband’s the one that does most of the cooking … I’m waiting for this Thermomix … then I’ll have more time and I can cook more’.[88] She says that he is a ‘simple cook and doesn’t make anything complex’ and she assists. She says they ‘have to do it his way until they get the Thermomix’ so she can make the meals herself.[89]
[88] Transcript 22.
[89] Transcript 24.
The Applicant’s evidence at the hearing conflicts with what is asserted in the Assessment Template of 22 November 2021, prepared by Ms Reynolds, that the husband does not and cannot assist the Applicant due to deterioration of his faculties. On the contrary, it appears that, even some two-and-a-half years later, the Applicant’s husband seems to be satisfactorily carrying a substantial if not majority share of meal preparation and assists the Applicant in tasks she cannot perform physically or safely, but which he can. There was no mention by the Applicant of his diminishing capacity or lack of ability, other than he is a ‘simple cook and doesn’t make anything complex’.
I am satisfied that the Applicant’s impairments – particularly her impaired sight but also her impaired limb strength and grip – limit her ability to prepare meals. I accept that she has difficulty opening jars and bottles by reason of the loss of strength and pain to her hands; she cannot carry or easily manipulate heavy items such as pots and pans; and her poor sight means that she easily spills things, as she cannot easily judge the ‘boundaries’ of the containers into which she is putting them.[90] I also accept that she requires adaptive aids to perform more easily and safely tasks like cutting vegetables and may have difficulty reading recipes. I accept that for many of these tasks she relies upon the informal assistance of her husband.
[90] Transcript 20.
The Applicant’s preferences and the reasons therefor
The Applicant likes and wants a Thermomix.[91]
[91] Transcript 16.
The Applicant said that she had gone to some Thermomix demonstrations which demonstrated what it could do, recalling some four such events.[92] She had then mentioned the Thermomix to Ms Reynolds, although whether before or after her first demonstration, she could not recall.[93]
[92] Transcript 36.
[93] Transcript 36.
The Applicant spoke of the desirable features of a Thermomix. The Thermomix has a single blade, which is what she wants.[94] It has a top speed of 10,000 rpm, and a top heat setting of 160 degrees, giving more options to create more dishes. It is easy to handle.[95]
[94] Transcript 15.
[95] Transcript 16.
As to its functions, the Applicant tendered a diagrammatic presentation of 20-odd Thermomix functions.[96] It has an automatic potato peeler, and a slicer and grater function, to save her from cutting her fingers. In addition to slicing and grating, it can sous vide, blend, mix doughs and assist with fermentation process, and it self-cleans.[97] It can boil eggs, cook rice, warm up foods, slow cook, thicken, turbo blend, peel, and chop.[98] It was very easy to handle.[99] It is equipped with a touch screen,[100] and a recipe app that can display recipes automatically on the device’s touch screen.[101] The Applicant advised that she was able to connect the device to a mobile phone or an iPad, to help her appropriate the necessary ingredients for recipes that appeared on the screen. She could create, import, share or adopt serving suggestions and the sizes to prepare from the recipes.
[96] Transcript 112-113; Exhibit A3.
[97] Transcript 17.
[98] Transcript 18.
[99] Transcript 16.
[100] Transcript 15.
[101] Transcript 17; Exhibit A2.
The Applicant considered that the Thermomix would give her more confidence and more independence and present less risk in relation to her health, rather than going to the shops and eating fast food. Eating appropriately would help her with her blood pressure, cholesterol levels and osteoarthritis in her lower back. She did not expand on what those meals might be and why they were beyond what she could currently prepare without a Thermomix.[102] A support worker attending her home to cook would be very expensive. She contends the Thermomix would improve her safety by removing the risk of accidents such as her ‘pulling down the oven or taking a hot item off the stove, for example, boiling water’.[103]
[102] Sessions with Deaf Chef Ross had included advice on nutrition and diet, and he showed the Applicant how to prepare pizzas. She afterwards purchased a pizza slicer and some other ‘normal’ utensils from a supermarket; Transcript 30, 82-82. The sessions did not require a Thermomix.
[103] Transcript 18.
The Applicant was cross-examined by Respondent’s counsel and asked about some of Ms Reynolds’ statements in the Assessment Template of 22 November 2021[104] that the latter had prepared on the Applicant’s behalf:
(a)As to the reference to a ‘trial’ of the Thermomix being conducted at the Applicant’s home, the Applicant conceded that she may have been shown the Thermomix after Ms Reynolds had recommended it;[105]
(b)During the Thermomix demonstration she had a chance to operate the machine.[106] She was involved in cooking a risotto as well as mousse and honeycomb.[107] The demonstrator also showed her how to remove the blade.[108]
(c)As to Ms Reynolds’ reference to standard kitchen items and utensils not enabling the Applicant to complete meal preparation tasks safely and independently, and to the Applicant having disposed of her blender when she moved,[109] the Applicant could not remember whether Ms Reynolds had asked her to demonstrate how she used various kitchen items or performed kitchen tasks;[110]
(d)The Applicant could not recall if during that assessment Ms Reynolds gave any information about other multi-kitchen appliances other than the Thermomix;[111]
(e)The Applicant could not say whether she had seen any ‘all-in-one’ kitchen machines, but regarded the Thermomix as one;[112]
(f)As to other items mentioned in that Assessment Template, the Applicant had not seen a Kogan ThermoBlend®, a Mistral Professional Ultimate Kitchen Machine®, a HotmixPRO Gastro®, or a Kenwood kCook Multi Smart®;[113] and
(g)The Applicant could not recall being shown photographs of any devices other than a Thermomix.
[104] Exhibit R1 Tab 7, Hearing Tender Bundle 61, 181.
[105] Transcript 37-38.
[106] Transcript 38.
[107] Transcript 39.
[108] Transcript 39.
[109] Exhibit R1 Tab 7, Hearing Tender Bundle 68, 188.
[110] Transcript 47-48.
[111] Transcript 55.
[112] Transcript 58, 59.
[113] Transcript 57-58.
The Applicant was asked about her knowledge of the Optimum ThermoCook® and her views of its inadequacies:
(a)The Applicant had seen a ThermoCook ‘a little bit’, having been shown photographs of one. She immediately saw that it would not suit her because of the way it has to be operated, and the parts.[114] Some of the parts are ‘hard’ and dangerous for her to use, including the blade which she says was ‘very dangerous’ for her. She was not comfortable trying to use it and considered it was hard to manoeuvre;[115]
(b)The ThermoCook has a two-blade system, one for food processing and one for general mixing. The blades can be interchanged. However, she considered that it represented a ‘high risk’ of her cutting herself,[116] as she thought the blade is ‘too sharp’ and very difficult to manipulate and remove for cleaning, affecting ‘the issues in [her] back’;[117]
(c)The ThermoCook only has a top speed of 6,500 rpm.[118] It has pre-set settings and ‘doesn’t have additional flexibility in relation to what I want’.[119] It has a set of scales separate from the device;[120]
(d)She has not looked at any other appliances.[121]
[114] Transcript 24.
[115] Transcript 61.
[116] Transcript 15.
[117] Transcript 16.
[118] Transcript 15.
[119] Transcript 15.
[120] Transcript 16.
[121] Transcript 24.
The Respondent’s counsel also asked the Applicant about the various functional capabilities of a Thermomix compared to what could be done with other items of kitchen equipment:
(a)Food processor: The Applicant did not know if she had ever used a food processor,[122] and said that she didn’t know what a food processor was or did;[123]
(b)Blender: The Applicant has and does use a blender[124] but she and her husband don’t use it much, her husband more than her, as she has no reason to.[125] She could not recall showing Ms Reynolds the blender;[126]
(c)Bread maker: The Applicant knew of bread makers but doesn’t need much bread anyway and didn’t know if a Thermomix could perform that function.[127] She said she had a device she considered ‘similar’ to a bread maker in Tasmania but didn’t use it much and gave it away. She did not seem aware that a bread maker could also perform the Thermomix functions of dough making and fermentation for yoghurt and dough;[128]
(d)Egg boiler and egg cooker: the Applicant doesn’t boil eggs much – her husband does this. She has never tried boiling or cooking eggs in a microwave;[129]
(e)Food warming: the Applicant agreed food warming can be done in a microwave, and she can reheat food in her microwave and has done so;[130]
(f)Cooking rice: the Applicant has never used a rice cooker, cooking rice in a saucepan ‘if anything’.[131] She was aware that a small machine could cook rice, but wouldn’t buy one as there would be too many items in the home and she would use a saucepan;[132]
(g)Slow cooking: the Applicant has never tried slow cooking in a microwave, she has just used a large pot on the stove as a slow cooker. She has never had a slow cooker;[133]
(h)The Applicant was not aware of all the functions her microwave could perform;[134]
(i)The Applicant agreed that if she had a Thermomix she would still have to use her oven for biscuits and roasts, but not often;[135] and
(j)The Applicant agreed that a Thermomix doesn’t roast or bake but said it can cook a chicken.[136]
[122] Transcript 40.
[123] Transcript 41, 42, 56.
[124] Transcript 42.
[125] Transcript 52, 53, 56.
[126] Transcript 53.
[127] Transcript 42.
[128] Transcript 42.
[129] Transcript 43.
[130] Transcript 43.
[131] Transcript 43.
[132] Transcript 44.
[133] Transcript 44.
[134] Transcript 44.
[135] Transcript 44.
[136] Transcript 45.

As to the Thermomix demonstration preparing risotto, it involved all the ingredients being put into the bowl together. When the Applicant was asked whether more complicated recipes would require her to remove ingredients from the bowl and exchange them with others for different stages and processes, she was unsure.[137]
[137] Transcript 45.
Occupational Therapist Jackie Reynolds
The Applicant called Occupational Therapist Jackie Reynolds of Full Life Occupational Therapy to give evidence. In addition to the Assessment Template of 22 November 2021, Ms Reynolds prepared several reports respecting the Applicant.
Ms Reynolds advised that she had over 20 years’ experience as an occupational therapist. Her, and Full Life’s, specialty was working with the deaf and hard-of-hearing, and deaf-blind clients. She has worked at Full Life for four years. She has ‘moderate’ skill in Auslan but is not fluent, and always uses an interpreter.[138]
[138] Transcript 93.
Ms Reynolds first engaged with the Applicant in 2021, shortly after the Applicant moved from Tasmania, and along with an allied health assistant had attended the Applicant’s Port Kennedy unit to assess the Applicant’s needs. Certain fire alarm and other equipment was organised for the Applicant.[139] She has otherwise consulted with the Applicant some seven or eight times with reference to the application for a Thermomix, including on some occasions via Zoom and at least four in-person attendances.[140]
[139] Transcript 92.
[140] Transcript 94.
According to Ms Reynolds, the Applicant:
(a)Due to arthritis, has difficulty with gripping and manoeuvring kitchen utensils, and lacks the dexterity in her fingers and the hand-strength to complete grip-based meal preparation tasks such as chopping and mixing with kitchen utensils;[141]
(b)Lacks the upper-limb strength to lift and carry heavy items such as pots and pans during meal preparation tasks;[142]
(c)Experiences shoulder and hand strain using ‘standard’ kitchen devices and utensils for meal preparation (such as knives, a grater, pots and pans), which has ‘increas[ed] the severity of her Conditions and symptoms’;[143]
(d)Due to impaired vision, cannot safely complete meal preparation tasks that require the use of sharp utensils and heat, as she is at risk of cutting or burning herself, and she has on occasion sustained cuts and burns;[144]
(e)If she sustains an upper-limb injury which affects function, may be limited in her ability to communicate in Auslan;[145] and
(f)Is provided informal support by her husband, but he is not always with her and shares her communication barriers.[146]
[141] Exhibit R1 Tab 7, Hearing Tender Bundle 49, 169.
[142] Exhibit R1 Tab 7, Hearing Tender Bundle 49, 169.
[143] Exhibit R1 Tab 7, Hearing Tender Bundle 68, 188.
[144] Exhibit R1 Tab 7, Hearing Tender Bundle 49, 53, 169, 173.
[145] Exhibit R1 Tab 7, Hearing Tender Bundle 52, 53, 172, 173.
[146] Exhibit R1 Tab 7, Hearing Tender Bundle 47, 167.
Ms Reynolds, during her assessment, observed the kitchen equipment the Applicant has available to her. It included a microwave, standard pots and pans and oven trays. Adaptive utensils were a kettle tipper, tactile markers as a vision aid, a hand-covering peeler, some liquid level indicators, and measuring cups and spoons with large print.
In the Assessment Template Ms Reynolds said of the Thermomix that:[147]
·it is not an everyday household expense and remains an additional expense that is not affordable to low-income earners; and
·it directly relates to [the Applicant’s] needs related to her Conditions and her hearing loss. [The Applicant’s] need for the AT does not arise from her daily living needs (such as a need save time and labour during food preparation tasks). It is an additional cost that she would not otherwise incur if she did not have her disabilities.
[147] Exhibit R1 Tab 7, Hearing Tender Bundle 58, 178.
Ms Reynolds advised that at the time of the assessment the Applicant did not have a rice cooker or bread maker, a food processor or blender; she’d previously had a blender but it ‘wasn’t helping her’ so she disposed of it.[148]
[148] Transcript 106.
The Applicant has told Ms Reynolds that she can only put light things in oven trays as they are too heavy to lift and cause strain to her shoulders.[149] Ms Reynolds did not, apart from an X-ray report speaking of arthritis and degenerative changes in the Applicant’s back, see any medical reports about the Applicant’s condition or about arthritis in her limbs. She relied on the Applicant’s self-reporting of her arthritis in her hands and shoulder, and the Applicant’s advice that she was taking medication.[150]
[149] Transcript 105.
[150] Transcript 102.
The Applicant did not have finger protectors, cut gloves, or heat gloves, or locking lids for saucepans that could prevent splashing.[151] Ms Reynolds did not recommend any such protective aids. In her response of 16 January 2023[152] to the Respondent’s Statement of Issues of 6 December 2022,[153] Ms Reynolds reported that the Applicant ‘has difficulty using cut-resistant safety gloves due to her arthritis, which reduces her hand mobility’: she conceded in cross-examination that she had not tested the Applicant regarding that and that ‘[i]t probably shouldn’t be in there’.[154]
[151] Transcript 103-104.
[152] Exhibit R1 Tab 8, Hearing Tender Bundle 92-97.
[153] Exhibit R1 Tab 1, Hearing Tender Bundle 3-6.
[154] Transcript 119.
Ms Reynolds didn’t know whether the Applicant used oven mitts to remove items from the stove or oven but believed that she used either a tea towel or had her husband do it. The Applicant advised her that many of the burns she suffered were from splashes from hot liquid, rather than from reaching into the oven. Ms Reynolds had never seen the Applicant cook a hot meal. Ms Reynolds explained the Applicant ‘talked her through the process’ or at most she ‘saw her in a cold environment; how biomechanically she reaches into the oven. And she talked about how she can only put very light things on the oven tray, otherwise she can’t lift them. It causes strain on her shoulders. So Simon sometimes does that for her’.[155]
[155] Transcript 104-105.
It appears that it was on her first visit and assessment that Ms Reynolds, having been told of the difficulties the Applicant was experiencing in the kitchen, suggested to her a machine that may assist. Ms Reynolds saw some of the adaptive aids that the Applicant used and suggested a trial of such a machine. The idea of the Thermomix came up quite early as an option as it is ‘one of the preferred options by many therapists’ that they ‘tend to go straight to’, it being a quality brand, does a good job, and is the only one free to access and trial.[156]
[156] Transcript 94.
Ms Reynolds has attended four Thermomix demonstrations in her professional capacity, with four different NDIS participants, and on each occasion has recommended that the Respondent fund such device. On each occasion, the demonstration recipe was risotto.[157] She had never undertaken an assessment for participants of a ThermoCook or other device, as ‘there aren’t any available to try’.[158] Her knowledge of that machine is based on research online.[159]
[157] Transcript 98.
[158] Transcript 98.
[159] Transcript 99.
Ms Reynolds did not consider it necessary to trial other devices such as food processors, as the Thermomix was a machine that Mrs Reynolds knew the Applicant was able to use successfully and ‘met her needs’.[160]
[160] Transcript 106-107.
At the hearing some time was spent taking Ms Reynolds through other devices that she referred to and dismissed in her reports. In substance, conscious that the NDIA would want to consider lower-cost options to a Thermomix, she selected various lower cost appliances, sometimes with reference to the Australian Consumer Association’s Choice recommendations, and evaluated them based on the information available to her. However, having found the machine that worked for the Applicant, concluded that alternatives didn’t do as much or as well.[161] She conceded that the Applicant would not need all the functions on the Thermomix, but Ms Reynolds’ primary consideration was whether the machine met the Applicant’s disability and accessibility needs, and her safety needs, and the Thermomix met all of those, as well as giving her the best range of cooking options.[162] As to options:[163]
I can’t say I spent forever on looking at different alternatives, because I didn’t. I had found the machine that worked for her. I did look at a few others. I did, probably, admittedly, minimal research in looking at them and thinking, ‘I don’t think they’re going to work as well, and I can’t trial them anyway’.
[161] Transcript 110.
[162] Transcript 111.
[163] Transcript 110.
As to those options, Ms Reynolds was referred to the diagrammatic presentation of 20-odd Thermomix functions.[164] Ms Reynolds agreed that the Applicant already had a kettle-tipper, could warm up food in her microwave, and boil eggs, so did not need an all-in-one machine to perform those functions. As to peeling, slicing, grating and chopping, she agreed that lower cost or similar machines would be suitable, if the Applicant could successfully use them.[165] She had considered air fryers or slow cookers could do things that the Thermomix could not, but they too had limits as to what they could do.[166]
[164] Transcript 112-113; Exhibit A3.
[165] Transcript 112-113.
[166] Transcript 118.
Ms Reynolds agreed that if the Applicant had a Thermomix it would simplify some cooking processes for her, and might mean less need for adaptive utensils or other lower cost devices to assist her. But she conceded that even with a Thermomix, the Applicant would still have to sometimes cut up food, including hard vegetables, to use in it, but there would be less cutting. The Applicant would still need the oven or other cooking methods for recipes, such as for baking and roasting.[167]
[167] Transcript 130.
Mr Reynolds accepted that there were other adaptive cooking aids – ‘potentially one or two’ – available to reduce the risk of injury when the Applicant uses her oven or her stovetop, but didn’t think they would eliminate the risks, especially of splash burns when using saucepans and frying pans.[168]
[168] Transcript 130.
Ms Reynolds had not considered what cooking training the Applicant might receive as a part of her NDIS Plan to expand her repertoire of meals by using a microwave, as it didn’t necessarily take away the ‘difficulties’ of preparation and the dangers of taking out steaming food.[169]
[169] Transcript 113.
Ms Reynolds was asked about the Applicant’s refusal to undertake an assessment by Mr Fielke. There was some uncertainty about this evidence. It seems that Ms Reynolds had been told by the Applicant’s support worker that the Applicant had been asked to have an independent assessment, and Ms Reynolds understood the Applicant was ‘frustrated’ that ‘the process’ was taking too long, had been through enough assessments, and didn’t feel the need for another. Ms Reynolds advised that it was the Applicant’s choice whether to have the independent assessment.[170] No particular concerns about Mr Fielke doing the assessment were discussed,[171] although the question of his experience with deaf-blind people had been ‘mentioned’ by someone.[172] She had subsequently received and had ‘briefly read’ Mr Fielke’s report, but hadn’t studied it.[173] It had not changed her views.
[170] Transcript 131.
[171] Transcript 95.
[172] Transcript 132.
[173] Transcript 94, 131.
The Applicant had sent Ms Reynolds a copy of the Respondent’s Statement of Facts, Issues and Contentions of 23 May 2024. The latter report of 27 May 2024 was prompted, in part, by that and in part by the knowledge that she would be giving evidence and wanting to provide up-to-date information and correcting information, given that her first assessment was some two-and-a-half years old.[174] Notwithstanding the Applicant’s having had enough assessments, she was happy for Ms Reynolds to do another for the report.[175] This was done on 27 May 2024, two days before the commencement of the hearing before the Tribunal, and arranged at Ms Reynolds’ initiative – the Applicant did not request it.[176] It was done virtually via video. An interpreter was available for part of the assessment, to instruct the Applicant as to what Ms Reynolds wanted her to see.[177] The assessment involved the Applicant cutting a carrot into several pieces (without finger protection), lifting pots and pans, and placing an oven tray into and taking it out of the oven. The purpose of the assessment was ‘to make sure it fit what I had seen previously, that there was no major change in her function’. The Applicant was able to perform those tasks, but it was ‘difficult’.[178]
[174] Transcript 95.
[175] Transcript 97.
[176] Transcript 125.
[177] Transcript 127.
[178] Transcript 128.
As to informal support from her husband, Ms Reynolds believed that the Applicant’s husband did take hot things out of the oven if they were too heavy for her.[179] The Applicant spoke to Ms Reynolds about how much she enjoyed cooking, but didn’t explain that it was a hobby that she liked to share with her husband.[180] Ms Reynolds said his informal support would not have changed her recommendation.[181] She was looking at the Applicant’s desire to be independent with her cooking and not relying on her husband.
[179] Transcript 113.
[180] Transcript 115.
[181] Transcript 117.
Consultant Occupational Therapist Brenton Fielke
The Respondent called Occupational Therapist Brenton Fielke to give evidence, having commissioned a report from him which he prepared on 13 October 2023.[182] He has practiced as an occupational therapist for 32 years, and conducting functional capacity assessments in NDIS matters for four to five.[183] He has experience in undertaking such assessments with persons with hearing and visual impairments, is dealing with four visually impaired participants at present, and seen others over the last few years.[184] He was obliged to do his assessment and evaluation on the papers, included amongst which were, with one exception, the several reports from Ms Reynolds.[185] The exception was the most recent report dated 27 May 2024 following the Respondent filing its Statement of Facts, Issues and Contentions. However, having since had the opportunity to consider that report, advised the Tribunal that it did not change his views.[186]
[182] Exhibit R1 Tab 19, Hearing Tender Bundle 132-144.
[183] Transcript 137.
[184] Transcript 137-138.
[185] Transcript 138-139; Exhibit R1 Tab 19, Hearing Tender Bundle 134.
[186] Transcript 138-139.
In his opinion, a Thermomix was not a reasonable and necessary support, as he could not ‘find consistent evidence recommending the applicant required a cooking device’.[187] In reaching that conclusion, and having reviewed the supplied reports, he considered the information about the Applicant’s physical capacities and her sensory challenges against his knowledge and experience with those conditions in other applicants within the NDIS, and against other appropriate forms of assistance the Applicant may benefit from in regard to improving her independence and safety in the kitchen.[188]
[187] Transcript 139.
[188] Transcript 139; Exhibit R1 Tab19, Hearing Tender Bundle 144.
Mr Fielke considered that Ms Reynolds reports detailed difficulties with the Applicant’s physical capacities in handling, manoeuvring, and using kitchen equipment. However, they detail the Applicant’s ability to perform other activities of daily living, which are restricted by her vision but do not comment on any restrictions due to her physical capacities and hand function.[189] Having worked with many patients with arthritic complaints, he could see no evidence in the reports of there having been assistive technology used to address those deficits in the Applicant’s hand function, examples being ‘enlarged handles, different orientated handles on knives, other assistive devices to lift and carry, your lighter weight equipment. None of those were listed and I did not see that listed in the AT report completed by Ms Reynolds’.[190]
[189] Transcript 139.
[190] Transcript 139.
Ms Reynolds had also reported that the Applicant experienced difficulties related to the Applicant’s vision and auditory impairments, particularly regarding her safety in using knives and cutting, and in handling hot liquids or hot items.[191] There was no evidence in the reports that other assistive technology for people with visual impairments had been used or trialled with the Applicant.[192]
[191] Transcript 139.
[192] Transcript 140.
Those types of assistive technology are substantially cheaper than a Thermomix: some items available from VisAbility range between $20 to $30, a ‘safe knife could be $40, a finger guard to protect your digits while using a knife is $10, a stand up slicer recommended by VisAbility for people with visual impairment is $90’.[193]
[193] Transcript 140.
As reasonable and necessary supports for the Applicant to achieve her goal to increase her cooking skills while staying safe in the kitchen, Mr Fielke would recommend that an occupational therapist spend time working with Applicant to identify assistive technology ‘which are fairly standard items for people with visual impairment’, trial items, and train her to use them safely and improve her independence using them.[194]
[194] Transcript 140, 142.
Examples of the items Mr Fielke had in mind included: a metal, comb-like device to secure vegetables and through which a knife can slice without having one’s hands near the blade, finger guards, specialised knives, stand-up dicers with finger guards, special cutting boards to secure items, special peelers, cut resistant gloves, heat resistant gloves, devices to inform about the level of liquid within containers, tilting kettles, silicone mats which can go over the top of a cooking pot to reduce splashing, and automatic stirring devices that can obviate the need to hold a pot. [195]
[195] Transcript 140-141.
Under cross-examination by the Applicant, Mr Fielke advised that although he had as an occupational therapist worked with many people ‘with dual disabilities’, he had not worked with people with the specific combination of being ‘deaf and blind’.[196] He had not ‘used’ assistive technology such as a Thermomix for anyone that is deaf-blind.[197] However, he would exhaust all options for a deaf-blind person before recommending a Thermomix:
People have been cooking with visual impairment for many years before the Thermomix was available. … I would like the person to maintain their other skills within the kitchen as much as possible. So I think I would look at equipment that’s recommended by organisations like Visibility, Vision Australia, et cetera, as they’re [sic] first guide for assisting people with vision impairment before I investigate a Thermomix.[198]
[196] Transcript 141.
[197] Transcript 142.
[198] Transcript 147.
However, although Mr Fielke had never recommended a Thermomix[199] he had seen them used by people with reduced cognitive capacities:[200]
DEPUTY PRESIDENT: Well just picking up on that then, Mr Fielke, for what sort of conditions would you recommend a device such as a Thermomix?
MR FIELKE: I’ve seen a number of people use it successfully to improve their independence where they’ve had cognitive difficulties. So difficulties planning and organising. So the Thermomix has been able to walk them through the recipe, keep them orientated to the cooking process, help them plan their way through, keep them engaged. … that’s been people with acquired brain injury. I recall another lady with schizophrenia who had intrusive thoughts, so that assisted her to remain more focused on the cooking tasks. So they were planning and organisational type activities difficulties and concentration type difficulties.
DEPUTY PRESIDENT: It’s fair to say it’s a labour saving device, combining a variety of different functions into one unit?
MR FIELKE: Yes, I mean I have one myself. So, yes, … I think it does save time. I guess it depends on the skill of the operator as well, and I guess it depends on the recipe. You know, making a bolognaise would be quite quick, or something like that. But it tends to be things that are wet in nature. You can’t bake with it, obviously. And there are other limitations from that – from the cooking perspective. So, yes, it has its specific niche, I think.
DEPUTY PRESIDENT: So far as – I’m not quite sure how to frame this – but there’s a distinction, it seems to me, between being able to prepare different types of foods and actually acquiring cooking skills. It’s one thing to put a variety of ingredients into a machine and following the process in order to get a product at the end, as opposed to acquiring the skills to prepare different dishes. Are you able to comment on that from your experience with a Thermomix? Do you find that your skills have improved, or you actually have to use less skill?
MR FIELKE: I wouldn’t have said my skills have improved. There’s no – it’s just – it’s another piece of equipment. I guess if you use it enough, your skills improve using it. But I wouldn’t – I wouldn’t necessarily (indistinct) I can cook a wider range of meals than I previously could. I just use it slightly different as a matter of convenience for some meals. As I said, like bolognaise, something like that.
[199] Transcript 145-146.
[200] Transcript 142-143.
THE APPLICANT’S CASE

The Applicant, in her closing submissions, summarised her arguments for a Thermomix.
Ms Reynolds conducted a Functional Capacity Assessment of the Applicant, which considered the Applicant’s disabilities, functional limitations and ‘daily challenges’, and assessed assistive technology for independence, safety, and ‘quality of life’. Ms Reynolds recommended the Thermomix after ‘trials and assessments…demonstrated the efficiency and safety of the Thermomix’.[201]
[201] Applicant’s Closing Submission dated 20 June 2024, paragraphs 8, 9.
Ms Reynold’s evidence and opinion should be persuasive and preferred to that of Mr Fielke. Ms Reynolds has experience with deaf and blind people;[202] Mr Fielke does not.[203]
[202] Applicant’s Closing Submission dated 20 June 2024, paragraphs 8, 9.
[203] Applicant’s Closing Submission dated 20 June 2024, paragraph 14.
The Applicant is familiar with the Thermomix. Ms Reynolds has assessed her successfully using one and she has attended trials and demonstrations with Deaf Blind Connect, as well as at home. Upon its purchase, a consultant will come to her home and assist with its set-up and a further demonstration, and for six months the Applicant will receive a free subscription for support.[204] The Applicant does not need further training with this product and feels confident she will be able to use one efficiently and safely.
[204] Applicant’s Closing Submission dated 20 June 2024, paragraph 16; the Applicant avers that she can continue the subscription for $69 per year and is ‘happy to be responsible for this cost’.
The Applicant has considered a cheaper alternative, the ThermoCook. It is more difficult for the Applicant to use and clean, and does not have features of the Thermomix she considers to be more convenient and safer.[205] A Thermomix would also obviate any need for her to have support from an occupational therapist, or other kitchen items that would achieve the same result, resulting in savings that would outweigh the cost of the Thermomix.[206] In that respect, it would be ‘Value for Money’[207] and provide long term benefits and value over time.[208]
[205] Applicant’s Closing Submission dated 20 June 2024, paragraph 12.
[206] Applicant’s Closing Submission dated 20 June 2024, paragraph 15.
[207] Applicant’s Closing Submission dated 20 June 2024, paragraph 7.
[208] Applicant’s Closing Submission dated 20 June 2024, paragraph 16.
The Applicant acknowledges that her husband provides informal supports.[209] However, she submits that her husband is also deaf, ‘cannot read or write’, has ‘very basic skills in the kitchen’, and ‘has no understanding of recipes’. He also has ‘diminished functional capacity and diminished cognition’. A Thermomix would ‘compliment’ the Applicant’s informal support, as her husband would also benefit from it.[210]
[209] Applicant’s Closing Submission dated 20 June 2024, paragraph 7.
[210] Applicant’s Closing Submission dated 20 June 2024, paragraph 11.
THE RESPONDENT’S CASE
The Respondent remains of the view that a Thermomix does not meet the legislative criteria for a reasonable and necessary support, in that it does not satisfy section 34(1)(c) of the NDIS Act. Although the Applicant’s Statement of Participant Supports does not include a Thermomix to be funded as part of the $20,000 provided for assistive technology as Capital Supports, she can apply funding provided under Capacity Building Supports to achieve her stated goals.
CONSIDERATION
The Thermomix is an ‘all-in-one’ labour-saving device. It purports to replace ‘over 20’ kitchen appliances by one unit, and so save time and effort in preparing meals or components of meals. It claims to ‘chop, blend, whip, weigh, mill, kneed, mince, sear, sous vide’ and more ‘at the touch of a button’.[211] It is a time- and effort-saving luxury, rather than a necessity. It is something out of the financial reach of most households, whose cooks purchase appliances and utensils that they can afford based on what they need or are likely to use, albeit that they may take more time to use and clean, and meals may take more steps and time to prepare. Furthermore, the wide variety of tasks the Thermomix or like appliances can perform are beyond what most families are likely to use on a regular, let alone daily, basis.
[211] Exhibit R1 Tab 7, Hearing Tender Bundle 88, 208; Exhibit A2 5;
That is not to say that such a labour-saving device cannot also fill the role of assistive technology for those with a disability.
For it to do so, however, section 34(1) of the NDIS Act requires the decision-maker to be satisfied of each of the criteria in paragraphs (a) to (f). I appreciate that the Respondent’s primary opposition to a Thermomix is that a Thermomix does not satisfy the criteria prescribed by section 34(1)(c). However, it is proper that I turn my attention to all the relevant criteria, and so will consider each in turn:
Section 34(1)(a): the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
Bearing in mind that a Thermomix is a device that performs a variety of meal preparation and cooking functions in lieu of customarily used or required equipment and utensils, and in lieu of having to learn the techniques otherwise necessary to achieve a desired result, in my view it is not calculated to ‘increase’ a user’s ‘cooking skills’: indeed, it replaces the need to acquire, develop or employ them. Likewise, using such a device is not calculated to facilitate a person ‘learning how to cook a variety of meals’, rather than enabling the preparation of a variety of meals with as little effort as possible, albeit perhaps some meals which one might otherwise be disinclined to attempt.
I am satisfied that a Thermomix will enable the Applicant to use minimum effort to prepare a wide variety of meals relatively safety and will be more convenient to use and maintain than similar products. However, it will not produce all the current meal options that the Applicant and her husband currently enjoy. It will not eliminate the need for the Applicant and her husband to use a saucepan or stovetop or oven or, perhaps, microwave for some of the meals that they presently enjoy. It will not eliminate the need for one of them to do some cutting of ingredients for use in the Thermomix. It will not be a substitute for gaining the skills and use appropriate equipment to prepare meals independently, especially those meals that a Thermomix cannot prepare.
The Applicant has supports under her current Plan that she can apply to increasing her cooking skills and master techniques to prepare meals safely and effectively.
A Thermomix may increase the range of meals that the Applicant may, at some time, wish to prepare. But I am not satisfied that it will assist the Applicant to pursue her goal of increasing or enhancing her cooking skills, rather than being a labour-saving device. It is not, in that respect, a ‘necessary’ support.
Section 34(1)(b): the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
Leaving aside the question of whether, in its context, ‘activities’ takes the same meaning as where it appears in section 24(1)(c) of the NDIS Act,[212] I am satisfied that a Thermomix or comparable product will assist the Applicant to undertake cooking.
[212] National Disability Insurance Agency v Foster [2023] FCAFC 11.
However, unless social participation includes the preparation of meals for herself and her husband, I am not satisfied that it or a comparable device will facilitate the Applicant’s social and economic participation.
It would make the preparation of some meals easier. But it is plain to me from the evidence that the Applicant is able with the formal and informal supports currently available to prepare for herself and her husband a reasonable range of varied and nutritious meals and, in so doing, maintain the ability to continue her employment. There is no evidence that having a Thermomix to ease meal preparation will facilitate – in the sense of ‘make easier’ – her economic participation. Nor does the evidence persuade me that her desire to eat healthily is compromised by not having a Thermomix, or that it will necessarily improve her diet.
There has been no evidence as to the Applicant’s social life or how it has been limited without, or may be assisted by, what she hopes from a Thermomix or similar device.
I should mention that Ms Reynolds does touch on social and economic participation in her Assessment Template of 22 November 2021[213] and in her response of 16 January 2023 to the Respondent’s Statement of Issues of 6 December 2022.[214] In the latter,[215] she argued that by reason of the Applicant’s deafness and blindness, and reliance on Auslan and braille to communicate, if she sustains injuries to her fingers, hands or shoulders during meal preparation tasks they would ‘severely reduce her ability’ to communicate. Finger burns ‘would impact her ability to “feel” Braille’ and repeated burns over time ‘could also potentially damage sensation in her fingers, leading to permanent loss of sensation’. Further ‘finger, hand or shoulder injuries would limit her upper limb range of motion and strength required to sign Auslan’. Sustaining upper limb injuries would have extremely debilitating consequences on her social and economic participation. A Thermomix would enable the Applicant ‘to maintain her upper limb mobility, allowing her to engage in daily communication during social and economic activities’.
[213] Exhibit R1 Tab 7, Hearing Tender Bundle 52-53, 171-172.
[214] Exhibit R1 Tab 1, Hearing Tender Bundle 3-6.
[215] Exhibit R1 Tab 8, Hearing Tender Bundle 96-97.
These arguments strike me as a long bow to draw to reach the target of social and economic participation. Otherwise, reduction of a potential hazard that might affect the Applicant’s ability to communicate to the degree that it may have an impact on her social and economic participation falls short, in my view, to a support that ‘will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation’: to my mind, section 34(1)(b) requires the demonstration of a more positive benefit from the support to assist an applicant to achieve social and economic participation.
In the Assessment Template, Ms Reynolds adds that the Applicant can use the Thermomix ‘to develop cooking skills, increasing her skills for daily living. Skill development increases [the Applicant’s] potential for community participation’.[216] Leaving aside whether the Thermomix will ‘increase the Applicant’s cooking skills’, the evidence does not indicate how increased cooking skills with such a device would increase the Applicant’s ‘skills for daily living’ or increase her ‘potential for community participation’.
[216] Exhibit R1 Tab 7, Hearing Tender Bundle 53, 172.
Having regard to all the above, I am not persuaded that a Thermomix would ‘facilitate’ the Applicant’s social or economic participation or that its absence has been detrimental to the same.
Section 34(1)(c): the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
Having regard to the evidence and the several considerations prescribed in rule 3.1 of the Supports Rules, I am not satisfied that a Thermomix represents value for money relative to the benefits to be achieved. It is true that it would perform a wide variety of functions in a convenient and relatively safe manner. However, the evidence of Ms Reynolds and Mr Fielke satisfy me that it has been recommended to the Applicant as a convenience, rather than as a necessity after all reasonable lower-cost alternatives have been fully considered, explored, and dismissed on sound grounds as being inadequate to enable the Applicant to prepare meals safely and effectively (albeit with care and some additional effort).
Mr Fielke identified a variety of low-cost adaptive utensils and assistive technology available to assist with the preparation of meals and perform functions of which a Thermomix was capable. They can also perform some of the tasks that the Applicant and her husband currently do, and which a Thermomix cannot do or which they will not call upon from a Thermomix.
The Applicant says that she had not known of, let alone tried, many of them. Ms Reynolds admits that these alternatives, including various items to increase her safety, were not recommended, or tried, in favour of a Thermomix – indeed, even at the most recent assessment the Applicant demonstrated how she cut a vegetable with caution because she was not wearing inexpensive and readily available finger protection. Instead of exploring how the Applicant may be able to perform meal preparation tasks with adaptive or low-cost articles, Ms Reynolds’ immediate thought appears to have been to recommend a high-range labour-saving device be funded by the NDIS.
Ms Reynolds’ focus on the Thermomix as the solution to the Applicant’s issues, along with the inconsistencies between what is reported in her assessments and the evidence at the hearing, leads me to prefer the evidence of Mr Fielke. It may also have been a disservice to the Applicant, who in the time that has elapsed while hoping for a Thermomix could have benefited from advice and assistance to improve her ability to prepare meals safely using other techniques, and readily available and less expensive adaptive utensils and equipment.
The Applicant may have her heart set on a Thermomix to be funded by the Respondent, and so be disinclined to consider or think as adequate any alternatives. But the evidence is that the Thermomix is capable of functions that the Applicant and her husband do not presently require, or which may be safely performed by other adaptive items they presently possess or could acquire for lesser cost.
Section 34(1)(d): the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
I am satisfied that a Thermomix or comparable device would be effective and beneficial to the Applicant. As a labour-saving device it would ease the burden of preparing meals, enable her to prepare a wider range of meals – should she choose to exploit its capabilities – and do so relatively safely.
Section 34(1)(e): the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
I am not satisfied that the funding or provision of a Thermomix or like device sufficiently takes account of what it is reasonable to expect her husband to provide.
The evidence is that the Applicant and her husband enjoy cooking together. Each has their preferences, but there is no suggestion of discord between them or differences in dietary requirements or tastes that affect what appears to be a close and mutually supportive collaboration in the kitchen. The Applicant’s husband has long experience in food preparation. Just as the Applicant makes breakfasts and lunches and desserts, he makes many meals – and most dinner meals – and specialises in certain types. He assists with cooking tasks and cleaning up. It is a feature of domestic relationships, whether formalised by marriage or not, that partners divide household chores and assist each other as necessary or convenient. If the Applicant were alone or the husband’s disabilities limited him from providing satisfactory support the situation may be different, but that is not the case.
The emphasis on the Applicant’s wishes to be able to prepare meals on her own – ‘independently’ without reliance on anyone else – is laudable and to be encouraged and consistent with the objectives of the Scheme. However, in considering what supports should be funded or provided by the Scheme at public expense, a participant cannot be viewed in isolation and out of the context in which they live.
To the extent that the Applicant experiences difficulties in certain meal preparation tasks and in cooking, it is not unreasonable that they be alleviated with assistance from her husband, of whom there is no evidence of relevant incapacity.
I have noted that the Applicant’s closing submissions regarding her husband’s limitations. It is true that her husband’s ‘functional capacity was never addressed and that the Thermomix ‘would compliment my informal support in that my husband would also benefit from the Thermomix’.[217]
[217] Applicant’s Closing Submission dated 20 June 2024, paragraph 11.
I am satisfied that the Applicant’s husband would also benefit from the convenience of a Thermomix. It is also the case that the husband’s functional capacity ‘was never addressed’, in that no evidence presented as to that: notwithstanding that the Applicant’s husband was present at the hearing, he was not called to give evidence and there was no professional assessment of his abilities before the Tribunal. To the extent that Ms Reynolds makes mention of the husband in her reports, there is no indication that her comments are based on having observed or assessed him.
As for his capacities, the evidence is that he has had over 14 years’ experience in ‘food preparation’, takes the lead in preparing dinners, prompts the Applicant when she overlooks ingredients in recipes, assists her with tasks she cannot safely or effectively perform, and generally collaborates in an activity they both enjoy.
In any case, as this additional argument regarding the husband’s limitations has been supplied in response to the Respondent’s submissions and after the close of the evidence and the hearing, I do not allow it to influence my consideration of the matter.
Section 34(1)(f): the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services …
If the other criteria are met, there is no evidence that the support being sought would be other than appropriately funded by the NDIS. In the circumstances, the question is moot.
CONCLUSION
In short, the Thermomix is a ‘many’, if not ‘all’, ‘in-one’ device which saves time and labour in preparing ingredients for or cooking certain types of meals. However, on the evidence before the Tribunal, and in the circumstances and for the reasons above, it is not a reasonable and necessary support.
Having regard to the above, I am not satisfied that the Applicant’s request for a Thermomix is a reasonable and necessary support that should be funded by the NDIS.
Accordingly, I affirm the decision under review.

I certify that the preceding 130 (one hundred and thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Mischin

.........................[Sgd]...............................................
Associate
Dated: 16 September 2024

Date(s) of hearing: 29, 31 May 2024

Date of final submissions: 27 June 2024

Applicant: In person

Counsel for the Respondent: Ms J Flinn
Ms E Chen

Solicitors for the Respondent: Makinson d'Apice Lawyers

Date(s) of hearing:	29, 31 May 2024
Date of final submissions:	27 June 2024
Applicant:	In person
Counsel for the Respondent:	Ms J Flinn Ms E Chen
Solicitors for the Respondent:	Makinson d'Apice Lawyers