Buckley and National Disability Insurance Agency
[2021] AATA 3622
•8 October 2021
Buckley and National Disability Insurance Agency [2021] AATA 3622 (8 October 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2020/5821
Re:Stephen Buckley
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member K Buxton
Date:8 October 2021
Place:Brisbane
The decision under review is set aside. The matter is remitted to the Respondent with a direction that the Statement of Participant Supports is to include sufficient funding for the supply and installation of the Visualert system (in accordance with quotes dated 28 January 2020 and 17 May 2020).
...............[SGD]...............
Member K Buxton
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – participant supports – reasonable and necessary supports – value for money – visual alert system - tailored and flexible responses to the individual goals and needs of the participant
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 37, 38AA
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 9, 17A, 31, 33, 34, 35, 100, 103, 118, 209
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) rules 3.1, 5.1
Cases
McGarrigle and National Disability Insurance Agency [2017] FCA 308
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Secondary Materials
‘Access to the NDIS Operational Guidelines’, National Disability Insurance Agency (Web Page, 5 October 2021)<
REASONS FOR DECISION
Member Buxton
On 8 September 2020, Mr Buckley (‘the Applicant’) applied to the Tribunal, pursuant to section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (‘the NDIS Act’), for review of a decision of the National Disability Insurance Agency (‘the NDIA’) made under s100(6) of the NDIS Act on 31 August 2020.[1]
[1] Exhibit 1, T-documents, H3.
The Applicant is a 57-year old man with profound deafness.[2] He has been a participant of the National Disability Insurance Scheme (‘the NDIS’) since 5 February 2018.[3] The Applicant lives with his wife, who is also deaf, in a Department of Housing home in Queensland.[4] He has adult hearing children who no longer live with him.[5]
[2] Exhibit 1, Statement of Facts, Issues and Contentions, H1, [2].
[3] Ibid.
[4] Ibid [6].
[5] Ibid [5].
On 23 March 2020, a delegate of the Chief Executive Officer of the Respondent made a decision under subsection 33(2) of the NDIS Act to approve a plan of participant supports for the Applicant, with a review date of 23 March2021.[6] The plan included the following supports:[7]
[6] Exhibit 1, T-documents, H9.
[7] Exhibit 2, Agreed Statement of Facts and Issues, [7].
Support Description Amount
Core supports (Including Assistive technology) Plan managed $14,822.04
Capacity Building
Supports Improved Life Choices – NDIA managed $ 1,454.89Improved Daily Living – Plan managed $ 3,093.63
TOTAL $19,370.56
The delegate did not include, in the plan approved in his Statement of Participant Supports, funding to allow for the purchase and installation of a ‘Visualert System’ including: interconnection to multiple alarms (vibrating bed shakers, smoke alarms, front doorbell); hardwiring; a backup lithium battery; and light outlets (colour-coded to match the multiple alarms) in 8 locations of the Applicant’s home (3 external and 5 internal, including wet areas).[8] The system, was quoted at $7,124 plus a cost of $772 for installation ($7,869 in total).[9]
[8] Ibid [9].
[9] Exhibit 1, H6, part 8 – Recommended AT Specifications.
On 9 June 2020 the Applicant sought internal review of the delegate’s decision and requested that funding for the Visualert System be included in his plan.[10] On 31 August 2020 the reviewer notified the Applicant that the original decision was affirmed.[11] On 8 September 2020 the Applicant applied to the Administrative Appeals Tribunal for a review of the internal review decision.[12]
[10] Exhibit 2, Agreed Statement of Facts and Issues, [10].
[11] Exhibit 1, T-documents, H5.
[12] Exhibit 1, T-documents, H2.
A hearing was convened on 7 and 8 September 2021 to consider the evidence and submissions of the parties, and the proceedings were interpreted with the assistance of Auslan interpreters. The Applicant was represented by Ms Girvan, advocate and the Respondent was represented by Ms Musgrove of counsel. The Applicant gave oral evidence at the hearing, as did Ms Dreyer, Occupational Therapist called by the Applicant, Ms Davidson, Occupational Therapist called by the Respondent and Mr Willis, also called by the Respondent. A number of documents, including documents provided by the Respondent under subsections 37(1) and 38AA of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) and documents supplied by each of the parties were admitted into evidence and marked H1 to H39. An additional undated document, authored by Mr Willis and entitled “Information about using the BE1442 Flash Receiver in bathrooms and laundries”, was provided by the Respondent after the hearing and this has been admitted into evidence and marked H40. In reaching its conclusion, the Tribunal has considered the documentary evidence, together with the evidence given and submissions made during the hearing.
For the reasons which are set out below, the decision under review is set aside. The matter is remitted to the Respondent with a direction that the Statement of Participant Supports in the relevant plan is to include sufficient funding to enable the purchase and installation of the Visualert System in accordance with the quote for $7,124 plus $772 for installation.[13]
RELEVANT LEGISATION
[13] Exhibit 1, T-documents, H6, Appendix 3 – Quotations.
The NDIS statutory framework
The objects and principles of the NDIS Act are set out in Part 2 of the NDIS Act. Subsection 3(1) of the NDIS Act relevantly includes:
(1)The objects of this Act are to:
…
(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 launch; 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)facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(g)promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the mainstream community; and
…
Section 4 of the NDIS Act sets out the General Principles guiding actions under the NDIS Act and they relevantly include:
(1)People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
(2)People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.
(3)People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(4)People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5)People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
…
(8)People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.
…
(11)Reasonable and necessary supports for people with disability should:
(a)support people with disability to pursue their goals and maximise their independence; and
(b)support people with disability to live independently and to be included in the community as fully participating citizens; and
(c)develop and support the capacity of people with disability to undertake activities that enable them to participate in the mainstream community and in employment.
…
(15)Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.
(16)Positive personal and social development of people with disability … is to be promoted.
Section 17A of the NDIS Act contains principles relating to the participation of people with disabilities including:
(1)People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.
…
(3)The National Disability Insurance Scheme is to:
(a) respect the interests of people with disability in exercising choice and control about matters that affect them; and
(b) enable people with disability to make decisions that will affect their lives, to the extent of their capacity; and
(c) support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability.
The functions of the agency are set out in section 118 of the NDIS Act and include the following relevant functions:
(1)The Agency has the following functions:
(a)to deliver the National Disability Insurance Scheme so as to:
(i)support the independence, and social and economic participation, of people with disability; and
(ii)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(iii)ensure that the decisions and preferences of people with disability are respected and given appropriate priority; and
(iv)promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and inclusion in the mainstream community.
…
Reasonable and necessary supports in participant’s plans
Chapter Three of the NDIS Act deals with individual plans under which reasonable and necessary supports will be funded for participants in the NDIS. Subsection 31(1) of the NDIS Act sets out the principles relating to the preparation, review and replacement of a participant’s plan. These principles are generally reflective of the General Principles set out in section 4 of the NDIS Act and expressly include, amongst other things, that these processes should:[14]
[14] NDIS Act s 31.
(a)Be individualised;
(b)Be directed by the participants; and
…
(j)Facilitate tailored and flexible responses to the individual goals and needs of the participant.
…
Section 33 of the NDIS Act deals with the contents of a participant’s plan. Subsection (1) sets out the requirements with respect to the participant’s statement of goals and aspirations, including that they are prepared by the participant. Subsection (2) applies to the statement of participant supports which must also be included in the plan, and which must be prepared with the participant and approved by the CEO. Subparagraph 33(2)(b) specifically provides:
(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:
…
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
…
Subsection 33(5) of the NDIS Act states that the matters to which the CEO must have regard in deciding whether or not to approve the statement of participant supports are as follows:
(5)In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a)have regard to the participant’s statement of goals and aspirations; and
(b)have regard to relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of section; and
(e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f)have regard to the operation and effectiveness of any previous plans of the participant.
Subsection 34(1) of the NDIS Act provides, with respect to reasonable and necessary supports, 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.
The Respondent submitted that only subsections 34(1)(a) to (e) were relevant in this case and that it was not necessary for the Tribunal to consider subsection 34(1)(f), except insofar is determining whether the Visualert system was the appropriate assistive technology to be so funded.[15]
[15] Exhibit 1, T-documents, H1 at [94].
The term ‘support’ is not given a meaning in the NDIS Act. A ‘support’ is defined in section 9 of the NDIS Act as including ‘general supports’, being those defined in subsection 13(2) of the NDIS Act as the kind of supports provided by the NDIA itself. However, the term ‘support’ and the phrase ‘reasonable and necessary’ are not further defined in the NDIS Act. In McGarrigle v National Disability Insurance Agency [2017] FCA 308 at 91 (‘McGarrigle’), Mortimer J observed, with respect to those words:
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (‘the Rules’) made pursuant to subsection 35(1) of the NDIS Act provides further guidance with respect to the assessment of reasonable and necessary supports that will be funded. Pursuant to section 209 of the NDIS Act, the Rules are a legislative instrument and are therefore binding to the Tribunal. In this case the relevant rules include:
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).
…
General criteria for supports
5.1A 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
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
The NDIS Operational Guidelines, Operational Guideline – Including specific types of supports in plans (‘Operational Guidelines’), provide detailed policy to assist the NDIA in exercising its functions and powers in making decisions relating to the approval of specific types of supports in participant plans. Although this policy is not binding upon the Tribunal, it should be applied by the Tribunal unless it is inconsistent with the provisions of the NDIS Act.[16] Part 14 of the Operation Guidelines deals expressly with assistance animals and is referred to in more detail below.
[16] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
ISSUE AND DECISION UNDER REVIEW
The issue to be decided by the Tribunal is whether funding for the provision of the
Visualert System, is a reasonable and necessary support pursuant to section 34 of the NDIS Act.
On 31 August 2020, a delegate completed an internal review decision under subsection 100(6) of the NDIS Act and confirmed the Respondent’s earlier decision to decline funding for the Visualert System.[17] In expressing reasons for the decision, the delegate stated that Rule 5.1 of the Rules prevented the funding on the basis that Rule 5.1(a) could not be satisfied (there was no information to show that the Visualert System would be hardwired by an appropriately qualified electrician and therefore may cause harm to the Applicant or pose a risk to others) and that Rule 5.1(c) could not be satisfied because the Visualert System duplicated other funded supports.[18]
[17] Exhibit 1, T-documents, H4.
[18] Ibid.
The Tribunal will consider the facts relevant to the issue before the Tribunal within the relevant legislative framework of the scheme.
EVIDENCE
Mr Buckley
The Applicant gave sworn evidence at the hearing. The Applicant lives with his wife in accommodation provided through the Queensland Government.[19] He is profoundly deaf.[20] His wife is also deaf and has health issues.[21] The Applicant is the full-time carer for his wife.[22] His children are now adult and no longer live at home, leaving no hearing occupants in the home.[23]
[19] Exhibit 2, Agreed Statement of Facts and Issues, [4]-[6].
[20] Ibid.
[21] Ibid.
[22] Ibid.
[23] Ibid.
It is accepted by the Respondent that the Applicant requires funded supports to provide visual notification in his home when a fire alarm is sounded and when the front door-bell is pressed.[24] The evidence of the Applicant therefore focussed upon the type of visual notification system that he considered best met his needs.
[24] Transcript, P-3, lines 20 – 21.
During his evidence the Applicant touched upon the goals in his participant’s plan. Most relevant to this review are following extracts from the Applicant’s goals:[25]
(a)I would like to improve my safety when I am at home…;
(b)I would like to develop strategies for managing my own health and wellbeing.
[25] Exhibit 1, T-documents, H9.
The Applicant stated that he relies of visual alerts or vibrating devices for doorbell and fire alarm notification, as well as visual communication.[26] He currently has the following assistive technology for visual notifications:[27]
(a)Bellman Alert System with flash receivers and pager;
(b)Apple watch (recently upgraded) and iPhone;
(c)Brooks Fire Alarm System suitable for deaf residents, installed in recent months by, and at the expense of, Queensland Housing.
[26] Exhibit 1, T-documents, H14 and H22.
[27] Ibid.
The Applicant stated that the alert systems and technologies currently available to him do not suit his needs.[28] He explained that he was convinced, by his local area co-ordinator for the NDIS, to purchase the Bellman system with the limited assistive technology funding provided by the NDIS not long after he became a participant in the scheme (which was February 2018) but that it was not a system that he had requested.[29] He stated that he has since become aware of the Visualert System and had become aware of positive reviews and feedback on that system from some deaf friends and people in the deaf community.[30]
[28] Transcript, P-6, lines 44 – 45; P-7, lines 15 – 23.
[29] Ibid, P-12, lines 38 – 48.
[30] Ibid, P-7, lines 6 – 10.
The Applicant stated that he Visualert system suited his disability because “it’s hardwired, and my home is small. There’s not enough electricity sockets and so that’s where I’m restricted at the moment”.[31] He considered it important to have a hardwired system and stated that the need for multiple power boards was a fire risk and he did not want to use multiple sockets.[32] He stated that his home was far too cluttered and did not want extra shelves to display the Bellman and wanted his home to be safe to live in.[33]
[31] Ibid, P-7, lines 12 – 23.
[32] Ibid, P-7, lines 42 – 46.
[33] Ibid, P-14, lines 19 – 23.
The Applicant stated that the LED lights would assist him to see notifications more clearly and to feel safe in his own home.[34] He stated that the Bellman system was not safe for wet areas and that the Visualert system was safer as it would not be plugged in near taps, which “isn’t obviously very safe”.[35]
[34] Ibid, P-7, lines 15 – 24 and 42 – 46.
[35] Ibid, P-11, lines 11 – 15.
The Applicant stated that he had faced frustration with the current systems he used for visual notifications.[36] This included evidence that he wears glasses permanently during the day but cannot see the flashing light in the Bellman System during the day,[37] and also because only two transmitters were placed in his home, one in the living area and the other in the bedroom.[38] He stated that this is limited from where in his home he could receive alerts.[39] He stated he currently has no way of being notified of a fire if he were in the bathroom unless his wife was also at home and could notify him.[40] The applicant gave evidence that he and his wife are not always at home together and that one of them may be at home alone “quite often”.[41]
[36] Ibid, P-8, lines 12 – 16.
[37] Ibid, P-8, lines 37 – 40.
[38] Ibid, P-9, lines 16 – 22.
[39] Ibid, P-9, lines 1 – 10 and 16 – 28.
[40] Ibid, P-13, lines 31 – 42; P-14, lines 1 – 6.
[41] Ibid, P-14, lines 4 – 11.
The Applicant gave evidence that the Bellman system would not alert him to the front door bell if he was not able to see the transmitter in either the lounge room or the bedroom, and that the alternative, to “actually remove the device and take it to a different room to solve the issue” made “absolutely no sense”.[42]
[42] Ibid, P-15, lines 7 – 11 and lines 29 – 31.
The Applicant discussed bed-shaking or vibration-type devices. He stated that he did not wish to have a vibration-type device (pads located underneath a mattress that would shake to signal an alert) in order to wake him, but stated that he would accept vibration pads as a firm alarm notification for when he is asleep.[43] He did not have these vibrating pads linked to the recently installed Brooks fire alarm system.[44]
[43] Ibid, P-23, lines 21 – 29.
[44] Ibid, P-23, lines 38 – 44.
The Applicant was asked by counsel for the Respondent about a variety of alternatives to relying on the visual alert system when he was expecting a visitor to come to his home. She suggested to the Applicant that he could place a note on the front door, await a text message or someone could just “walk around the back”.[45] The Applicant responded, generally, that he did not “understand the value of these questions” because his yard was secured with a padlock, he did not always have his phone with him to receive a text and could not expect someone he did not know to text him.[46]
[45] Ibid, P-31, lines 5 – 35.
[46] Ibid, P-31, lines 5 – 35.
The Applicant was asked by counsel for the Respondent about a range of measures that might address the various concerns he had expressed in relation to visual notification, and these proposed measures, and the Applicants responses to them, can be summarised thus:
(a)Adding additional Bellman receivers, to which the Applicant responded that he did not have sufficient power points, and used many other devices in his home, including his CPAP machine and charging of his wife’s cochlear implant at night;[47]
(b)Adding shelves or brackets to house additional receivers, to which the Applicant noted that the existing power points would be too low and that this would create clutter and wires hanging everywhere;[48]
(c)Adding additional power points to accommodate the additional receivers, to which the Applicant replied that he did not like the idea of extra power points and that would not meet his goals or his preferences both as to clutter, safety and his needs;[49]
(d)Unplugging a Bellman receiver and using it on battery for short periods whilst in areas such as the bathroom and laundry, or using the pager for that purpose, to which the Applicant suggested that it was not practical to carry such items around with him and that doing so was not consistent with his desire for “default access” to notifications;[50]
(e)Using the pager whilst working or spending time outside in his yard or garage, to which the Applicant responded that it did not work outside other than just near the back door;[51]
(f)Mounting a bracket in the bathroom to place the Bellman receiver into, to which the Applicant stated that the bathroom was too small to accommodate the receiver on a bracket without risk of knocking it but that it could, possibly, be an option for him;[52]
(g)Installing a “Ring” doorbell system that could be paired to his Apple watch to enable notifications of the doorbell whilst in the toilet or laundry;[53]
(h)Investigating the prospect of changing the radio frequency on which the Bellman system operates, including in relation to the pager, about which the Applicant stated he was unsure;[54]
(i)Approaching the Bellman system, when alerted by the strobe, to see which coloured light was flashing in order to determine which of the front door bell or fire alarm was triggered, to which the Applicant responded that the Bellman is used for the front door but the new Brooks system was now used for fire alarm alerts, and that the Visualert system would combine both and with red and blue lights that were easy to see;[55] and
(j)Undertaking his own research or contacting the supplier of the Bellman system for assistance with the products, to which the Applicant replied that he had not done so.[56]
[47] Ibid, P-32, lines 25 – 30.
[48] Ibid, P-33, lines 4 – 7.
[49] Ibid, P-48, lines 27 - 46; P-49 lines 10 – 45.
[50] Ibid, P-34, lines 7 – 9 and26 – 30.
[51] Ibid, P-42, lines 32 – 43.
[52] Ibid, P-35, lines 40 – 46; P-36, line 1 – 33.
[53] Ibid, P-34, lines 45 – 46; P-35, lines 3 – 8.
[54] Ibid, P-39, lines 25 – 27; P-42 lines 33 – 46; P-43 lines 1 – 3.
[55] Ibid, P-41, lines 26 – 47; P-42, lines 1 – 3.
[56] Ibid, P-43 lines 35 – 47; P-44 line 1.
Ms Dreyer
Ms Louise Dreyer, Occupational Therapist, prepared a report dated 17 January 2020 following an in-person assessment of the Applicant at the home in which he and his wife previously resided, followed up with an assessment using the on-line communication platform “Zoom” during which the Applicant was at the home he now shares with his wife. Ms Dreyer came to the following conclusions in this report:[57]
(a)The Applicant has a severe lack of safety in his home caused by the absence of visual and vibrating notification of the fire alarm and doorbell. As a result of his hearing disability he cannot hear the fire alarm, doorbell or phone ringing.
(b)His ability to be independently notified of these alarms is crucial to ensuring his safety. Lack of adequate notification devices puts the Applicant at high risk of serious injury or death, particularly in emergencies where he is unable to:
(i)Respond to emergencies occurring at night as a result of being asleep;
(ii)Receive an adequate warning in order to evacuate his home in the event of a fire; and
(iii)Be contacted by people at his from door, missing out on warnings of emergencies or important safety information.
[57] Exhibit 1, T-documents, H6.
Ms Dreyer considered the following factors as providing additional risk:[58]
(a)Multiple deaf residents in his home;
(a)Physical conditions of the Applicant, and his wife who is dependent upon him; and
(b)The Applicant’s home is located in a bushfire zone (although the Tribunal notes that it is unclear whether this related to his previous or current home, and this issue was not clarified during the hearing).
[58] Ibid.
The Applicant’s mental well-being was also said to be affected as a result of insights into his unsafe circumstances. Ms Dreyer stated that his ability to live independently was decreased by his lack of adequate notification services.[59]
[59] Ibid.
Mr Dreyer recommended an alert system that was hardwired (not reliant on wi-fi or susceptible to power outages) and would allow for multiple notification types in all areas of his home (including wet areas) and yard and that provided a durable, long-term solution.[60]
[60] Ibid.
Ms Dreyer stated that the Visualert system provided a long-term benefit to the Applicant as it is durable, with an extensive warranty of ten years for most components and could be transferred with him should he move to a new home.[61]
[61] Ibid.
During the hearing Ms Dreyer gave evidence consistent with the findings and recommendations in her report. She was challenged by counsel for the Respondent as to many of the factual assertions in her report. She maintained her evidence that the receivers in the Bellman system did not work for the Applicant because:[62]
(b)Sometimes, they did not work or provided false positives;
(c)Sometimes they were not seen by the Applicant, and therefore he did not receive the notification;
(d)They were not hardwired, and therefore any back up batteries would need be checked and charged; and
(e)They were not suitable for use in wet areas.
[62] Transcript, P57, lines 1 – 20; P-58, lines 1 – 24 and 40 – 47.
It is apparent from information made available to the Tribunal prior to the hearing, that Ms Dreyer’s husband is the shareholder in the company that distributes the Visualert system.[63] Ms Dreyer explained to the Tribunal during the hearing that she had been involved in the development of the system and that her husband, an entrepreneur, ran the business of distributing (but not manufacturing) Visualert products in Australia.[64] The Applicant was questioned about this issue during the hearing and stated that he had been made aware last year of this conflict of interest, arising from the indirect financial interest in the uptake of the Visualert system, but was not aware earlier.[65] Ms Dreyer was cross-examined extensively on the issue of this conflict of interest, and whether and when it had been disclosed to the Applicant. It transpired from Ms Dreyer’s evidence that the Applicant had not been informed of the conflict of interest when the Applicant initially sought for funding during his plan review but was made aware when Ms Dreyer assisted him with his application for internal review.[66] There is very little evidence before the Tribunal as to the extent to which funding for the Visualert was sought by the Applicant or considered in the original decision and, by the time the Applicant was agitating for review of his plan to include funding for the product, Ms Dreyer had made the Applicant aware of her indirect financial interest.
[63] Exhibit 1, T-documents, H33.
[64] Transcript, P-67, lines 6-30.
[65] Ibid, P-17, lines 4 – 7; P-18, lines 29 – 33.
[66] Ibid, P-75, lines 40 – 47; P-76, lines 1 – 20.
Counsel for the Respondent put the following propositions to Ms Dreyer in relation to the conflict issue, and her answers follow:
(a)I want to suggest to you that if you didn’t tell Mr Buckley, prior to you completing that initial report on 17 January 2020, that you had either a direct or indirect financial benefit in the Visualert system that you were not meeting your obligations in terms of disclosure? Well, I can say to you I did say it. I’m trying to be honest and say I told him that I created it and I helped make it. But did I use the words, “I have an indirect interest”?;[67]
(b)Well, Mr Buckley is deaf and so English is his second language, you would be cognisant, wouldn’t you, of the need to be very clear in what you say to Mr Buckley? Exactly. And therefore, I made sure that I made an updated video of the Visualert system explaining the service agreement and the conflict of interest that has gone onto Facebook, everywhere now, there is no hidden agenda;[68]
(c)Well, I'm going to suggest to you that because you only recommended the Visualert system to Mr Buckley, you have done that because you would receive a financial gain from it?---I did my research before I recommended the Visualert system. There is no other hard wired notification system that's better to be put outside and in wet areas. Therefore, I recommended that system, because of no other alternative solution.[69]
[67] Ibid, P-76, lines 8 – 13.
[68] Ibid, P-76, lines 8 – 20.
[69] Ibid, P-102, lines 19 – 24.
Ms Dreyer gave sworn evidence that her conflict did not affect her recommendations and that she considered that there was no alternative that me the needs of the Applicant.[70] She also stated that she recommends other products when suitable, including the Bellman system, which she recommends to about 70% of her clients.[71] Ms Dreyer stated that she was not against the Bellman product, but that she recommended it for people with circumstances that differed to those of the Applicant.[72]
[70] Ibid, P-76, lines 2 – 6.
[71] Ibid, P-85, lines 22 – 39.
[72] Ibid, P-85, lines 22 – 39.
Ms Davidson
Ms Judith Davidson, Occupational Therapist, prepared a report dated 16 June 2021 following an assessment of the Applicant using the on-line communication platform “Zoom” during which he was at the home he shares with his wife.[73] Ms Davidson did not consider whether the Applicant required a system of assistive technology for alerting him to visitors, the fire alarm and other events. Instead, Ms Davidson took as her starting point the availability to the Applicant of some technologies and considered whether he would be assisted by others. The Applicant currently uses the Bellman system. She came to the following conclusions in her report: [74]
(a)The Applicant’s current doorbell works well but does not pair with his iPhone or Apple watch;
(b)A “Ring” or “Bellman” system with a chime (battery powered) and a Bellman transmitter could be paired to his iPhone and apple watch;
(c)The Brooks Fire alarm offered a hardwired alternative (the Tribunal notes that this has now been installed); and
(d)The Bellman system could have additional receivers for every room in the house if the Applicant were to upgrade power points in his home and install shelves and brackets.
[73] Exhibit 1, T-documents, H22.
[74] Ibid; Transcript, P-125, lines 12 – 19; T-126, lines 32 – 4.
Ms Davidson observed that the Applicant presented as resilient and resourceful and his mental health did not appear to be affected as a result of concerns relating to alert systems.[75]
[75] Exhibit 1, T-documents, H22.
Ms Davidson stated that she would not have recommended the Visualert System as an appropriate system for fire alarm notification because she did not believe that the Applicant wished to use the vibrating alert.[76] Ms Davidson told counsel for the Respondent that her evidence on this point would change if the Applicant did now accept that vibrating alert technology[77] and later told the Applicant’s advocate that her recommendations would not have changed in those circumstances.[78]
[76] Transcript, P-118, lines 4 – 6.
[77] Ibid, P-114, lines 40 – 47; P-115, lines 1 – 7.
[78] Ibid, P-118, lines 4 – 6.
Ms Davidson stated that she had read information provided by the Respondent in relation to the Visualert system and looked in the internet for information but was told by the Respondent not to contact the hardware specialist for that system so had never seen it.[79] Ms Davidson also stated that she had seen a video on the internet as to how the Visualert system worked but that she did not believe what she saw on the internet.[80] Her evidence, she stated, came from what she actually sees face-to-face.[81]
[79] Ibid, P-118, lines 10 – 25.
[80] Ibid, P-118, lines 22 – 39.
[81] Ibid, P-118, lines 22 – 39.
Ms Davidson stated that the Bellman flash receiver can be placed in a bathroom.[82] Ms Davidson stated that she was aware of this from her own experience as she is hearing impaired and a user of the Bellman system in her home (although she had not included this information in her report as she was not asked).[83] She further stated that a recommendation against such use, if it were in the manual, would be to maximise its life, and as long as the NDIA was willing to replace it more often, it could be used in a wet area.[84]
[82] Ibid, P-122, lines 31 – 41.
[83] Ibid; P-123, lines 1 – 41.
[84] Ibid, P-122, lines 34 – 42.
Ms Davidson noted and accepted the Applicant’s concerns about additional electrical devices and the lack of power points in his home to support additional notification devices.[85]
[85] Ibid, P-127, lines 27 – 38.
Ms Davidson stated that a fire alarm cannot be placed in a wet area.[86] Ms Davidson stated that, if the Applicant were at the bathroom whilst his wife were at home, he could rely on her to notify him of relevant events. However, she stated that, if the Applicant was in the bathroom whilst his wife was not at home, he would be able to have the Bellman flash receiver with him.[87] The Tribunal asked some questions about where this might be plugged in so that it could be seen from the shower and Ms Davidson gave evidence that she did not know the layout of the Applicant’s bathroom, but if the device could not be seen from the shower when plugged in, it would be a matter for an electrician to advise as to whether and where in the bathroom an alternative power point might be placed.[88]
[86] Ibid, P-122, lines 35 – 36.
[87] Ibid, P-127, lines 40 – 48.
[88] Ibid, P-128, lines 35 – 47; P-129, lines 1 – 20.
Ms Davidson suggested that the Applicant could be notified of the doorbell whilst in the bathroom if the Ring doorbell were installed and if the Applicant wore his Apple Watch in the bathroom.[89] She further suggested that the Applicant could use a battery operated strobe from Brooks (the fire alarm supplier) and bring this into the shower (at times when he was not relying on his wife to notify him of alerts).[90] Ms Davidson was unable to say for how long a Brooks strobe would work from batteries when not on a charger.[91] She stated that it would be important for the Applicant that he have a Brooks strobe to be in every room of the house.[92]
[89] Ibid, P-129, lines 30 – 36.
[90] Ibid, P-130, lines 12 – 14.
[91] Ibid, P-131, lines 39 – 40.
[92] Ibid, P-132, lines 38 – 42.
Mr Willis
Mr Andrew Willis is the managing director of a business called “Word of Mouth Technology” (WMT), a supplier of assistive technology to those with a hearing impairment. WMT is a distributor of the Bellman Visit system.
Mr Willis provided a report, dated 2 July 2021, in which he endorsed the Bellman system as the preferred assistive technology for visual alerts and explained how any difficulties with the system that had been experienced by a user could be overcome, largely (although not exclusively) through the purchase of other Bellman products. [93] During his oral evidence Mr Willis stated that, apart from the Ring Doorbell (which WMT distributes) WMT does not recommend any system other than Bellman.[94]
[93] Exhibit 1, T-documents, H24.
[94] Transcript, P-158, lines 32 – 35.
In his report Mr Willis considered whether products other than the Visualert system would provide equal or better functionality for the Applicant’s home. Mr Willis stated that the Bellman system would provide “equivalent functionality” but noted that the Bellman system does not provide a 240V mains powered (referred to elsewhere in the evidence as “hardwired”) smoke alarm.[95] If such a smoke alarm were required this would require a combination of the Bellman and Brooks systems. Mr Willis concluded his consideration of this issue by stating: “In my expert opinion I do not recommend combining the Bellman Visit System and the Brooks system because operating two different platforms will require duplication of flashing lights around the home.”.[96] He stated that it would cost about $5,200 to install the Bellman system with the equivalent number of lights to the Brooks system.[97] It is not clear from this quote whether this is in addition to, or includes, some of the products already in the Applicant’s home.
[95] Exhibit 1, T-documents, H24.
[96] Ibid.
[97] Exhibit 1, T-documents, H24.
Mr Willis produced quote, attached to his report, in the total sum of $3,597 for 6 additional Bellman flash receivers (totalling $1,794) and for a variety of other items that may be required by the Applicant (including the updated model of smoke transmitter, at $638 and the sum of $380 for installation).[98] It is unclear from the report of Mr Willis what total additional sums would be required to improve the Applicant’s current visual notification system by enhancing what is already there (as opposed to starting anew with the Visualert system), and whether that would be $5,200 (or part thereof) for additional lights equivalent to the Brooks system, $3,597 per his quote, or some other amount.
[98] Ibid.
Mr Willis gave oral evidence that the Ring doorbell system may also be added to the Applicants technology and that this could be coupled with the Bellman system to send a signal to the Applicant’s smartphone.[99] The Ring doorbell retails for about $58 to $299.[100]
[99] Transcript, P-145, lines 39 – 47; P-146, lines 1 – 11.
[100] Exhibit 1, H27, H28, H29 and H30.
Mr Willis gave oral evidence that the Applicant purchased, in late 2019, the Bellman Visit Safe package with the smoke alarm, clock receiver and bed shaker, including lithium battery, and the Bellman Visit Care package with the flash receiver and push button (doorbell) transmitter and a pager.[101] Mr Willis stated that the Applicant had purchased an additional receiver and that it was possible to purchase further additional receivers if needed.[102]
[101] Transcript, P-149, lines 3 – 11.
[102] Ibid, P-149, lines 34 – 39.
Mr Willis stated that WMT offered customer service support via various platforms, including using team members with some Auslan skills.[103]
[103] Ibid, P-150 lines 1 – 20.
Mr Willis’ report was suggestive of the fact that radio frequency issues may arise in some homes and those homes might be better suited to the Visualert system, rather than the Bellman, and that a pre-test to determine suitability was available, although he had stated earlier in his report that radio frequency issues were not a common occurrence.[104] He stated that transmission range issues could be addressed by moving the transmitter in the house to a more central position.[105]
[104] Exhibit 1, T-documents, H24.
[105] Transcript, P-150, lines 25 – 32.
Mr Willis gave evidence that the Bellman receivers could be used in bathrooms[106] and supplemented his oral evidence with supporting statements made in an undated document marked H40 that was submitted by the Respondent after the hearing had concluded. I note the Applicant’s objection to this document on the basis that the Applicant had not been given the opportunity to cross-examine Mr Willis on these statements, and in particular on information Mr Willis had obtained from a technical officer of the manufacturer of the Bellman which stated that the product should not be placed in the shower cabinet but that it is “not a problem” to have the product in the bathroom.[107] That evidence is broadly in accordance with the evidence given by Mr Willis during the hearing.
[106] Ibid, P-152, lines 32 – 45.
[107] Letter prepared by Mr Willis (undated), H40.
During the hearing, Mr Willis stated:[108]
(a)It was not advisable to install a smoke alarm in a bathroom;
(b)However, the flash receiver could be used in a bathroom, and could be places in a wall mounting bracket (screwed into a wall) and plugged in or run on batteries for two days; and
(c)The flash receiver could also be mounted outside if it were mounted out of the weather or on a veranda.[109]
CONSIDERATION
[108] Transcript, P-152 lines 32 – 45; P-153 lines 1 – 42.
[109] Ibid, P-171, lines 37 – 47.
Findings of Fact
The Tribunal has considered the evidence from the various witnesses. The Tribunal noted that the Applicant gave his evidence in a matter-of-fact manner. A number of suggestions were put to him in cross-examination about ways in which he could modify his equipment or his lifestyle and habits and he responded to these directly and respectfully. I found him to be a compelling witness.
The Applicant established in his evidence that the Bellman system did not have sufficient receivers to be seen throughout his home. That is consistent with the evidence of both occupational therapists. The Tribunal is satisfied that there is insufficient space and electrical sockets to add to the existing Bellman system without adding to clutter and risk, including through unwanted shelving or brackets.[110]
[110] Ibid, P-14, lines19 – 24.
The Applicant stated that the Bellman system was not bright enough,[111] and not of any assistance to him in his home’s wet areas as he did not consider it safe to be plugged in and even if it were he could not see the plugged in Bellman whilst showering.[112] This evidence is also consistent with the evidence of the occupational therapists. Ms Davidson stated that more receivers were needed, whereas Ms Dreyer recommended the alternative Visualert system to deal with these, and other concerns.
[111] Ibid, P-8, lines 37 – 40.
[112] Ibid, P-7, lines 15 – 25 and 41 – 46.
The Tribunal accepts the evidence of the Applicant that he currently has no way of being notified of a fire if he were in the bathroom[113] unless his wife was also at home and could notify him.[114] The Tribunal notes that this could occur only if his wife were not affected by the fire herself. Ms Davidson suggested that the portable Brooks strobe should be brought into the bathroom with him, although there is no clear evidence as to where it could be placed in order to be visible to the Applicant whilst showering. The Tribunal notes that Ms Davidson also recommends a portable or plugged in Bellman receiver be brought into the bathroom to notify of the doorbell unless the Applicant were to install a ring doorbell and wear his Apple wash whilst in the shower.
[113] Ibid, P-13, lines 32 – 43.
[114] Ibid, P-14, lines 4 – 13.
The Applicant gave evidence it was not reasonable to require him to remove a device and take it to a different room to resolve his concerns,[115] and that was not practical to carry such items around with him and that doing so was not consistent with his desire for “default access” to notifications.[116] The Tribunal accepts this evidence, and notes that the Applicant’s responses along these lines, to various suggestions put to him during cross-examination, were consistent with the Applicant’s goals to improve his safety when at home and to develop strategies for managing his own health and wellbeing.
[115] Ibid, P-15, lines 7 – 11 and 29 – 31.
[116] Ibid, P-34, lines 7 – 9 and 26 – 30.
The Applicant accepted that he would benefit from vibration pads as a firm alarm notification for when he is asleep.[117] He did not have these vibrating pads linked to the recently installed Brooks fire alarm system.[118] Ms Dreyer stated that these were available with the Visualert system. Ms Davidson considered it important that the Applicant have access to vibration alerts for the fire alarm whilst sleeping.
[117] Ibid, P-23, lines 21 – 30.
[118] Ibid, P-23, lines 38 – 44.
The effect of the Applicants evidence is that he considered that the Visualert system would provide an alert system that was:
(a)One integrated technology, rather than a combination;
(b)Hardwired (to remove the need to use multiple power points, or to install further power points);
(c)Able to be mounted outside, and in wet areas;
(d)Easy to see;
(e)Mounted directly in the cornice, and not required to be placed or mounted on shelves or brackets around his small home; and
(f)Integrated, and therefore did not require him to carry devices around, or to keep them charged.
The evidence of both Ms Davidson and Ms Dreyer was consistent with their being some shortcomings in the Bellman system currently used by the Applicant.
Ms Dreyer maintained her evidence that the Visualert System met the needs of the Applicant, and the Bellman system did not, because:
(a)The notifications were unreliable and were not always seen by the Applicant;
(b)A hardwired system was preferable, so that back up batteries were not needed and plugged-in devices were not; and
(c)The system was not suitable for use in wet areas.
Ms Davidson also gave evidence that the Bellman could not be seen in all areas throughout the Applicant’s home, and that it was important that the Brooks strobe fire alarm also be seen in every room. She acknowledged the difficulties with adding power points in the Applicant’s home. Both she and Mr Willis considered that the Bellman receivers could be used in a bathroom, as long as they were not directly getting wet and this is supported by Ms Davidson’s anecdotal evidence and Mr Willis’ statement that WMT does not receive requests to replace water-damaged Bellman receivers.[119] However, neither witness was able to clearly indicate where in the bathroom the receiver could be placed so that it could be seen whilst showering, unless further work was undertaken to install a bracket or shelf.
[119] Ibid, P-169, lines 38 – 42.
It appears that there were three factors preventing Ms Davidson from giving evidence to assist the Tribunal in considering whether the Visualert system would meet the Applicant’s needs. Firstly, she stated that it was not her role to recommend products. Secondly, (and somewhat inconsistently) she was able to recommend the Bellman, and necessary additions to it, as she could base this recommendation on her own experience of using that system for many years. Finally, she did not have access to reliable information about the Visualert system, as she did not believe information found on the internet and she was directed by the respondent not to contact the distributors of Visualert for information.
These factors limit the utility of Ms Davidson’s evidence. The Tribunal does not suggest that Ms Davidson intended to avoid consideration of the relative benefits of the Visualert system when compared to the Bellman. However, she was constrained by the Respondent’s instructions to her not to contact the distributor for information. Further, Ms Davidson did not disclose that she had personal experience of the Bellman system until asked directly about it. It is relevant to note that Ms Davidson has used her own lived experience to develop her opinions as to the utility of the Bellman system, and that this evidence is of a different nature to expert evidence arising from her skills and experience as an occupational therapist. These factors are to be considered together, and do not lead the Tribunal to disregard her evidence, but they are relevant when assessing the weight of it, particularly where it may conflict with other available evidence.
The issue of Ms Dreyer’s financial interest in the Visualert system is also problematic. Had Ms Dreyer’s evidence been adduced from an independent and impartial occupational therapist familiar with all the relevant visual alert systems available in Australia, including the Visualert system, this may have provided evidence of greater assistance to the Tribunal in determining the relevant issues. The Tribunal does not suggest that Ms Dreyer has deliberately or inaccurately emphasised the benefits of the Visualert system. Put simply, Ms Dreyer is familiar with the Visualert system, and is likely to recommend it, at least in part because she was involved in its design and her husband’s business is involved in its distribution in Australia. This does not lead the Tribunal to disregard her evidence, but is relevant when assessing the weight of it, particularly where it may conflict with other available evidence.
Mr Willis presented as a helpful and co-operative witness, but his evidence was not of particular assistance to the Tribunal in determining whether the requested support was reasonable and necessary. Mr Willis’ evidence confirmed the documentary evidence that further supplements to the Bellman system were available, as was technical support, and all at a further substantial cost. However, his evidence was focussed upon endorsing the Bellman system. Had the evidence provided by Mr Willis been adduced from an independent source, such as an engineer, installer or technician who was experienced in installing and servicing both the Bellman and the Visualert systems, or other similar products, and provided an impartial helpful comparison, it may have provided greater assistance to the Tribunal in determining the relevant issues. The Tribunal does not suggest that Mr Willis has deliberately or inaccurately emphasised the benefits of the Bellman system. Put simply, Mr Willis knows the Bellman system because he sell it in Australia, and it would reflect poorly on him, and upon his employer, of 15 years, WMT (of which he is managing director) if he did not endorse this product. This does not lead the Tribunal to disregard his evidence but is a relevant factor when assessing the weight of it, particularly where it conflicts with other available evidence.
Ms Dreyer’s evidence established that key parts of the Visualert system were supported by a ten year manufacturer’s warranty and that the Bellman system was not. This evidence was not challenged. The anecdotal evidence of Ms Davidson was that she had used the central part of her system for many more than ten years. Mr Willis noted in his report that the Bellman products contain a two year warranty and that sometimes customers will continue to use their system for five to ten years.[120]
[120] Exhibit 1, T-documents, H24.
Having regard to the evidence before the Tribunal, I make the following findings:
(a)The Applicant requires a visual notification system within his home as a result of his deafness, and a system that provides sufficient visual notification of the Applicant’s doorbell and fire alarm are related to his disability.
(b)The assistive technology purchased by the Applicant with NDIS funding in late 2019 is not sufficient to provide an adequate visual notification of the Applicant’s doorbell and fire alarm. This finding is consistent with the evidence of every expert witness and with each expert report and is consistent with the Applicant’s own evidence.
(c)The Respondent submitted that the current technology would meet the Applicant’s needs with a couple of “tweaks” and some “troubleshooting”.[121] Both will incur cost. The Respondent noted that the Applicant still has some unspent funding, of about $1,000, in his approved plan that could be used for those “tweaks and troubleshooting”. However, the evidence indicates that this will not be sufficient for the purchase of six additional flash receivers (at around $300 each) and the amount $400 cost of troubleshooting issues with the location of the transmitter to address limitations on range, and the evidence indicates that the true cost may be much higher.
(d)Despite the submission to the contrary by counsel for the Respondent, it is therefore not open to the Tribunal to affirm the decision under review because the currently funded supports are not sufficient to meet the reasonable and necessary needs of the Applicant.
[121] Transcript, P-176, lines 14 – 16;P-180, line 10.
Mr Willis noted in his report that the Bellman system would provide “equivalent functionality” to the Visualert system but noted that the Bellman system does not provide a hardwired smoke alarm.[122] He stated that, if such a smoke alarm were required, this would require a combination of the Bellman and Brooks systems. Both occupational therapists recommended a hardwired smoke alarm, with a vibrating alert system for the bed. The Applicant does not have such a system with the Brooks alarm, but this is available with the Visualert system. Mr Willis concluded his consideration of this issue by stating: “In my expert opinion I do not recommend combining the Bellman Visit System and the Brooks system because operating two different platforms will require duplication of flashing lights around the home.”.[123] The Tribunal notes that these two different platforms are currently installed in the Applicant’s home and this course is not recommended by Mr Willis.
[122] Exhibit 1, T-documents, H24.
[123] Ibid.
The Tribunal has considered the evidence as to whether the Applicant’s reasonable and necessary supports ought to include, in the Applicant’s approved Statement of Participant Supports, sufficient funding for the Visualert system, as he has requested. The Tribunal has also considered the Respondent’s submission that, if the Applicant required further reasonable and necessary supports, funding should be limited to that sufficient to supplement his existing technology.
The Visualert system can be installed for about $7,900 in total[124] and parts of it carry a ten year warranty.[125]
[124] Exhibit 1, T-documents, H6.
[125] Ibid.
As to the cost for supplementing the Applicant’s existing supports, the cost range quoted by WMT for upgrading and replacing the Bellman system was between $3,597 and $5,200 (or part thereof), plus a Ring doorbell for about $299.[126] The requisite shelving, brackets, power points and installation are additional costs. There was no evidence of the precise number and cost of additional Brooks strobes recommended by Ms Davidson. A vibrating bed-shaker was also recommended by Ms Davidson. The Bellman system carries a two-year warranty although anecdotal evidence suggests it can last for five to ten years, or even longer.[127]
[126] Exhibit 1, T-documents, H24.
[127] Ibid.
Even if all these costs associated with the upgrading the Bellman system as recommended were incurred, and the Bellman system were upgraded, together with additional Brooks strobes and the Ring doorbell, the evidence is consistent with the conclusion that, in order to receive adequate visual alerts in his home, various of the suggestions put to the Applicant in cross-examination would still require implementation by him, including:
(a)Adding shelves or brackets to house additional receivers, to which the Applicant noted that the existing power points would be too low and that this would create clutter and wires hanging everywhere;[128]
(b)Adding additional power points to accommodate the additional receivers, to which the Applicant replied that did he did not like the idea of extra power points and that would not meet his goals or his preferences both as to clutter, safety and his needs;[129]
(c)Unplugging a Bellman receiver and using it on battery for short periods whilst in the laundry, or using the pager for that purpose, to which the Applicant suggested that it was not practical to carry such items around with him and that doing so was not consistent with his desire for “default access” to notifications;[130]
(d)Using the pager whilst working or spending time outside in his yard or garage, to which the Applicant responded that it did not work outside other than just near the back door;
(e)Investigating the prospect of changing the radio frequency on which the Bellman system operates, including in relation to the pager;[131]
(f)Approaching the Bellman system, when alerted by the strobe, to see which coloured light was flashing in order to determine which of the front doorbell or fire alarm was triggered;[132] and
(g)Troubleshooting with the supplier of the Bellman system for assistance with the products when needed.[133]
[128] Transcript, P-33, lines 3 – 7.
[129] Ibid, P-48, lines 27 – 46; TP-49, lines 10 – 45.
[130] Ibid, P-34, lines 7 - 9 and 26 – 30.
[131] Ibid, P-39, lines 25 – 27; P-42 lines 33 – 46; P-43, lines 1 – 3.
[132] Ibid t, P-41, lines 26 – 47; P-42, lines 1 – 3.
[133] Ibid, P-43 lines 35 – 47; P-44, line 1.
Based on the available evidence, the Tribunal is not satisfied that various proposed supplements to the Applicant’s existing assistive technology will be less, or significantly less, costly than the supply and installation of the Visualert system. Further, the Tribunal is not satisfied that such supplementation will provide equivalent functionality to the Visualert system.
Statutory Considerations
Subparagraph 34(1)(a) of NDIS Act: Will the support assist the Applicant to pursue the goals, objectives and aspirations included in his statement of goals and aspirations?
The Respondent conceded that the Applicant requires a visual notification system and the Applicant has benefitted significantly from such a support in the past. It cannot be seriously in dispute that the criteria in subparagraphs 34(1)(a) of the NDIS Act would be met for the Applicant to access the Visualert System.
The Applicant’s goals also include improvements to his safety at home and the development of strategies for managing his own health and wellbeing. The evidence demonstrates that the Bellman system, even with funded improvements, will not provide the Applicant with notification of a fire alarm or doorbell that is seamless. He would be required to disconnect and carry devices, or wear a pager in parts of his home within range, when undertaking all manner of activities including laundry and working outside. It is reasonable for the Applicant to receive funded supports that allow him what he described as “default access” to notifications without having to wear a pager or carry a device with him to various parts of his home, yard and garage and whilst undertaking activities of daily life. This is particularly important for a fire alarm essential to the Applicant’s safety. The Visualert system allows one set of lights, without the requirement to keep batteries charged, that may be installed and seen in all areas of his home, yard and garage as needed, for the fire alarm and doorbell.
I consider that the requirements of subparagraph 34(1)(a) of the NDIS Act are met.
Subparagraph 34(1)(b) of NDIS Act: Will the support assist the Applicant to undertake activities, so as to facilitate her social and economic participation?
I note that the Applicant does not presently work, but he has done so in the past and may do so in the future. I consider that the Applicant’s social and economic participation to include his capacity to receive visitors at his home, and to ensure their safety and his own whilst at home. A visual notification system that meets the Applicant’s needs will support his social, and any economic, participation.
Accordingly, I consider that the requirements of subparagraph 34(1)(b) of the NDIS Act are met.
Subparagraph 34(1)(c) of NDIS Act: does the support 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?
The Tribunal is not satisfied that comparable supports are available which would achieve the same outcome for the Applicant at a substantially lower cost. Based on the evidence, I find that the Visualert system has a warranted working life of ten years, such that the support will improve the life outcomes for, and be of long-term benefit for, the Applicant across that substantial time period.
The Applicant already has a system of visual notifications that has been funded, at least in part, through the scheme. The Tribunal is mindful that it will be in only the clearest of cases that one funded support will replace another funded support during its intended working lifetime. This case is unusual in that the Bellman system was intended to assist the Applicant with safety and independence in his home, and the Brooks system had been added, but those systems do not achieve the intended outcomes effectively. The proposed further enhancements and supplementations recommended by the experts in this case may prove just as costly as the Visualert system, particularly when considered across the comparable likely lifetimes of the two systems. I am not satisfied that it further investment, through funded supports, in the Bellman system represents value for money when compared with the relative benefits of the Visualert system for the Applicant’s particular needs. Further, I am not satisfied that the current technology is directly comparable to the Visualert system having regard to the evidence identified above as to that system’s functionality and operation.
Weighing all of the evidence, I find that the Visualert system will enable the Applicant to undertake activities of daily living within his home and the grounds of his property which are benefits that go directly to his independence and to his safety. Accordingly, I find that the support represents value for money in that the costs are reasonable, relative to both the benefits achieved and the cost of any alternative support. Accordingly, I consider that the requirements of subparagraph 34(1)(c) of the NDIS Act are met.
Subparagraph 34(1)(d) of NDIS Act: will the support be, or likely to be, effective and beneficial having regard to current good practice?
The Respondent submits that the support is not likely to be effective and beneficial and reasonable, having regard to current good practice. However, the expert occupational therapists each accepted that a hardwired system would obviate the need for further power points and clutter within the Applicant’s small home, and this appears to provide the only safe and viable solution that would enable the Applicant to see a visual notification of either kind whilst showering.
The current notification systems available to the Applicant do not provide adequate coverage inside or outside the home, in the yard, partly due to range and partly due to the brightness of the Bellman notifications and the need to combine two systems.
A visual alert system that provides safe, seamless notification is likely to be effective and beneficial as those terms are used in subparagraph 34(1)(e) of the NDIS Act. The Tribunal is satisfied that, for the Applicant’s particular needs, the appropriate support for effective and beneficial visual notification is the Visualert system. Accordingly, I find that subparagraph 34(1)(d) of the NDIS Act is met.
Subparagraph 34(1)(e) of NDIS Act: does funding the support take account of what it is reasonable to expect families, carer, informal networks and the community to pay?
The Respondent submitted that the addition of hardwired smoke alarms by the Applicant’s landlord leads to the conclusion that it is not reasonable for a further smoke alarm to be funded. The Tribunal has found that there is a need to enhance that smoke alarm with additional notification sites and that it is undesirable that the Bellman and Brooks systems combine. Therefore, whilst it is unfortunate that the landlord has recently met this cost, as the Brooks system does not meet the Applicant’s need, the Tribunal finds that funding an appropriate and effective visual alert system in the Applicant’s home is reasonable, even when regard is had to community expectations and the reasonable costs a family might be expected to pay. Accordingly, I find that subparagraph 34(1)(e) of the NDIS Act is met.
Subparagraph 34(1)(f) of NDIS Act:
There were no submissions before me to suggest or that a visual notification system was more appropriately to be funded or provided by a source other than the NDIS. I note the Respondent’s general submission that the Visualert system was not technology that should be so funded. However, the Tribunal has found that the Visualert system is an appropriate support to meet the needs of the Applicant. Accordingly, I find that subparagraph 34(1)(f) of the NDIS Act is met.
Subsection 34(2) of NDIS Act: the Rules
Part 5 of the Rules includes general criteria for supports and specifies which supports will not be funded or provided. Relevantly, rules 5.1 provide as follows:
General criteria for supports
5.1A 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
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
In McGarrigle, Mortimer J explained the role of the Rules, in reflecting ministerial policy and constraint, as follows:[134]
The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) to (7) constrain the rule-making power to preserve the federal characteristics of the NDIS The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Rules) are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.
[134] McGarrigle [2017] FCA 308 at [43].
The issues advanced at the hearing by the Respondent in relation to the Rules, have been considered in the context of the requirements of subparagraph 34(1)(c) of the NDIS Act. There may be some duplication during the process of implementing the Visualert system, but there is no suggestion in the evidence before the Tribunal of duplication of the kind contemplated in Rule 5.1 of the Rules. This is because the current funded supports are not adequate to meet the needs of the Applicant.
The Tribunal is satisfied that funding for the support is not inconsistent with the Rules. For completeness, I have also had regard to the relevant Operational Guidelines and am satisfied that there is no basis in the guidelines to refuse the funding of the Visualert system.
Other matters
For completeness, I mention subparagraph 3(3)(b) of the NDIS Act which requires regard to be had to the need to ensure the financial sustainability of the National Disability Insurance Scheme. In addition, subsection 4(17) sets out:
(17)It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:
(a)the progressive implementation of the National Disability Insurance Scheme; and
(b)the need to ensure the financial sustainability of the National Disability Insurance Scheme.
There was no evidence before me regarding the financial sustainability of the National Disability Insurance Scheme. The Respondent submitted that evidence related to duplication of a support and its value for money were relevant. The Tribunal notes that the financial sustainability of the scheme is a broader question and, if the Respondent wishes the Tribunal to consider it, evidence would be required as to the significance, if any, of including, or not including, funding for the Visualert System in the Applicant’s statement of participant supports. It follows that I am not satisfied that the financial sustainability of the scheme is affected by the support sought by the Applicant in this case.
CONCLUSION
For the reasons set out above, I am satisfied that funding of the Visualert system for the Applicant meets the requirements of a reasonable and necessary support as defined in the NDIS Act.
The Tribunal notes that the Applicant’s existing plan includes funding for core supports of up to $1,560. It is the intention of the Tribunal that sufficient additional funding be provided such that the Visualert System can be purchased and installed as a funded support. The Tribunal notes that it is a matter for the Respondent to determine the precise additional funding required, having regard to the Applicant’s existing funding for core supports and whether any such funding remains available to be allocated to the Visualert system.
DECISION
The decision under review is set aside. The matter is remitted to the Respondent with a direction that the Statement of Participant Supports is to include sufficient funding for the supply and installation of the Visualert system (in accordance with quotes dated 28 January 2020 and 17 May 2020).
I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of Member Buxton
...............[SGD]....................
Associate
Dated: 8 October 2021
Date of hearing: 7 and 8 September 2021 Advocate for the Applicant: Ms J Girvan, CODA Auslan Services by Microsoft Teams Counsel for the Respondent:
Solicitor for the Respondent:
Ms K Musgrove, HWL Ebsworth Lawyers by Microsoft Teams
Ms S Ryan, National Disability Insurance Agency by Microsoft Teams
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