Burchell and National Disability Insurance Agency
[2019] AATA 1256
•4 June 2019
Burchell and National Disability Insurance Agency [2019] AATA 1256 (4 June 2019)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2018/4659
Re:Colin Burchell
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:4 June 2019
Place:Sydney
The reviewable decision is set aside and the matter is remitted to the respondent for reconsideration with the direction that the support claimed, based upon the eating plan of 4 October 2018 is a reasonable and necessary support.
.................................[sgd].................................
Deputy President B W Rayment OAM QC
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – cerebral palsy – dysphagia – thickened fluid and food supplements – statutory interpretation – resort to extrinsic materials – services offered by other health service providers – whether support services “offered” include services not actually made available – whether NDIS can fund supports more appropriately provided but not actually offered by other health services – decision set aside and remitted
LEGISLATION
Acts Interpretation Act 2001 (Cth)
National Disability Insurance Scheme Act 2013 (Cth) ss 1, 3, 4, 25, 34, 43, 209
CASES
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27
BBMC and National Disability Insurance Agency [2018] AATA 386
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Fear by his mother Vanda Fear and National Disability Insurance Agency [2015] AATA 706
Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201
P v Child Support Registrar [2013] FCA 1312
Port of Brisbane Corporation v Deputy Commissioner of Taxation [2004] FCA 1232; (2004) 140 FCR 375
Saeed and Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Young and National Disability Insurance Agency [2014] AATA 401YPRM and National Disability Insurance Agency [2016] AATA 1023
SECONDARY MATERIALS
Convention on the Rights of Persons with Disabilities Articles 10 and 25
Revised Explanatory Memorandum to the National Disability Insurance Scheme Bill
National Disability Insurance Scheme (Supports for Participants) Rules 2013 Rules 7.4, 7.5
Operational Guidelines of the National Disability Insurance Agency Clause 10.8Productivity Commission 2011, Disability Care and Support, Report No. 54, Canberra.
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
4 June 2019
Colin Burchell was born a normal child in May 1985. At six weeks of age he was admitted to a Sydney children’s hospital for tests and contracted bronchitis while in hospital. He was transferred to the ICU ward and was given oxygen. He died or appeared to die in the ICU apparently due to mistakes made by a trainee nurse and was resuscitated. He awoke with permanent disabilities. Today he is aged 34 and his mental age is that of a one year old.
He has cerebral palsy, developmental delay, severe intellectual disability, diabetes, constipation, severe bowel impaction, haemorrhoids and rectal prolapse, and a number of other conditions. He has dysphagia as a result of his cerebral palsy, and cannot swallow properly. People with cerebral palsy have a much higher incidence of problems with eating, drinking, dysphagia, gastro-oesophageal reflux and bladder and bowel regulation. If he is not assisted to swallow by means of the kind of supports which are in issue in this review, he suffers a number of adverse consequences and risks. One risk is that he might contract pneumonia. That has happened to him in the past because of his dysphagia and he was hospitalised as a result.
His reviewing dietician, Ms Curlewis, gave evidence before me. She has being seeing him since 2006, when he was with the NSW authorities, and funded by Ageing Disability and Home Care, a division of the NSW Department of Family and Community Services.
Ms Curlewis has determined the optimum weight range for the applicant, taking into account his history since 2006. The optimum weight range is 54-58 kg. Within that range the applicant is better off in a number of ways. If he falls below it, he goes downhill fast. He becomes morose and withdrawn. She describes him as a very social person, who does not speak but vocalises. He is liable to suffer various health problems, including constipation, requiring enemas.
Last October Ms Curlewis prepared two eating plans for him. On 4 October 2018, she prepared a plan which is the one for which the applicant now seeks funding on this review. When the NDIA saw the eating plan of 4 October, the agency asked for cheaper alternatives to be proposed. Ms Curlewis prepared a second plan on that basis. The NDIA decided to fund neither the 4 October plan nor the plan prepared later in October. Before this Tribunal the agency contended as a principal submission that the support requested is health-related, and that health-related supports will not be funded under the National Disability Insurance Scheme Act 2013 (Cth) (the Act), even if the health system does not make it available. That question is an issue of importance in this review, and has required me to consider questions of law about the statute, which have not hitherto been examined in the courts, in regard to the Act.
Ms Curlewis told me that in her opinion, the support which the applicant seeks is what he needs for a number of reasons. Thickened fluids aid in safe swallowing and assist in maintaining independence and confidence in drinking safely. Thickened fluids allow him to receive his basic human need for nutrition and hydration. Without thickened fluids there is a risk of further disability or death. Thickened fluids and food supplements that are able to be swallowed safely are necessary for him to remain socially engaged and active.
Food supplements are not only nutritious but he finds them tasty and tasty food is one of the few pleasures he has.
Without thickened fluids he would not be able to drink safely. Swallowing thin fluids would be distressing and give the sensation of drowning as fluid moved into the lungs, which can also be a very painful experience. Safe swallowing enhances his confidence in eating and drinking, allowing him to maintain social interaction, independence, mobility, self-care and self-management to the extent to which he is able in his circumstances.
The applicant’s father has strained to contribute to the cost of a lesser version of the support which his son requires since the NSW funding ran out last year. The NSW authorities were paying for supports similar to those now claimed, and speaking generally, they enabled the applicant to keep within his target weight range until October last year. Since then, under the reduced regime which he has had, he has lost weight progressively. As at 19 February 2019 his weight had dropped to 52.2 kg.
He requires a high level of fluid per day, 3 litres as recommended by his Rehabilitation specialist Dr Rianto.
His father has noticed that the applicant has lost weight since last October when he commenced drinking manually thickened fluids and less expensive food supplements and he has noticed that with a weight loss, his son is less mobile than previously. He had, under the NSW regime, about one enema per year when he was receiving the support now claimed, but now has them regularly, sometimes twice a week.
He lives in a home called the House With No Steps, together with four other disabled persons. His parents call on him there when possible on Sundays for lunch and spend time playing with him. He is transported from the home for Christmas and birthdays, and spends time with his parents and brothers on those occasions. He also goes from the home to socialise with others at an institution called Greenacres, in what was described as a day placement. Ms Curlewis told me that the applicant likes to be out and about, and that when he is well, he can do that.
I also heard from two speech pathologists, Ms Fouracre, who treats the applicant at the House With No Steps, and Ms Reid (called by the respondent). Those experts gave evidence on affirmation by telephone, and also provided written reports.
Ms Fouracre stated that the applicant’s dysphagia is caused by cerebral palsy and that persons with cerebral palsy are eight times more likely than others to suffer from dysphagia. Mealtimes provide an opportunity to interact with his family, peers and the greater community. They offer the opportunity for him to participate in everyday social routines. When his dysphagia is not managed properly, that leads to screaming and behaviours such as drink and food refusal, holding his head, biting his hand. This can lead to attitudinal barriers with his support staff. Without thickened fluids there would be an impact on his enjoyment of mealtimes, an increase in his distress, frustration, and self-injurious behaviour, and potential admissions to hospital. Without thickened fluids, he risks aspiration, pneumonia, choking, and a decrease in pleasure and participation at mealtimes, as well as being at higher risk of poor nutrition and hydration. Her evidence related particularly to fluids rather than food supplements. Cross-examined by the respondent, she said that pre-packaged thickened fluids or manually thickened fluids using commercially available thickeners should work equally well, so long as the manually thickened fluids are at the correct consistency. She said that there have been problems with support staff attaining the right consistency in thickening fluids, and that prep-packaged drinks are one solution. In any event, she said pre-packaged drinks should be used if he leaves the home. Ms Fouracre also confirmed that she understood that the payment for the reduced form of the support now claimed out of the available balance of the applicant’s pension and other funds contributed by his father was occasioning financial strain.
Ms Reid emphasised in giving evidence that she had never met the applicant or been to his assisted living accommodation. She also made it clear that her special qualifications related to the swallowing function, rather than matters such as nutrition or weight. Weight considerations were outside her field of expertise.
She gave evidence as to the availability in different Australian states of subsidised access to nutrition support prior to the NDIS. Funding with or without a co-payment was available on different terms in all States. She gave evidence at a general level in the case.
The review involves a challenge to the failure to fund thickened drinks and nutritional supplements, and the respondent sought in the alternative to make a case that if any support is found to be reasonable it should be at a cheaper cost.
The review therefore involves whether the supports are reasonable and necessary, and for that purpose the CEO and therefore this Tribunal must be satisfied of each of the matters mentioned in s.34(1) of the Act, any matter relevant under the statutory rules, and must take into account the need to ensure the financial stability of the National Disability Insurance Scheme. The operational guidelines may also require consideration.
S.34(1)(a) requires the CEO to be satisfied that the support will assist the participant to pursue the goals, objectives and aspirations included in his statement of goals and aspirations. Those goals include to remain active and engaged in social circles and his community, and to ensure he has access to the equipment and environment which will enable him to be safe and happy.
That requirement is satisfied in my opinion because of the evidence to which I have referred above. He is able to remain active and to participate socially if he swallows safely, is sufficiently hydrated, and maintains his optimum weight range. He avoids the downside of weight reduction, the risk of choking and the like, pneumonia and aspiration, and going downhill fast and losing mobility if his weight drops significantly. His safety and happiness, including his enjoyment of certain foods, described as one of his few pleasures, and his enjoyment of socialising at mealtimes with family and others with whom he mixes.
I have also referred above to that which causes s.34(1)(b) to be satisfied. He is assisted to undertake activities, since he needs to be relatively well to leave the home, and his socialising is assisted by the safe enjoyment of food and drink, as both Ms Curlewis and Ms Fouracre said in their evidence.
As to s.34(1)(c), the “value for money” question throws up the need to resolve a dispute arising from the evidence in the case as to whether the cheaper form of thickened fluids and nutritional supplements should be allowed, rather than the more expensive regime proposed by Ms Curlewis in her eating plan of 4 October. Here I prefer to act mainly on the evidence of Ms Curlewis, and one circumstance apparent from the evidence. From a relatively long experience with the applicant she has determined an optimum weight for him, and when he drops five per cent or ten per cent below that weight, she had found him to go downhill fast, to lose mobility, and to become morose and withdrawn. Over a period of years, when the NSW authorities were providing for him, she found that the eating plan of 4 October enabled him to remain within that weight range. The lesser plan, for which it seems the respondent contends in the alternative to its principal contention, has been in place since October. Already by 19 February his weight fell noticeably and his father noticed a fall-off in his mobility. That tends to confirm what Ms Curlewis has said. Ms Fouracre has noticed that the thickening of drinks by carers can lead to defective thickening because of errors made. No doubt in recognition of that fact, the respondent told me that it will provide training to the carers at the House With No Steps. The supports which it is the object of the Act to provide described in s.(1)(g) of the Act are to be “high quality” supports and as s.3(ga) states, not unsafe supports. Supports at the level specified by Ms Curlewis appear to me to be of that quality and safe for this applicant. I was also told by Ms Curlewis that during the NDIA administration, there has been a high turnover of carers at the House With No Steps. In any event he needs pre-packaged food and drink if he leaves the home. The benefits achieved for the applicant in the past before the NDIS took over are clear from the evidence of Ms Curlewis. There is a cost differential, in that the cost of the plan of 4 October is some $40 per day, and the cost of manually thickened fluids and manually pureed foods is less. Such a difference in cost could not, it seems affect the financial viability of the Scheme, and no evidence has been placed before me to suggest that financial viability is threatened. Ms Reid suggested that among pre-packaged foods there were slightly cheaper alternatives to those recommended by Ms Curlewis. Rule 3.1(a) requires the CEO to consider whether an alternative and comparable support would achieve the same outcome at a substantially lower cost, and I have decided not to call for further evidence from Ms Fouracre on this matter in view of rule 3.1. In my opinion, this consideration in s.34(1)(c) should be resolved favourably to the applicant.
Thickened foods and nutritional supplements are likely to be effective and beneficial for the applicant, as they were before the NSW funding ran out. They are consistent with good practice according the both the speech pathologists and Ms Curlewis.
The funding of the support by the NDIS satisfies the requirements mentioned in s.34(1)(e), as is common ground in the case. This is not a matter for families, and the self-funding of the lesser support has been a strain.
Thus apart from s.34(1)(f) and relevant rules, next discussed, the requirements of s.34(1) are satisfied. The need for the support is patent. The circumstances mentioned in s.4(11) insofar as relevant to the applicant’s circumstances are satisfied for reasons mentioned above in [19]-[21].
Section 34(1)(f) of the Act provides as follows:
34 Reasonable and necessary supports
(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:
…
(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.
Section 34(1)(f) requires the CEO to be satisfied of two things: First that the support is most appropriately funded or provided by the NDIS; and secondly, that it is not more appropriately funded by some other system of service delivery, such as a health department. I will call those two matters the first limb and the second limb respectively. The two limbs are associated. The first limb speaks of a support which is “most appropriately” funded by the NDIS and the second limb speaks of what is “more appropriately” funded elsewhere. If the CEO is satisfied that the support is more appropriately funded elsewhere it will normally, perhaps always, be the case that he will be satisfied that the support is not most appropriately funded by the NDIS.
There is a line of authority in earlier decisions of this Tribunal which has the support of a number of members of this Tribunal to which I have been referred by the respondent, with the suggestion that I should follow those cases. The matter has not so far been examined in the Federal Court. The earlier decisions depend on construing s.34(1)(f) in the light of extrinsic material, being some remarks made by the Productivity Commission in a report of 2011. The conclusion drawn in the earlier decisions is that if the support is health related, even if the support is not funded by the health authorities, the support is not appropriately funded by the NDIS. If I followed those earlier authorities, then subject to the effect of the National Disability Insurance Scheme rules, the respondent would succeed in this case. The earlier authorities are entitled to respect, not least because of the identity of those who decided them.
The applicant has urged me not to follow those authorities, and has urged me to find for the applicant because of the provisions of rule 7.4. The applicability of that rule is also in issue between the parties. The respondent has also suggested that the provisions of rule 7.5 cover the case, which the applicant denies.
I deal with all of those submissions below. Before resort is had to extrinsic material it is orthodox to examine the text of the legislation. For example, extrinsic material may suggest ambiguity when none is otherwise present. If the meaning of the text is clear, that will ordinarily prevail, because it is the intention manifested by the legislation which will govern the matter, however clear may be a Ministerial statement at the time of the enactment of the legislation of other extrinsic material may be, favouring a different conclusion.
It is arguable that the second limb will not be satisfied unless the support is in fact provided by the health authorities or other bodies. That argument would lay stress on the word “offered” in the second limb. If the health authorities do not in fact make funding available for the support in question, then is the second limb not unsatisfied on that ground?
Further support for such a view might be provided by the consideration that s.4(3) of the Act makes it a general principle guiding actions under the Act that people with a disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime. Such certainty could not be arrived at if the person with a disability has a need, including or perhaps especially a health-related need, which was not satisfied by the health authorities, and would not be provided by the NDIS, so that it would go entirely unmet by the NDIS. That same consideration is capable of affecting judgments made by the CEO under both limbs of s.34(1)(f).
Section 3(1)(a) of the Act may also possibly assist. It makes clear that the Act has a one of its objects, “in conjunction with other laws” to give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done in New York on 13 December 2006. Those obligations include that the state parties recognise for persons with a disability rights including the right to life (Article 10) and the right to the enjoyment of the highest attainable standard of health (Article 25). On the other hand, the obligations are not only with respect to the provisions of the subject Act because of the words “In conjunction with other laws”.
The word “offered” is used in s.34(1)(f) and in s.25(3), which are each in similar terms. Neither provision has been construed judicially. It is a word of ordinary English, and in context it seems to me to mean the same as “made available”.
In order to conclude that the word “offered” included that which is what not made available, one would have to conclude that the “person, agency or body, or systems of service delivery or support services” refers not to actual providers of services but to bodies which should exist rather than those which do exist, so one would imagine not actual service providers but those which could exist which would cater for all relevant kinds of needs within their remit. I am unable so to read s.34(1)(f). It seems to me to refer in its natural meaning to actual service providers.
Nor does the use of the words “more appropriately” in the second limb seem to me to alter what I have written about the word “offered” or about its concentration on actual service providers. I would not read the word “appropriately” as requiring the CEO or this Tribunal standing in the shoes of the CEO to evaluate what supports should be provided by generic service providers, making a determination they should provide such a service even if they do not. A determination about what a State health authority should provide would raise all kinds of questions, including budgetary constraints, and while a consideration of what is most appropriately or more appropriately funded would have regard to the particular circumstances of the case; I do not take the section to require consideration of a political or budgetary consideration affecting generic service or other providers other than the NDIA or the NDIS itself.
In Mulligan v National Disability InsuranceAgency [2015] FCA 544; (2015) 233 FCR 201 Mortimer J made reference to a paragraph of the Productivity Commission Report which had been referred to in the Explanatory Memorandum. See [53] and [54]. That is not an indication that reference to the Productivity Commission’s report may be made for any purpose in construing the Act. The Explanatory Memorandum had referred to a section of the Report which it indicated was the purpose of the section in question to enact.
THE EARLIER DECISIONS OF THIS TRIBUNAL
The line of reasoning which appears in a group of earlier decisions of the Tribunal is as follows:
(a)The report of the Productivity Commission in 2011, Disability Care and Support, Report No 54. 31 July 2011 deals at several points with the intersection between health matters and the NDIS. The parts of the report which are referred to include parts of section 5.3 at pages 238-239, and the references to intersection between health and the NDIS at pages 182-184. In one of the cases, Fear by his mother Vanda Fear and National Disability Insurance Agency [2015] AATA 706 at [39]-[41] the relevant passages were set out:
(39)The NDIS implemented, in large part, the recommendations of the Productivity Commission’s 2011 report, Disability Care and Support, Report No 54, 31 July 2011. Regarding the role of “mainstream” services such as education, health care, public housing, transport and education services, the Commission said (at p 238):
It is generally accepted that disability services should not replace mainstream or other specialist services available to the broader population, or be expected to meet all the needs of people with disability. Indeed, a key policy goal is to move away from primary reliance on specialist disability services to the use of mainstream services or at least a mix of the two.
(40)Further, the Commission said:
Access to generic services, such as health and housing, can affect demand for NDIS-funded services, and vice-versa. It will be important for the [NDIS] not to respond to problems or shortfalls in mainstream services by providing its own substitute services. To do so would weaken the incentives by government to properly fund mainstream services for people with a disability, shifting the cost to another part of government (such as from a state government to the NDIS, or from one budget ’silo’ to another). This ‘pass the parcel’ approach would undermine the sustainability of the scheme and the capacity of people with a disability to access mainstream services.
(41)That said, the Commission recognised (at pp 238-239) that there were difficulties establishing “clear boundaries” between the disability service system and other mainstream service systems and that, even where boundaries were clear, they were not always consistent as between the states. It recommended that primary care and inpatient and outpatient hospital-based services, and medical and pharmaceutical products, should remain outside the scope of the scheme. Even then, it said (at p 182), it was “likely that some ambiguity will remain around the respective responsibilities of the health and disability system”, in particular “which system is responsible for meeting the support needs of individuals with a chronic health condition”. Moreover, it recognised (at p 183) that “gaps between disability and health services persist”.
(b)Reference to the material is justified because the Report was part of the basis on which agreement between the Commonwealth and the States was arrived at to set up the NDIS.
(c)By implication, that report is extrinsic material to which resort may be had in construing s.34(1)(f) of the Act. That resort is authorised by s.15AB of the Acts Interpretation Act 2001 (Cth), and common law principles of statutory interpretation, in order to establish purpose, object or mischief, or because of ambiguity, obscurity, or absurdity, or to establish context.
(d)It follows from the passages of the Report that the funds of the NDIS should not be used to fill in gaps in generic services.
(e)If the support in question is health-related, even if it is not funded or provided by a health or related authority, it will not be funded by the NDIS.
(f)That construction should be put upon s.34(1)(f). .
I regret to say that I am unable to subscribe to that line of reasoning. In the first place, High Court authority subsequent to CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 (especially at 408) the Court has stressed that the task of statutory interpretation must begin with a consideration of the text itself. See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47] per Hayne, Heydon, Crennan and Kiefel JJ, at [4] per French CJ. See also Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [33], where French CJ, Gummow, Hayne and Crennan and Kiefel JJ stated that it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory interpretation. At [31] their Honours said:
As Gummow J observed in Wik Peoples v Queensland, it is necessary to keep in mind that when it is said the legislative “intention” is to be ascertained, “what is involved is the ‘intention manifested’ by the legislation”. Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.
In the second place, I doubt whether the fact that the Productivity Commission Report was part of the basis for the agreement between the Commonwealth and the States to set up the NDIS means that there was any legislative intention to enact all relevant parts of the Report in the legislation. No reference is made to such an intention in the objects of the Act. No other indication appears in the Act of such an intention so far as I have observed. The explanatory memoranda for the 2013 bill and its 2012 predecessor refer to parts of the report, but make no reference to those parts set out in Fear.
In the third place, the remarks of the Productivity Commission do not appear to me to justify the general conclusion that the NDIS will never provide for a health-related need which the health services do not cover. The Commission made it clear, as the decision in Fear observes in [41] that there were difficulties in drawing the line between the disability service system and other mainstream service systems.
In short, for a conclusion to be reached that the NDIS will not fund a health-related support which the health authorities do not fund, even if it is otherwise a reasonable and necessary support, it seems to me that the Act or the rules should say so.
I would therefore respectfully not follow the decisions which have been based on the line of reasoning I have mentioned above, depending on the contents of the Productivity Commission report which are set out above, and which have concluded that health related expenditure not funded elsewhere will not be funded under the NDIS because of s.34(10(f). The cases begin with Young and National Disability Insurance Agency [2014] AATA 401, and Fear referred to above, and subsequent cases which have followed them.
THE NATIONAL DISABILITY INSURANCE SCHEME (SUPPORTS FOR PARTICIPANTS) RULES
These rules, so far as relevant, are made by authority of s.34(2) and of s.35(1) of the Act. They are made by legislative instrument by the Minister under s.209 of the Act and both the Commonwealth and each host jurisdiction must agree to them under s.209(4).
Rules 7.1-7.5 provide as follows:
Schedule 1 Considerations relating to whether supports are most appropriately funded through the NDIS
7.1 The Act limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems, for example as part of a universal services obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
7.2 The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system.
7.3 For the avoidance of doubt, while this Schedule sets out considerations relevant to whether a support should be considered to be more appropriately provided or funded through another service system, it does not purport to impose any obligations on another service system to fund or provide particular supports.
Note: The considerations set out in this Schedule are derived from the Principles to determine the responsibilities of the NDIS and other service systems, agreed to by the Council of Australian Governments, and dated Friday 19 April 2013. That document also includes principles relating to aged care. They are not relevant to this Schedule, but are given effect to in section 19 of the Act, and the National Disability Insurance Scheme (Becoming a Participant) Rules 2013.
Health (excluding mental health)
7.4 The NDIS will be responsible for supports related to a person’s ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment.
7.5 The NDIS will not be responsible for:
(a)the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions; or
(b)other activities that aim to improve the health status of Australians, including general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post-acute services), preventive health, care in public and private hospitals and pharmaceuticals or other universal entitlements; or
(c)funding time-limited, goal-oriented services and therapies:
(i) where the predominant purpose is treatment directly related to the person’s health status; or
(ii) provided after a recent medical or surgical event, with the aim of improving the person’s functional status, including rehabilitation or post-acute care; or
(d)palliative care.
The applicant submits that rule 7.4 covers the present case. That raises whether the supports relate to the applicant’s ongoing functional impairment and also whether they enable him to undertake activities of daily living. The words following the word “including” in the rule do not appear to apply because the supports are neither delivered nor is their delivery supervised by clinically trained or qualified health practitioners.
Each of the two critical questions is to be answered as a matter of fact. What is the applicant’s ongoing functional impairment? That is properly described as the consequences of his cerebral palsy and includes his dysphagia. The support plainly relates to the dysphagia. The support also enables him to undertake the activities of daily living, as discussed in relation to s.43(1)(b) and as discussed in the evidence of Ms Curlewis and Ms Fouracre, referred to above.
In my opinion, he satisfies the requirements of s.34(1)(f) and he falls within the provisions of rule 7.4, subject to any matter arising from the guidelines.
For completeness, he does not satisfy the requirements of rule 7.5 in my opinion. The treatment is not clinical, the support is not an activity or service, and is neither a pharmaceutical nor any other universal entitlement. It is not within s.7.5(c) or (d). Accordingly, no question appears to arise of any inconsistency between rule 7.4 and rule 7.5.
THE OPERATIONAL GUIDELINES
Clause 10.8 of the Planning Operational Guideline expresses a view about the construction of the Act, and refers to Fear. In that respect, the guideline is not policy to which it is proper for the Tribunal to have regard, since the duty of the Tribunal is to determine those matters for itself. See generally Port of Brisbane Corporation v Deputy Commissioner of Taxation [2004] FCA 1232; (2004) 140 FCR 375; P v Child Support Registrar [2013] FCA 1312 at [65]. For the rest it appears to depend on the rules, or a view taken about their construction. The respondent laid stress in its written submissions on the list of supports generally funded by other parties including at (b.) Preventative health designed to improve general health or prevent illness, injury and chronic disease. I would reject use of Appendix 1 as a reason to reject the present claim. In the first place, the word “generally” is an indication that the list may not be exhaustive. In the second place, Appendix 1 may be premised upon the remarks made in clause 10.8 depending on a view of the proper construction of the Act and rules, an interpretation which I have rejected. In the third place, in my opinion, thickened fluids or nutritional supplements are not properly described as “preventative health” in that they are foods and beverages designed to enable persons with dysphagia to swallow drinks and foods safely. I would therefore put the Guidelines aside for present purposes.
The respondent also drew attention to a 2015 publication of the Council of Australian Governments entitled “Principles to Determine the Responsibilities of the NDIS and Other Service Systems”. That document does not have statutory force and has not led to any amendment to the Act or rules. Under the heading APPLIED PRINCIPLES – HEALTH, the document states at point 2: “The above health system will remain responsible for the diagnosis. early intervention and treatment of health conditions, including ongoing or chronic health conditions. This may involve general practitioner services, medical and specialist services, dental care, nursing, allied health services, preventative health care, care in public and private hospitals, and pharmaceuticals (available through the PBS).
As a document published after the Act was in force, I do not believe that it is extrinsic material to which regard may be had in the interpretation of the Act or the rules. In any event, thickened fluids, and nutritional supplements enabling a person with dysphagia to swallow are specially prepared drinks and foods rather than “treatment” and do not appear to me to be naturally called “preventative health care”. In oral submissions, The COAG Principles are a high level, general, statement about what the health authorities are responsible for, and make no allowance for gaps in the service provided. There appears no intention in the COAG document to state how the Act and rules should be interpreted. In my opinion, the COAG principles are not of assistance in understanding the Act or the rules, and I would also reject the principles as an aid to construction for the reasons mentioned in paragraph [39] above.
DECISION
In the result, the reviewable decision will be set aside and the matter will be remitted to the respondent for reconsideration with the direction that the support claimed, based upon the eating plan of 4 October 2018, is a reasonable and necessary support
I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC
....................................[sgd]....................................
Associate
Dated: 4 June 2019
Date(s) of hearing: 22 February and 12 March 2019 Date final submissions received: 28 March 2019 Counsel for the Applicant: Mr T Liu Advocate for the Applicant: Ms J Finlay Solicitors for the Applicant: Legal Aid NSW Counsel for the Respondent: Ms R Greycar and Ms F Livingstone Clarke
Advocate for the Respondent: Ms R Patterson Solicitors for the Respondent: Wisewould Mahony Lawyers
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