Castledine and National Disability Insurance Agency
[2019] AATA 4240
•16 October 2019
Castledine and National Disability Insurance Agency [2019] AATA 4240 (16 October 2019)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2017/3459
Re:Jake Castledine
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member K. Parker
Date:16 October 2019
Place:Melbourne
The Tribunal sets aside the decision made on 27 April 2017 by a National Disability Insurance Agency reviewer to approve a statement of participant supports under the National Disability Insurance Scheme (NDIS) forming part of the Applicant’s NDIS plan that commenced on 27 April 2017.
In substitution and with effect from 27 April 2017, the Tribunal decides to approve a new statement of participant supports for the Applicant that includes the following supports:
1.143 hours of therapeutic intervention per annum to be provided by a speech therapist and/or occupational therapist in accordance with the directions of the Applicant’s clinical practice leader;
2.160.5 hours of practice coaching per annum to be provided to the Applicant’s support staff by a registered psychologist in accordance with the directions of the Applicant’s clinical practice leader;
3.110 hours of “behavioural support planning, support, monitoring and reporting” per annum to be provided by a positive behaviour support practitioner who is a registered psychologist in accordance with the directions of the Applicant’s clinical practice leader;
4.transport costs for the actual kilometres travelled by Mr Castledine by private vehicle for all journeys to and from Ms Castledine’s residence to the unit provided to Mr Castledine by the Victorian Department of Health and Human Services (DHHS Unit) or to or from the DHHS Unit to places in the community, on any day of the week, to be calculated on the basis of the rate per kilometre prescribed by the Australian Taxation Office from time to time for the purpose of calculating an individual’s tax deductions relating to travel in a private vehicle;
5.all of the supports listed in the statement of participant supports forming part of the Applicant’s current NDIS plan that commenced on 23 June 2019, to the extent that those supports have not already been provided for by the approval of the supports referred to in paragraphs 1, 2, 3 and 4 above; and
6.the review date of the statement of participant supports is extended to 22 June 2020.
..........................[sgd]..............................................
Member K. Parker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – review of statement of participant supports – participant with multiple serious and permanent medical conditions – participant has intense and complex support needs – multidisciplinary therapy – practice coaching for support staff – concerns raised about self-management of plan and direct employment of support staff - dispute about the number of hours of speech therapy, occupational therapy and practice coaching required – provision of therapy assistants as an alternative support – method of calculation of transport supports – treatment of successive NDIS plans – decision under review set aside and substituted with decision to approve a new statement of participant supports – extension of review date in statement of participant supports
Legislation
Disability Act 2006 (Vic)
National Disability Insurance Scheme Act 2013 (Cth)National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Cases
Re Ewin and National Disability Insurance Agency [2018] AATA 4726
McGarrigle v National Disability Insurance Agency [2017] FCA 308Re Williamson and National Disability Insurance Agency [2019] AATA 2944
Secondary Materials
NDIS Operational Guidelines
NDIA Practice Guide – Intensive Super Intensive Participants – Guidance for Planners, LACs and delegates (latest version approved on 13 September 2017)
NDIS Price Guide
Social, Community, Home Care and Disability Services Industry Award 2010
REASONS FOR DECISION
Member K. Parker
16 October 2019
BACKGROUND
The Applicant
Mr Jake Castledine is a man in his late twenties with a number of severe disabilities.[1] He has been diagnosed by his treating medical practitioners with the following:
(a)severe intellectual disability;
(b)attention deficit hyperactivity disorder (ADHD);
(c)autism spectrum disorder (ASD);
(d)uncontrollable epilepsy; and
(e)bipolar affective disorder (BPD).
[1] Refer to paragraph [32] of Mr Castledine’s Statement of Position lodged with the Tribunal on 14 December 2017 (Mr Castledine’s SOP).
Mr Castledine is also suspected to be suffering from Post Stress Traumatic Disorder (PTSD) arising from an incident in 2012 when he was badly beaten with a shoe by an employee from a day program that he previously attended.
Mr Castledine’s need for ongoing support is multi-faceted, extensive and complex. He has extremely limited verbal communication skills and has been described as exhibiting significant behaviours of concern.[2] He has a dedicated and caring mother, Ms Janice Castledine, who has assisted him to the extent that she is able, in light of her demanding full-time work and post-graduate study commitments. Mr Castledine also has a father (no longer partnered with Ms Castledine) and an adult brother. Ms Castledine’s evidence was that Mr Castledine’s father provides minimal day-to-day care for (or assistance to) Mr Castledine and that this situation is unlikely to change.
[2] Refer to paragraph [32] of Mr Castledine’s SOP.
Mr Castledine lives part-time in a unit in a suburb of Melbourne provided on a temporary basis by the Victorian Department of Health and Human Services (DHHS Unit) and for the remainder of the time, he lives with his mother. Ms Castledine has indicated that one of the objectives for Mr Castledine is that he makes a full transition to independent living.
Commencement as a participant of the National Disability Insurance Scheme
In September 2016 Mr Castledine became a participant of the National Disability Insurance Scheme (NDIS) established under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). He has received funding for various supports approved by the National Disability Insurance Agency (NDIA), as set out in statements of participant supports forming part of his successive NDIS plans since 2016.
With the approval of the NDIA, most of the supports under Mr Castledine’s successive NDIS plans have been self-managed by Ms Castledine, who is Mr Castledine’s nominee under the NDIS Act. Under this self-management arrangement, Ms Castledine directly employs a team of support staff who provide daily care for Mr Castledine both at the DHHS Unit and in her home. Ms Castledine also arranges for Mr Castledine to receive speech, occupational and behavioural support therapies and the services of a practice coach for his support staff.
Mr Castledine’s First Plan
On 5 October 2016, a delegate of the CEO of the NDIA (CEO) wrote to Mr Castledine and notified him that his “NDIS plan has been approved”, attaching a copy of the plan and advising the start date for this plan was 28 September 2016 (First Plan).[3] This letter records the decision of the delegate of the CEO as follows:
To make this decision, I have considered the information you supplied to the [NDIA] and the information that we discussed during our conversations. I am satisfied that the supports specified in the plan are reasonable and necessary in accordance with section 34 of the [NDIS Act].
You have requested that the funding for supports that are included in your plan be wholly self-managed. To assess your request, I am required to consider whether self-managing the funding for supports would present an unreasonable risk to you.
Taking into account the information I have available, I have decided to approve your request to self-manage the funding in your NDIS plan.
[3] The correct version of the First Plan and covering letter from the NDIA dated 5 October 2016 was tendered at the hearing and forms Exhibit “R1”. The NDIA informed the Tribunal at the hearing the version of the First Plan appearing at T-Documents T16 was incorrect and should be disregarded. The NDIA subsequently refers to having made a decision on 28 September 2016 (see NDIA letter dated 9 May 2017) and not 5 October 2016. It may be that the delegate’s decision was made orally on 28 September 2016 and confirmed in writing by the delegate’s letter on 5 October 2016. Nothing turns on this discrepancy about the date of the decision. The Tribunal will refer to this decision as having been made on 28 September 2016.
The total funding approved by the NDIA for supports under the First Plan was $382,545 over a 12-month period. This funding was approved in the following support areas:[4]
[4] Refer to Exhibit “R1”.
(a)assistive technology, $1,600;
(b)improved daily living, $54,469.18 for:
training and support for staff 10 hours week (practice coach)
individual assessment, therapy and/or training staff 12 hours a month
(c)increased social and community participation, $2,000;
(d)support coordination, $37,220.84;
(e)transport, $2,472 expressed as a contribution towards any transport-related costs; and
(f)core supports, $284,782.98 described as follows:
Funding for your continence products including delivery.
assistance with self-care – overnight – higher intensity 168 hrs per year, to maintain informal support
assistance with self-care activities during daytime weekdays – higher intensity 20 hrs per week
assistance with self-care activities – high intensity composite 504 hrs per year, to maintain informal support
ass to access community, social/rec acts – indiv higher intensity –Sundays 3 hrs a week
ass to access community, social/rec acts – high Intensity composite 35 hrs a week
ass to access community, social/rec acts – standard composite 35hrs a week.
On 19 December 2016, Ms Castledine, as nominee for Mr Castledine, signed an NDIA form entitled, “Requesting a Plan Review form”. The completed form indicates that Mr Castledine’s support coordinator at the time assisted with its completion.
At the top of this form, it states:
You may request a review of your NDIS participant plan at any time. If you wish to request a review of your plan, you must complete this form and return it to: NDIA [postal address].
The Agency will decide whether or not to conduct a review within 14 days of receiving your request and notify you of the decision in writing.
Ms Castledine (assisted by the support coordinator) stated as follows on the second page of this form under the heading, “Please explain what has changed in your life that affects your plan”:
Areas that require an immediate review of Jake’s NDIA plan
Jake’s plan is insufficient to meet his required needs to ensure a suitable and sustainable support structure.
Short Term Accommodation
There is no allowance for short term accommodation in Jake’s current NDIS Plan. Jake has been receiving monthly respite through St John of God since age 10. Without the provision of appropriate short term accommodation options Jake’s current living arrangements will not be sustainable.
Daily Living
The current daily living is incorrectly funded at the individual therapy rate due to the multiple therapies involved in Jake’s care. This needs to be reviewed and funded as a Multidisciplinary Team to support the appropriate interventions and management.
Dietician
Planning meeting conducted … is missing a number of significant items including funding for a Dietician to manage Jake’s anorexia…
Overnight in-home care for 2 nights per week to support Janice Castledine maintain her own health and wellbeing.
Operational Requirements of his program
The significant underfunding of the operational requirements of the individualised day program…
Transport
[Funding for a vehicle for safe transportation to and from the day program and community access]
Recruitment campaign
[single occurrence][paid professional recruitment to build a team of qualified and dedicated staff that will support the pursuit of Jake’s goals].
The Tribunal considers that the appropriate characterisation of the submission to the NDIA by Ms Castledine of this completed form is that it constituted a request by her for the CEO to conduct a review of Mr Castledine’s plan under s 48 of the NDIS Act. Specifically, s 48 provides as follows:
(1) A participant may request that the CEO conduct a review of the participant’s plan at any time.
Section 48(2) of the NDIS Act provides that the CEO must conduct the review within 14 days of receiving such a request. This did not occur in Mr Castledine’s case. Consequently, by operation of s 48(2) of the NDIS Act, the CEO is taken to have decided not to conduct a review of Mr Castledine’s plan.
Section 99(f) of the NDIS Act specifies that a decision under s 48(2) not to review a participant’s plan is a “reviewable decision”.
Section 100(5)(a) of the NDIS Act provides that if the CEO is taken to have made a reviewable decision because of s 48(2), the CEO must cause the reviewable decision to be reviewed by a person (a “reviewer”) who was not involved in making the reviewable decision and who has received an appropriate delegation to exercise the CEO’s powers under s 100.
In Ms Castledine’s case, a delegate of the NDIA proceeded to undertake an internal review of the deemed decision by the CEO not to review Mr Castledine’s plan. This review was undertaken under s 100(5)(a) of the NDIS Act by a “reviewer” as defined in that provision. Specifically, an “internal review meeting” took place on 14 February 2017. This meeting resulted in the following decision being made by the reviewer.
Internal review decision
On 27 April 2017 the reviewer made a decision that was recorded in a letter dated 9 May 2017.[5] The Tribunal notes that in the first paragraph of this letter the reviewer appears to have mischaracterised the request that was made by Ms Castledine. The reviewer stated that Ms Castledine (and Mr Castledine) had requested a review of the NDIA’s decision on 28 September 2016. This is incorrect. While the end result is closely linked, the proper characterisation of the request that had been made by Ms Castledine was for a review to be undertaken of Mr Castledine’s plan under s 48 of the NDIA Act, as addressed above in paragraphs [12] to [16].
[5] Refer to T-Documents T2.
Despite that initial mischaracterisation, the reviewer then referred (in her letter dated 9 May 2017), to the provisions under s 48 and acknowledged that the CEO was taken to have decided not to review Mr Castledine’s plan, which lead to the internal review meeting on 14 February 2017. The reviewer stated in her letter dated 9 May 2017 as follows:[6]
Following an internal review meeting at [address] on the 14th February 2017 where Jake’s support coordinator was present, I have made an internal review decision on the 27th April 2017 resulting in the current 6 month plan being approved on that date.
[6] Ibid at page 12.
The reviewer described the “outcome” of her decision as:[7]
(a)having “changed decisions made in the previous plan related to the areas” which included an “increase” to “consumables funding”, “support for capacity building – daily activities” and “supports for capacity building – relationships” (as detailed in paragraph [20]);
(b)deciding “not to change the following decisions made on the previous plan” in relation to “short term accommodation and in-home respite”; capacity building supports – the requests for an intensive multidisciplinary team and a dietitian; and the provision of a “vehicle” and ongoing maintenance costs; and
(c)determining that “no decision about additional funding for program management and administration (such as business operating costs) was required” (on the basis that those costs were already included in the plan as they formed part of the pricing unit costs.
[7] Ibid at pages 12 and 13.
In relation to paragraph [19(a)], the reviewer described the changes she had decided to make as follows:[8]
(a)increasing the level of funding for a continence package from $1,200 per 12 months to $4,720 per six months;
(b)increasing support for capacity building (daily activities), inclusive of:
(i)a “therapy line item for a practice coach (previously charged at the therapy assistant rate)”; and
(ii)four hours for a continence nurse to undertake an assessment;
(c)increasing support for capacity building (relationships), inclusive of “specialist behavioural intervention and behavioural management training (stated support/agency managed) to address behaviours of concerns and to develop and implement a behaviour support plan (BSP)”.
[8] Ibid at page 12.
Under the heading “Rationale for Decisions”, the reviewer then undertook an analysis of whether certain supports were reasonable and necessary applying the criteria specified in s 34 of the NDIS Act.[9]
[9] Ibid at pages 13 to 15.
Although the reviewer did not expressly say so, it is implicit that she had set aside the decision the CEO was taken to have made by operation of s 48(2) being “a decision not to review” Mr Castledine’s plan and substituted it with a decision to review the plan. The reviewer proceeded to undertake the review of Mr Castledine’s plan and made the decision referred to in paragraphs [18] to [20].
Section 49 of the NDIS Act provides as follows:
If the CEO conducts a review of a participant’s plan under section 48, the CEO must facilitate the preparation of a new plan with the participant in accordance with Division 2.
Note 1: If the participant does not wish to change the participant’s statement of goals and aspirations, the statement remains unchanged and forms part of the new plan.
Note 2: Because the new plan is prepared in accordance with the Division 2, a decision to approve the statement of participant supports in the plan would be made under subsection 33(2) and be reviewable under paragraph 99(d).
By making the decision as referred to in paragraphs [18] to [20], in effect, the reviewer approved a new statement of participant supports for Mr Castledine (Decision Under Review).
Mr Castledine’s Second Plan
In accordance with s 49 of the NDIS Act, the NDIA facilitated the preparation of a new (six-month) plan for Mr Castledine with a commencement date of 27 April 2017, incorporating the new statement of participant supports approved by the reviewer referred to in paragraph [24] (Second Plan).[10]
[10] Refer to T-Documents T15.
The statement of participant supports forming part of the Second Plan approved funding for the following relevant supports for Mr Castledine (totalling $267,436.81 over a six-month period):
(a)Assistive technology: $800 for a seizure mat and alarm;
(b)Improved daily living: $64,500.87, which included (among other things):
(iii)12 hours per month of “therapist support”; and
(iv)10 hours per week of “Practice Coach support”;
(c)Improved relationships support funding of $11,305.50 including the “Stated Support” of 45 hours of “specialist behavioural intervention supports” and 15 hours of “behaviour management planning/training in behaviour management strategies”;
(d)Increased social and community participation: $1,000;
(e)Support coordination funding of $37,220.84;
(f)Transport funding of $1,236.00; and
(g)Core supports of $151,373.60, described as including:
Flexible core support to enable maximum independence in personal activities of daily living are included within this category. These supports can be provided in a range of environments, including but not limited to, the participant’s own home and short term accommodation service.
In addition, supports to explore and participate in community based activities (including day program) and supports to access community and civic participation.
History of application for review before this Tribunal
On 8 June 2017, Ms Castledine lodged an application on behalf of Mr Castledine seeking review by this Tribunal of the Decision Under Review (being the decision of the reviewer to approve the new statement of participant supports which formed part of Mr Castledine’s Second Plan).
As is not uncommon in applications made in this Division of the Tribunal, the position of both parties altered significantly, before, during and after the hearing of this application as to which supports were in dispute, and to what extent.
On 14 July 2017 the NDIA lodged a set of documents pursuant to its obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T-Documents).
This application was initially listed to be heard over three days from 18 to 20 December 2017 inclusive.
On 8 December 2017, i.e. 10 days before the hearing was due to commence, the NDIA lodged with the Tribunal and served on Mr Castledine’s representatives a Statement of Position (NDIA’s SOP). Subsequently, on 13 December 2017, the NDIA lodged a further set of documents pursuant to its obligations under s 38 of the AAT Act (ST-Documents). On 14 December 2017, i.e. four days before the hearing was due to commence, Mr Castledine’s representatives lodged with the Tribunal and served on the NDIA:
(a)Mr Castledine’s Statement of Position (Mr Castledine’s SOP);
(b)documentary evidence comprising 19 annexures to the SOP, the first of which was a key document upon which Mr Castledine sought to be rely, being a 97-page Behavioural Assessment Report (BAR) dated 20 November 2017 prepared by Ms Killmier and two other consultants from Guidestar; and
(c)two witness statements upon which Mr Castledine sought to rely.
Mr Castledine’s SOP identified the following as “live issues” in the review:[11]
(a) Whether the Plan should include multidisciplinary integrated positive behaviour supports of 472 hours in the order of
-63 hours of Occupational Therapy (incorporates direct therapy, staff training through attendance at quarterly staff meetings and quarterly multidisciplinary team meetings and progress report)
-99 hours of speech therapy (incorporates direct therapy, staff training through attendance at quarterly staff meetings and quarterly multidisciplinary team meetings and progress report)
-110 hours of Behavioural Support Intervention (development and implementation of a final behaviour support plan, staff training, attendance at multidisciplinary team meetings and progress report) – not in dispute
-200 hours of practice coaching
(b) Transport Assistance of $19,500
[11] Refer to paragraph [6] of Mr Castledine’s SOP.
At the commencement of the hearing, counsel for the NDIA confirmed that there were four issues in dispute between the parties, being whether the following additional supports should be provided to Mr Castledine under the NDIS, namely:[12]
(a)63 hours of occupational therapy;
(b)99 hours of speech therapy;
(c)200 hours of practice coaching; and
(d)transport assistance (requested in the form of payment as an annual allowance of $19,500).
[12] Refer to Transcript 18 December 2017 at P-8, lines 25-37.
The hearing was unable to be concluded over the three allocated hearing days in December 2017. This was partly because it was identified at the commencement of the hearing that it was appropriate that two of Mr Castledine’s current therapists should be called to give evidence about the expert reports authored by them, and upon which Mr Castledine sought to rely in support of his application.[13] The Tribunal was informed by Mr Castledine’s representatives at the hearing that one of those therapists was overseas at the time of the hearing. The hearing was adjourned and resumed on a fourth and final day on 21 February 2018, so that arrangements could be made for those two therapists to give evidence.
[13] Refer to Transcript 18 December 2017 at P-9 to P-11.
The following witnesses were called by Mr Castledine’s representatives to give evidence at the hearing (in chronological order):
(a)Ms Susan Fowler, previous occupational therapist;
(b)Ms Victoria Zainal, previous speech therapist;
(c)Ms Helen Killmier, current supervising psychologist and CEO of Guidestar Life Pty Ltd (Guidestar);
(d)Ms Heather Lambert, current disability support worker/team leader;
(e)Ms Janice Castledine;
(f)Ms Hannah Cohen, current occupational therapist; and
(g)Ms Julie Greiner, current speech therapist.
The NDIA called Ms Meg Parsons, Branch Manager, National Technical Advisory & Complaints Branch, NDIA, as a witness to give evidence at the hearing.
Mr Castledine’s Third Plan
A further (12-month) NDIS plan for Mr Castledine commenced operation on 18 December 2017 (Third Plan) and replaced the Second Plan.[14]
[14] Refer to email from the NDIS to the Tribunal and Ms Castledine’s representatives dated 21 December 2017 attaching covering letter by the NDIA to Mr Castledine dated 18 December 2017 and copy of the Third Plan.
In the Third Plan total supports in the sum of $657,457.97 over a 12–month period were approved for Mr Castledine, including:
(a)$565,000 in the support area of “core supports” (including for “daily activities” described as “flexible supports to enable maximum independence in personal activities of daily living. The supports can be provided in a range of environments, including but not limited to, the participant’s own home”);
(b)$27,000 in the support area of “improved daily living” for “allied health supports” to “explore a number of changes in Jake’s transition to independent living”; and
(c)$35,000 in the support area of “improved relationships” for the provision of services by a specialist psychologist.
Counsel for the NDIA clarified at the hearing that the funding provided under paragraphs [38(b)] and [38(c)] amounted to $62,000, which she said reflected the NDIA’s proposal in Annexure A.
Further opinion sought from Guidestar
On the last day of the hearing on 21 February 2018, Ms Parsons gave evidence about her view (and by extension, the NDIA’s view), about the role of a positive behaviour support (PBS) practitioner in the present setting concerning Mr Castledine’s supports. Ms Parsons said:[15]
So the positive behaviour support practitioner…comes in, they know the complexity of the participant through an assessment tool that we’re trialling at the moment as well and they get a budget of supports and then they will be the ones that are designing the positive behaviour support and the utilisation of those supports, whether it be by therapists, training for staff, monitoring, planning and review and then if they find that part of the way through that planning – like, the plan and the implementation of the plan, for whatever reason, is not enough supports, they come back, plan review, we adjust it according to the evidence.
[15] Refer to Transcript 21 February 2018 at P-137.
The Tribunal also notes Ms Parsons’ further evidence at the hearing:[16]
What Guidestar needed to do, they were giving a comment on practice coaching in isolation – not in an integrated package of support where they are clear about what their role is and isn’t and I think that is again one of the complexities that we’ve got here. Everyone is putting their quotes and comments in, in isolation. In an integrated model of support we would know exactly what Guidestar’s function is. We would also know whether the positive behaviour support practitioner – and I know everyone is reporting benefit of the practice coaching, that’s really good, but again, that needs to be linked to the positive behaviour support practitioner and their goals and what the outcomes are – not in isolation.
[16] Ibid at P-139.
In consideration of this evidence, the Tribunal directed the parties, jointly, to write to Ms Killmier, in her proposed role as the clinical practice leader of the multidisciplinary (MDT) therapeutic supports to be provided to Mr Castledine, seeking “her recommendation as to the total number of hours of therapeutic intervention (including a breakdown of her calculations) that she considers is reasonable and necessary for Mr Castledine over the next 12 months”.[17] The directions provided liberty to either party to request that Ms Killmier be recalled as a witness once her recommendations were received. Directions were made for the lodgement of closing submissions in the event that no such application was made.[18]
[17] Refer to Tribunal’s Direction made on 22 February 2018.
[18] After the hearing, on 26 February 2018 Mr Castledine’s representatives also lodged with the Tribunal travel log book records showing details of travel undertaken on various dates in 2017.
Ms Killmier provided her response to this request by an email sent to the parties on 9 March 2018 as follows:
…
I have sought advice through the Australian Psychological Society’s legal hotline regarding this request.
I have two issues to raise regarding the matter:
1. I am not a qualified Occupational Therapist or Speech Pathologist and therefore do not believe that I am qualified to offer any opinion regarding the number of hours of intervention required, other than to endorse the recommendations already made by these professionals.
2. I believe that I face an ethical dilemma in providing an opinion or recommendation that is likely to be irrelevant given that Mr Castledine’s circumstances have changed due to hospitalisation as a result of a medical condition.
Please advise whether my written opinion is still required in light of the concerns raised above.
Ms Killmier’s reference to Mr Castledine’s change in circumstances prompted those matters being bought to the attention of the Tribunal
The Tribunal recalls that toward the end of the final day of the hearing on 21 February 2018, Mr Castledine’s representative informed the Tribunal as follows:[19]
Just as very brief context, unfortunately Jake had an epileptic – suspected epileptic stroke overnight and he is in hospital waiting for marrow to be taken and Janice hasn’t slept overnight and she’s quite affected. Struggling to engage with us and - - -
MEMBER: Have you been to the hospital a bit earlier today?
MS CASTLEDINE: I haven’t had any sleep. We’ve been awake since 6 o’clock yesterday.
MEMBER: I’m sorry to hear that.
[19] Refer to Transcript 21 February 2018 at P-117.
Ms Killmier’s “9 March 2018” letter referred to a change in respect of Mr Castledine’s circumstances (see paragraph [43] of these Reasons for Decision), and specifically, that he had been hospitalised. Upon receipt of Ms Killmier’s letter, the NDIA wrote to the Tribunal on 19 March 2019 indicating that the NDIA had received an update from Mr Castledine’s legal representatives regarding Mr Castledine’s condition and hospitalisation. The NDIA stated that it expected Mr Castledine’s change in circumstances to impact on the supports that he would require in the immediate future and going forward, in particular, over the following six months.
The NDIA contended that it was necessary for the Tribunal to be made aware of the extent of the change in Mr Castledine’s circumstances on the basis that it may be necessary for the Tribunal to determine the “utility of continuing with proceedings”. The NDIA proposed that directions be made by the Tribunal requiring Mr Castledine’s representatives to provide an update and to allow the NDIA to respond. The NDIA contended that that it was appropriate that the existing directions requiring the parties to lodge closing submissions be held in abeyance until the Tribunal decided how the matter was to proceed.
Prompted by the NDIA’s correspondence referred to in paragraph [45], on 20 March 2018 Mr Castledine’s representatives wrote to the Tribunal to confirm that:
(a)their understanding was that Mr Castledine had suffered a stroke on or around the last day of the hearing, attributable to an arteriovenous malformation stated to be inoperable;
(b)it was not initially clear whether Mr Castledine would survive although he did - however, there was still a question of how much function he could regain;
(c)Mr Castledine remained in a medical setting;
(d)there was no anticipated date of discharge from “hospital/rehabilitation” and no clear indication of “what Jake’s level of function will look like at that time”;
(e)Mr Castledine’s exact nature and extent of future disability needs were unknown and were not likely to be known for “several weeks, or indeed months”; and
(f)once Mr Castledine’s condition was stabilised, he was likely to make an application for review of his current NDIS plan on the basis of the change of circumstances.
Despite those matters, Mr Castledine’s representative pressed for the lodgement of closing submissions in the substantive application and suggested that this Tribunal could proceed on the basis of the evidence of the facts as known as at conclusion of the hearing. Mr Castledine’s representatives undertook to provide a further update to the Tribunal “as soon as we know more”.
Application held in abeyance while Mr Castledine recovered from a stroke
On 23 March 2018, the Tribunal informed the parties that it considered that the change in Mr Castledine’s circumstances had great significance to the findings it needed to make. There was uncertainty about the level of Mr Castledine’s functionality, which had been significantly impaired by these events. Consequently, the Tribunal vacated the directions for lodgement of closing submissions and the application was listed for a Telephone Directions Hearing on 17 September 2018. The Tribunal indicated that a resumed hearing would take place once Mr Castledine’s condition had stabilised. Liberty was given to the parties to request an earlier directions hearing, if Mr Castledine’s condition became stable before 17 September 2018. The Tribunal identified the further evidence and submissions it would require from the parties before any resumed hearing in this matter could proceed.
No request was made by either party for the Telephone Directions Hearing to take place prior to 17 September 2018 and it proceeded on this day.
Further directions hearing on 17 September 2018 to ascertain Mr Castledine’s status
Three days before the Telephone Directions Hearing on 17 September 2018, Mr Castledine’s representatives sent a joint report prepared by his current occupational and speech therapists (Ms Cohen and Ms Greiner) to the Tribunal (Ms Cohen’s and Ms Greiner’s Joint Report). This report was issued three months earlier and provided an update in relation to Mr Castledine’s condition and post-stroke functionality as at 12 June 2018, as follows:
Jake is independent and mobile with nil aids.
He is safe and independent with all transfers.
Jake’s right hand is more curled in its relaxed grasp position and he requires support to open his hand and practice full range of motion.
It has been reported that Jake is more fatigued.
Jake has experienced a number of seizures since returning to his usual day program – this usually occurs if he is over exerted.
Seizure length has been longer than usual – Janice following up with neurologist.
Communication skills have returned to pre-stroke capacity.
Jake’s support team were not able to remain available for shifts during the unknow[n] periods without work. This has meant that there has been a significant change in Jake’s support team. This has also meant that more of a focus in therapy sessions has been aimed at training new support workers, and educating the team about changes in Jake’s circumstances. This includes – changes in functional abilities, communication style, endurance, fatigue, consistency in rapport.
The Tribunal was informed by Mr Castledine’s representatives at this Telephone Directions Hearing that Mr Castledine’s condition had stabilised and his disability support needs were substantially the same as they were before he had suffered the stroke. This was confirmed by Mr Castledine’s current therapists in Ms Cohen’s and Ms Greiner’s Joint Report stating that:[20]
Jake’s current presentation is similar to his pre-stroke level [o]f function; however if he is experiencing higher levels of fatigue as a result of reduced endurance caused by his stroke; this can impact on a broad range of his day to day activities. This also impacts on the level of support Jake requires on each day. Jake’s capacity and support needs can fluctuate day to day.
However, in general; Jake has been able to participate in most activities that he was doing pre-stroke, with increased monitoring for signs of fatigue and tailored participation…
[20] Refer to page 2 of Ms Cohen’s and Ms Greiner’s Joint Report.
Consequently, and by consent, further directions were made for the lodgement of written closing submissions by both parties in relation to the substantive application. Liberty to apply was provided in the event that Mr Castledine’s circumstances changed again before the publication of the Tribunal’s decision.
Mr Castledine’s closing submissions were lodged on 25 October 2018 (Mr Castledine’s Closing Submissions). The NDIA lodged its closing submissions on 19 November 2018 (NDIA’s Closing Submissions). Mr Castledine’s reply to the NDIA’s Closing Submissions was lodged on 23 November 2018 (Mr Castledine’s Reply).
Mr Castledine’s Fourth and Fifth Plans
At the request of the Tribunal, on 6 August 2019 the NDIA provided Mr Castledine’s more recent NDIS plans containing subsequent statements of participant supports approved by the CEO (or his or her delegate) on 24 December 2018 and 23 June 2019 (Fourth Plan and Fifth Plan respectively).
The Tribunal notes that the approved statement of participant supports forming part of the Fourth Plan approved total funding of $696,748.81 for Mr Castledine’s supports over a 12-month period commencing on 19 December 2018, comprising:
(a)Total Core Supports funding of $1,397.08 for “transport” and $640,237.97 for self-managed “core supports”;
(b)Capacity Building Supports funding of $54,513.76 comprising:
(i)$14,084.96 Improved Daily Living described as:
Allied health supports are to explore a number of changes in Jake’s transition into independent living. Jake will require a multidisciplinary approach that is guided by specialist psychology. Allied health intervention is to be goal oriented and will aim to enhance emotional self-regulation, reduced physical aggression and promote positive community connections and development to mainstream supports. Allied health is to also explore the new environmental needs at Willis Street. Allied health is to progress towards Jake’s goal of independent living. A comprehensive transition plan is to be developed.
(ii)$18,500.00 for Improved Relationships described as:
Specialist Psychology to guide and develop the care support team and allied health professionals. Specialist psychology to ensure governance of the supports and are personalised to Jake, ensure sufficient staff knowledge and ongoing development in support strategies, facilitate accurate behavioural data tracking. Further ecological and environmental assessments will be required with the transition to independent living for Jake. Specialised psychology support services are to work closely with the chosen specialist support coordinator to ensure effective development and implementation of new plan, and the recommendations made in the Guidestar [BAR]. All reports and data is to be collated and sent to the NDIS prior to the next review.
(iii)$21,928.80 (NDIA-managed) for specialist Support Coordination;
(c)$600 for Assistive Technology.
The Tribunal notes that the approved statement of participant supports forming part of the Fifth Plan (currently in force) approved total funding for Mr Castledine’s supports over a 12-month period commencing on 23 June 2019 in the sum of $1,174,523.67, comprising:
(a)Total Core Supports funding of $1,078,722.15 comprising $2,676.00 for “Transport” and $1,076,046.15 for “Core Supports” (self-managed) including:
(i)Consumables;
(ii)Daily Activities. 2:1 support for 24 hours per day, 7 days per week, with the specified purpose of aiding Mr Castledine’s transition to the DHHS Unit and future Special Disability Accommodation once sourced. The plan states that this support has been provided on the basis that the level of 2:1 support provided was for “this plan period only” and would reduce in the next plan;
(iii)Social Community and Civic participation;
(b)Capacity Building Supports funding of $95,201.52 comprising:
(i)$33,104.64 funding for Improved Daily Living (self-managed), which includes allied health supports adopting a “multidisciplinary approach that is guided by specialist psychology”. The plan states that a comprehensive transition plan is to be developed and a “micro-board” established to assist in decision-making processes. This funding is described as “once-off funding” that will “facilitate a process that will run voluntarily without the need for further funding beyond Specialist support coordination in future plans”;
(ii)$28,838.20 funding for Improved Relationship (self-managed) described as a “Level 2 Behaviour Intervention Support Package to include 80 hours of specialist behaviour intervention support, 70 hours of behaviour management plan, in training in behaviour management strategies”;
(iii)$33,258.68 for Support Coordination (self-managed)(specified as a Stated Support meaning that it cannot be swapped for any other support(s)), described as:
Specialist support coordination is to address barriers and reduce the complexities of the participant environment. Connect Jake with multiple complex supports needs including but not limited to a multidisciplinary allied health team, practice coaching and diversional therapy. Specialist support coordination to also build capacity of informal supports to coordinate and self-implement plan.
(c)NDIA-managed Capital Supports funding comprising $600 for Assistive Technology and further unspecified funding (because a quote is required) for the Stated Support of specialist disability accommodation that aims to support Mr Castledine’s needs.
Supports requested by Mr Castledine
In Mr Castledine’s Closing Submissions, which the Tribunal notes were lodged prior to commencement of the Fourth and Fifth Plans, he requested the following supports:
(a)63 hours of occupational therapy (based on the recommendation made by Ms Cohen) which would include fortnightly sessions with Mr Castledine and his support staff (comprising one-hour face-to-face sessions and 30 minute fortnightly video reflections, attendance at quarterly support team meetings and training and attendance at the quarterly MDT meetings);[21]
(b)80 hours of speech therapy (based on the recommendations made by Ms Greiner which would include weekly 1.5-hour sessions with Mr Castledine and his support staff, attendance at quarterly support team meetings and training and attendance at the quarterly MDT meetings);[22]
(c)the “cost of travel associated with above therapies”;
(d)179 hours of practice coaching (comprising 152 hours for “day staff” and 27 hours for “weekend staff”);[23] and
(e)“transport funded to the value of $10,829”.[24]
[21] Refer to paragraph [6] of Mr Castledine’s Closing Submissions.
[22] Refer to paragraph [7] of Mr Castledine’s Closing Submissions.
[23] Refer to paragraph [44] of Mr Castledine’s Closing Submissions.
[24] Refer to paragraph [5] of Mr Castledine’s Closing Submissions.
The NDIA confirmed, in its closing submissions (also pre-dating the Fourth and Fifth Plans), that its “reassessment”, having considered all of the material before the Tribunal, as to how best meet Mr Castledine’s needs remained the same as set out in “Annexure A to the Statement of Meg Parsons” (Annexure A).[25]
[25] Refer to paragraph [5] of the NDIA’s Closing Submissions. This appears to be a reference to Annexure A of the NDIA’s SOP which was prepared by Ms Parsons.
In Annexure A, the NDIA proposed that the following supports be provided to Mr Castledine (requiring total funding of $61,711.40) comprising:
(a)$17,557 (100 hours x $175.57) for “therapy/assessments” for speech, occupational and sensory therapy, to be used flexibly as determined by Mr Castledine’s needs and progress;
(b)$4,171 (100 hours x $41.71) for “therapy assistant” to support the implementation of the therapeutic interventions, to develop aids and for supporting or training staff;
(c)$21,085.40 (comprising $5,369.40 (30 hours x $178.98) plus $7,858.00 (40 hours x $196.45) plus $7,858.00 (40 hours x $196.45)) for BSP support, monitoring and reporting to include development of comprehensive BSP and analysis, review and implementation of BSP and reporting of outcomes against goals;
(d)$4,295.52 (24 hours x $178.98) for staff and carer training “over and above employer responsibility” for “training in BSP and strategies”;
(e)$13,602.48 (76 hours x $178.98) for “practice coach/support team coordination (group therapy)” to support staff and carers at meetings (group supervision) and “maintenance of staff team over and above typical employer obligations”;
(f)$1,000 - transport for therapy.
At the hearing, counsel for the NDIA clarified that the above supports of $61,711.40 were proposed to be provided to Mr Castledine in place of (and not “in addition to”, as had been stated in the NDIA’s SOP), the $54,000[26] which had been approved under the heading “improved daily living” support area of the statement of participant supports for Mr Castledine which was the subject of this review (i.e. forming part of the Second Plan).[27]
[26] It seems the reference to $54,000 was intended to be a reference to $54,469.18 as appearing in the plan. Nothing turns on this minor discrepancy.
[27] Refer to Transcript 20 December 2017 at P-286.
The NDIA contended that the “correct and preferable statement of participant supports should approve the following”:[28]
[28] Refer to paragraph [47] of the NDIA’s Closing Submissions.
(a)the funding outlined in Annexure A (Integrated PBS) inclusive of transport costs (up to 20 minutes per trip), including:
(i)100 hours for multidisciplinary team interventions;
(ii)100 hours for therapy assistants;
(iii)110 hours for behavioural support planning;
(iv)76 hours for practice coaching; and
(v)24 hours for staff and carer training;
(b)Participant transport costs to the value of $9,441.12.
The NDIA stated that it appeared there was agreement between the parties that the most appropriate way to deliver supports to Mr Castledine was through greater collaboration between, and coordination of, his various therapists and support workers. The NDIA contended that there had been past inconsistencies “between therapists” and “between weekdays and weekends”, presenting a risk of creating anxiety and distress for Mr Castledine; and that instead, “a consistent, simplified approach to the provision of therapies and supports is desirable” in order to maximise the benefits to Mr Castledine and to minimise his “behaviours of concern”.[29]
[29] Refer to paragraph [6] of the NDIA’s Closing Submissions.
The NDIA also confirmed there was agreement that Guidestar, a disability service provider, should take a leading role in the provision of Mr Castledine’s supports by setting goals and amounts of therapeutic interventions, training and practice coaching from the budget in the plan, after consultation with Mr Castledine, his therapists, support workers and family. The NDIA contended that this centralised approach would reduce unnecessary repetition and achieve the greatest value for money. This aligned with Ms Castledine’s view as to how the supports should be coordinated and provided to her son.
The NDIA contended that the issue in this application was confined to the amount of funding that should be approved to facilitate Mr Castledine’s plan. At the hearing, the NDIA did not dispute Mr Castledine’s need to receive occupational therapy and speech therapy but rather, it took issue with how many hours were required.[30] Likewise, in relation to the provision of practice coaching, the parties were unable to agree as to the total number of practice coaching hours required by Mr Castledine; and the NDIA expressed its “overarching concern on our part about how those therapists will be working with one another and with the other number of people that are working in Jake’s team”.[31]
[30] Refer to Transcript 18 December 2017 at P-45.
[31] Ibid at P-45.
The NDIA stated that the first option was for the Tribunal to accept the level of funding that had been recommended by Ms Parsons as set out in paragraph [62] of these Reasons for Decision, or the second option was to accept the level of funding recommended (separately, but taken together) of Ms Cohen and Ms Greiner.[32]
[32] Refer to paragraph [8] of the NDIA’s Closing Submissions.
The NDIA contended the recommendation of Ms Parsons should be accepted because:
Ms Parsons adopts an approach based upon what is considered best practice, advocating for an interdisciplinary approach to Jake’s support where “the group of professionals from diverse fields work in a coordinated fashion toward a common goal for Jake”. In her opinion, a funding model overseen by a qualified positive behavioural support practitioner (i.e. Guidestar) provides flexibility in administering the plan, directing funds to where they are best used after the coordination of Jake’s supports have been worked out. If increases in funding are needed, there is scope for a review in future. On the other hand, as developed below, the recommendations of Ms Cohen and Ms Greiner are neither coordinated nor integrated. The recommendations, therefore, have the potential to contain inefficiencies (including ‘doubling up’) and to replicate past failures.
Mr Castledine’s response to the NDIA’s stated position was captured in paragraph [33] of his Closing Submissions, where it was contended that:
The Agency’s position in this proceeding involves a premature and dramatic reduction/removal of key support planks for this Applicant (i.e. 144 therapy hours reduced to 100 hours, 520 hours of Practice Coaching support cut down to 76 hours). The Applicant submits that the Agency’s position should be rejected as it undermines the clinical efficacy of the integrated model of supports. It forces the therapists and other professionals directly involved in the care of Jake to substantially modify and compromise their strategies and implementation with a negative flow on effect on Jake and his well-being.
In relation to the provision of transport supports for Mr Castledine, Ms Castledine confirmed that Mr Castledine was no longer seeking the provision of a vehicle (including ongoing maintenance costs). Instead, Ms Castledine said he sought reimbursement for the cost of travelling by his own private vehicle for a specified number of kilometres per annum for his travel each morning and afternoon between the DHHS Unit and his family home and for day trips to and from the DHHS Unit.
At the commencement of the hearing, the NDIA initially took issue with the mileage that had been claimed by Mr Castledine. Counsel for the NDIA acknowledged that it was mindful of the approach in McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle); and the NDIA accepted that once it was identified that there was a need for a transport support, it was to be fully funded. The NDIA also indicated at the hearing that it did not take issue with Mr Castledine’s need to use a private car for transport, rather than public transport or third party vehicles, accepting that the latter option was not feasible, given Mr Castledine’s difficulties when exiting a car.[33]
[33] Refer to Transcript 18 December 2017 at P-45.
At the commencement of the hearing, counsel for the NDIA described the transport issue as follows:[34]
There are two issues, it seems to me, looking at the statements of position, one being – it doesn’t seem to me we’re actually very far apart in what we see as the relevant legal analysis. The question from us is: (1) how much of this travel is really directly connected to Jake’s disability and how much something else; and then the second issue is what hourly rate really should be applied – sorry, I mean kilometre rate – should it be the 66 cents or should it be the 77 cents; and what is the underlying idea behind that.
[34] Ibid at P-46.
However, as the hearing progressed and more evidence was adduced by Ms Castledine about this subject, either at the request of the NDIA or the Tribunal, including log books maintained by Ms Castledine and explanations about the day trips taken by Mr Castledine, the NDIA’s position softened and the NDIA accepted that travel costs arising from the journeys particularised by Ms Castledine (upon which the proposed annual mileage figure was calculated) were reasonable and necessary supports for Mr Castledine. Consequently, by the end of the hearing, the issue in relation to the transport supports became confined to the issue of what was an appropriate rate per km at which Mr Castledine’s travel costs should be calculated.
ISSUES
Common ground
By the end of the hearing, it was common ground between the parties that:
(a)better coordination was required of the various therapeutic and carer supports provided to Mr Castledine on a day-to-day basis;
(b)the delivery of those supports should be led (in the clinical sense) by a suitably qualified PBS practitioner, which they agreed should be Guidestar, or more specifically, Mr Castledine’s supervising psychologist Ms Killmier;
(c)Mr Castledine requires ongoing therapeutic support by an occupational therapist and speech therapist;
(d)the various therapeutic and support carer interventions should be delivered in accordance with a BSP tailored to Mr Castledine’s needs; and
(e)that Mr Castledine should be provided with funding as a support for his disability-related travel costs.
However, the parties did not agree as to the appropriate level of funding that should be approved for the various therapeutic interventions, practice coaching and in relation to the rate that Mr Castledine’s agreed disability-related transport costs should be calculated.
Issues for determination
At the conclusion of the hearing, the issues remaining between the parties requiring determination by this Tribunal were:
(a)how many hours of therapeutic intervention is a reasonable and necessary support for Mr Castledine, and how the funding for those supports should be structured;
(b)how many hours of practice coaching is a reasonable and necessary support for Mr Castledine and how the funding for this support should be structured; and
(c)whether Mr Castledine should receive funding for his travel costs and if so, how that funding should be calculated.
Jurisdictional issue
The Tribunal is required to determine those issues in the context of reviewing the statement of participant supports (forming part of Mr Castledine’s Second Plan), being the subject of the Decision Under Review. As mentioned above, the Second Plan has been superseded by three other consecutive NDIS plans. This raises an issue about the extent to which the Tribunal has jurisdiction to make a decision (and final orders) which will have the effect of covering supports that should be provided to Mr Castledine beyond the date upon which the Second Plan ceased to have effect as a result of it being replaced by the Third Plan (and subsequent NDIS plans).
When this issue was discussed at the hearing, the NDIA gave an undertaking that, in effect, it would apply or incorporate any findings made by the Tribunal about reasonable and necessary supports for Mr Castledine into his current plan. The NDIA is to be commended for its preparedness to adopt a pragmatic approach to this issue.
The Tribunal has closely considered the provisions of the NDIS Act as they relate to the jurisdictional question about the extent of the Tribunal’s powers in cases where the NDIS plan containing the statement of participant supports under review had been superseded by successive NDIS plans for the participant.
This Tribunal proposes to adopt the same approach to this jurisdictional issue arising in Mr Castledine’s application, as it has adopted previously in another NDIS case of Re Ewin and National Disability Insurance Agency [2018] AATA 4726 (Ewin). This Tribunal interprets the provisions of the NDIS Act relevant to this jurisdictional issue as stated in paragraphs [280] to [318] of the Reasons for Decision in Ewin. For the sake of brevity, the Tribunal will not reproduce those paragraphs in these Reasons for Decision but adopts those reasons in this application by reference to the Ewin decision.[35] In summary, this Tribunal holds the view that:
(a)it has the power to set aside a decision by a reviewer to approve a statement of participant supports forming part of a plan, and in substitution, to make a decision to approve a new statement of supports for an NDIS participant and such decision may be ordered by the Tribunal to come into effect on a day specified by the Tribunal;
(b)it has the power to extend the review date in the statement of participant supports and may, if it considers it appropriate in the circumstances of the application before it, extend the review date beyond the review date nominated in the original statement of participant supports which was the subject of the review; and
(c)if such a decision is made and in light of the matters set out in this paragraph, for the reasons stated by this Tribunal in paragraphs [280] to [318] of the Reasons for Decision in Ewin, a new plan will come into effect for Mr Castledine by force of s 37(1) of the NDIS Act.
[35] The Tribunal also notes it has taken into consideration the observations of Deputy President Forgie in the recent decision of Re Williamson and National Disability Insurance Agency [2019] AATA 2944.
Section 37(1) provides as follows:
A participant’s plan comes into effect when the CEO has:
(a)received the participant’s statement of goals and aspirations from the participant; and
(b)approved the statement of participant supports.
In relation to s 37(1)(a), the Tribunal notes that a statement of goals and aspirations has been provided by Mr Castledine. At the present time, Mr Castledine’s goals and aspirations have been described by Ms Castledine as follows:[36]
Short-term goals
To become more independent within everyday life, including over the next 12 months. Whilst strengthening my relationships with my family and the community.
To be safe in the community and improve the quality of my community access while building meaningful volunteer and work opportunities.
Medium or long-term goals
To make a wide circle of friends who share my interests.
To have support to make decisions in my life through voluntary circles or Boards.
I would like to move to a modified robust property that meets my complex support needs to build independence and opportunity to live with people other than my parents.
[36] Refer to pages 7 and 8 of the Fifth Plan.
Self-management arrangement – not an issue for determination
At the hearing the NDIA raised a number of concerns about the effectiveness of the coordination of Mr Castledine’s various supports and therapies under the current self-management arrangements. Those concerns seemed to have been prompted by the observations of Guidestar made in the BAR issued in November 2017.
Mr Castledine’s representatives contended that the NDIA had unduly focussed on this issue at the hearing and had been critical of Ms Castledine’s management of her son’s supports. Ms Castledine contended that the NDIA in doing so, had failed to acknowledge that there were “no viable alternatives” to self-management because she said that: (a) 14 different “day program” services had refused to accept Mr Castledine as a client due to his complex needs and behaviours of concern; and (b) there were significant gaps in the markets in the provision of specialised support coordination and disability support workers capable of caring for participants like Mr Castledine.[37]
[37] Refer to paragraph [55] and [56] of Mr Castledine’s Closing Submissions.
While it was apparent that Ms Castledine had been doing her best to manage the funding under her son’s successive NDIS plans and that she was clearly dedicated to providing ongoing care and assistance to him to the extent she was able, the NDIA’s stated concerns about the effectiveness of the current self-management arrangements, or at least, the direct employment arrangements in respect of the support staff in place, resonated to some degree with the Tribunal given the limited time Ms Castledine’s has (given her onerous work and study commitments), to attend to the responsibilities of optimally managing the funding and provision of extensive supports to Mr Castledine under his NDIS plans.
On the other hand, the NDIA’s concerns were raised in the context of it having already expressly given its approval for self-management of Mr Castledine’s NDIS funding when the Second Plan came into effect. Further, the NDIA continued to approve self-management of most supports in Mr Castledine’s subsequent statements of participant supports in his successive NDIS plans.
In essence, the NDIA was suggesting, at a general level at least, that an external agency should be identified and engaged by Mr Castledine and such agency will, in turn, employ the team of support carers to provide support to Mr Castledine, instead of the current arrangements where they are employed directly by Ms Castledine under the current self-management arrangements. However, the NDIA agitated this issue in the absence of any specific alternatives being put forward by it. The NDIA did not provide any meaningful response to Ms Castledine’s claim that no other day program service would accept her son or with her challenges to date in finding a suitable external agency.
The Tribunal must consider what review date should be included in Mr Castledine’s new statement of participant supports, being one aspect of a statement of participant supports required by s 33(2)(c) of the NDIS Act. The Tribunal considers that it is appropriate to extend the review date in Mr Castledine’s new statement of participant supports to 22 June 2020. This will allow for a reasonable period of time (a further nine months) to pass to allow for Mr Castledine’s transition to independent living to progress further and/or be completed, before the NDIA will be prompted by the review date nominated above, to undertake a further review of Mr Castledine’s circumstances and supports. If Mr Castledine’s circumstances change before this nominated review date, either party is at liberty under s 48 of the NDIS Act to instigate an earlier plan review.
338.
339. I certify that the preceding 337 (three hundred and thirty seven) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker
340.
..........................[sgd]............................................
Associate
Dated: 16 October 2019
Dates of hearing:
18, 19, 20 December 2017 and 21 February 2018
Advocate for the Applicant:
Solicitors for the Applicant:
Ms N Achuthan
Victoria Legal Aid
Counsel for the Respondent: Ms K Foley of Counsel Solicitors for the Respondent: NDIA in-house lawyers
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