Caterson and National Disability Insurance Agency
[2024] AATA 3440
•30 September 2024
Caterson and National Disability Insurance Agency [2024] AATA 3440 (30 September 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2022/8454
Re:Ryan Caterson
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member D Katter
Date:30 September 2024
Place:Brisbane
The decision under review is set aside and the matter is remitted for reconsideration by the Respondent in accordance with directions:
(i)the specialist disability accommodation for the Applicant be new build, robust, house, one occupant, two bedrooms, high physical support with on-site overnight assistance and fire sprinklers;
(ii)funding for supported independent living at a high intensity rate, comprising 1:1 support for 24 hours per day, 7 days per week (inclusive of active overnight support); and
(iii)the supports at (i) and (ii) are to be agency managed and all remaining supports in the Applicant’s plan are to be plan managed.
..................[SGD]...............
Senior Member D Katter
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports –whether requested supports are reasonable and necessary pursuant to section 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) – decision under review set aside and remitted with directions
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Cases
QKNJ v National Disability Insurance Agency [2023] AATA 794
REASONS FOR DECISION
Senior Member D Katter
30 September 2024
The Applicant, born in 1997[1], is a participant in the National Disability Insurance Scheme[2].
[1]Transcript 30 April 2024, P-10 line 20; Applicant’s Statement of Facts, Issues and Contentions dated 18 December 2023, page 1, paragraph 1.
[2]Applicant’s Statement of Facts, Issues and Contentions dated 18 December 2023, page 1, paragraph 1.
A ’participant plan’ for the Applicant ‘came into effect’[3] on 24 May 2022 and included a statement of participant supports[4]. The Applicant’s ‘participant plan’ included funding for $49,246.62 for ‘single resident Robust Specialist Disability Accommodation’[5].
[3] Section 37 of the Act.
[4]Respondent’s Statement of Facts, Issues and Contentions dated 16 February 2024, page 1, paragraph 2.
[5]Applicant’s Statement of Facts, Issues and Contentions dated 18 December 2023, page 2, paragraph 6.
On 12 August 2022 the Applicant requested an internal review[6], further to the Applicant’s ‘participant plan’ which included funding of $49,246.62 for ’single resident Robust Specialist Disability Accommodation’[7]. The Applicant states that the funding limit in the ‘participant plan’”, at that time, related to a one-resident villa/duplex/townhouse[8].
[6]Applicant’s Statement of Facts, Issues and Contentions dated 18 December 2023, page 2, paragraph 7.
[7]Applicant’s Statement of Facts, Issues and Contentions dated 18 December 2023, page 2, paragraph 6.
[8]Applicant’s Statement of Facts, Issues and Contentions dated 18 December 2023, page 2, paragraph 6.
On 13 September 2022[9] the Respondent confirmed the plan of 24 May 2022, including a statement of participant supports and determined that the requested support was not reasonable and necessary according to sections 34(1)(c) and (d)[10] of the National Disability Insurance Scheme Act 2013 (Cth) (the ‘Act’).
[9]Applicant’s Statement of Facts, Issues and Contentions dated 18 December 2023, pages 2-3, paragraph 8.
[10]Respondent’s Statement of Facts, Issues and Contentions dated 16 February 2024, page 1, paragraph 2.
On 10 October 2022 the Applicant lodged an application with the Tribunal for review[11].
[11]Respondent’s Statement of Facts, Issues and Contentions dated 16 February 2024, page 2, paragraph 4.
The Respondent stated that ‘since the application was lodged in the Tribunal, the Applicant’s plan was extended on 24 May 2023 and the Applicant was provided with the same level of supports from the previous year, with a review date of 24 May 2024 and, by virtue of section 103(2) of the Act, the application is also taken to be an application for review of the decision to approve the statement of supports under the new plan’[12].
[12]Respondent’s Statement of Facts, Issues and Contentions dated 16 February 2024, page 2, paragraph 5.
The Applicant submitted that the ‘substantive issue is whether the Applicant can be a sole occupant of a “specialist disability accommodation” property, having regard to the Respondent’s price guide not providing for a house for a single occupant’[13]. The Applicant submitted that there was a ‘second issue as to whether the Applicant’s Mother, Ms Kathleen Caterson, can be paid as a support worker for the Applicant’[14]. The Respondent did not submit alternative issues beyond those submitted by the Applicant[15].
[13] Transcript 30 April 2024, P-2 lines 15-18.
[14] Transcript 30 April 2024, P-2 lines 19-21.
[15] Transcript 30 April 2024, P-2 lines 29-31.
ACCOMMODATION
As to accommodation for the Applicant, after the hearing, the Applicant submitted the following form of order:[16]
[16] Submissions of the Applicant as to the form of the orders received on 2 May 2024.
‘The decision under review is remitted to the Respondent under s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) with an order that the following supports are reasonable and necessary supports to be included in the Applicant’s plan:
(a)Subject to the provision of a suitable quote, SDA comprising:
SDA Type: New Build;
Design Category: Robust;
Building type: House, sole occupant;
Location: QLD – Brisbane – East;
OOA: Yes;
Fire sprinklers: Yes
(b)Funding for supported independent living at a high intensity rate, comprising:
1:1 support for 24/7; and
Active overnight support.’
The Respondent submitted, after the hearing, as to accommodation, the following form of order:[17]
[17] Submissions of the Respondent as to the form of the orders received on 3 May 2024.
‘Pursuant to section 43(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) the decision under review is varied as follows:
(a)Specialist Disability Accommodation (SDA) specified in Appendix A of the SDA Pricing Arrangements and Price Limits 2023-2024, comprising:
(i) SDA Type: New Build;
(ii) Design Category: Robust;
(iii) Building type: House, 2 bedrooms, 2 SDA participant;
(iv) Location: QLD – Brisbane – East;
(v) OOA: Yes; and
(vi) Fire sprinklers: Yes.
(b)Funding for supported independent living at a high intensity rate, comprising:
(i) 1:1 support for 24 hours per day, 7 days per week (inclusive of active overnight support).’
The Applicant submitted that[18]:
‘… the Applicant was approved for SDA … for a new building, for a robust build for a house, for East Brisbane with overnight assistance or OOA with fire [sprinklers] … the only point of contention between the parties is that the Applicant is seeking funding as a sole occupant of the house, whereas the [R]espondent contends that the Applicant should be funded as a two-residence.’
[18] Transcript 30 April 2024, P-10 lines 30-35.
The Respondent submitted[19]:
‘We accept that the Applicant needs … onsite overnight accommodation. … We do not say that the Applicant’s reasonable and necessary support is that he needs to live with someone. We are simply seeking the order to pay the maximum amount that can be paid under the price limits. … [T]he Applicant is free to choose any property that exists in Queensland or in east Brisbane and use that funding appropriately because there’s sufficient funds to do so. … He needs space. He can’t be with anybody else, and he needs space, and an apartment won’t be satisfactory.’
[19] Transcript 30 April 2024, P-27-29.
Section 31 of the Act states that a participant’s plan should, so far as reasonably practicable, be individualised and be directed by the participant. At the hearing and in the orders submitted by the parties as to specialist disability accommodation for the Applicant, as referred to above, the parties did not submit that single accommodation in a house was not, according to section 34 of the Act, a reasonable and necessary support. Section 35 of the Act states: ‘(1) The National Disability Insurance Scheme rules may make provision in connection with the funding or provision of reasonable and necessary supports or general supports’. Section 9 of the Act states relevantly: ‘National Disability Insurance Scheme Rules’ means the rules mentioned in section 209.’ Section 209 states that ‘the Minister may, by legislative instrument, make rules called the National Disability Insurance Scheme rules’. The National Disability Insurance Scheme (Specialist Disability Accommodation) Rules2020 (Cth) (the ‘Rules’) at section 10 state: ‘This Part is made for the purposes of subsections 33(7), 34(2), 35(1) and 209(2A) of the Act’. Section 11 states:
‘Division 2—Eligibility to receive support for specialist disability accommodation
11 Eligibility to receive support for specialist disability accommodation:
A participant is eligible to receive support for specialist disability accommodation under the National Disability Insurance Scheme if the CEO is satisfied that:
(a)the participant:
(i) has an extreme functional impairment (see section 12); or
(ii) has very high support needs (see section 13); and
(a)the participant meets the SDA needs requirement (see section 14).’
Section 12 of the Rules states:
‘12 When a participant has an extreme functional impairment
1A participant has an extreme functional impairment if:
(a)the impairment results in extremely reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i) mobility;
(ii) self-care;
(iii) self-management; and
(b)the participant has a very high need for person-to-person supports in undertaking the activity even with assistive technology, equipment or home modifications.’
The Applicant submitted that there is ‘extreme functional impairment’[20]. The Applicant is 26 years of age[21]. The Applicant has impairments attributable to[22]: ‘Angel syndrome, intellectual disability, epilepsy and cerebral palsy’. The Applicant ‘experiences’ ’severe GORD resulting in numerous choking incidents’, ’extreme territorialism and mental rigidity’, ’severe dysregulated behaviours’ and ’double incontinence’[23]. The Applicant has an extreme functional impairment in that the Applicant’s impairments result in extremely reduced functional capacity to undertake, or psychosocial functioning in undertaking, self-care and self-management. The Applicant has a very high need for person-to-person supports in undertaking self-care and self-management even with assistive technology, equipment or home modifications. The Applicant has an extreme functional impairment within the meaning of section 12 of the Rules.
[20] Transcript 30 April 2024, P-12 line 9.
[21]Respondent’s Statement of Facts, Issues and Contentions dated 16 February 2024, page 1, paragraph 1.
[22]Respondent’s Statement of Facts, Issues and Contentions dated 16 February 2024, page 1, paragraph 1.
[23]Applicant’s Statement of Facts, Issues and Contentions dated 18 December 2023, page 1, paragraph 2.
Section 13 of the Rules states:
‘13 When a participant has very high support needs
1A participant has very high support needs if:
(a)the participant has lived in specialist disability accommodation for extended periods and living in that accommodation has impacted on the capacity of the participant to transition to alternative living arrangements and support; or
(b)the participant has a very high need for person-to-person supports, either immediately available or constant, for a significant part of the day and either:
(i) there are limitations in the availability, capacity or capability of the participant’s informal support network or risks to its sustainability; or
(ii) the participant is at risk or poses a risk to others, and that risk could be mitigated by the provision of specialist disability accommodation, having regard to the participant’s response to risk and the interaction of the participant with the environment.’
It is not in dispute between the parties that the Applicant has significant needs and impairments[24]. Both parties submitted that the Applicant should receive ‘funding for supported independent living at a high intensity rate, comprising 1:1 support for 24 hours per day, 7 days per week, inclusive of active overnight support’[25]. Ms Laumer, an occupational therapist, stated[26] that the Applicant is at increased risk of physical injury to himself, increased risk of infection, exposure to starvation and dehydration[27]. Mr Watson, team leader, Loganholme Respite Centre, stated that ‘the Applicant has attended the centre for over 15 years. During that time, has always attended with a 1:1 staff to client ratio due to significant behavioural concerns … , harm to self, including biting or incidental harm through banging surfaces or touching hot electrical elements or cooking pans containing hot products and spitting/throwing mucous at people, throwing objects and kicking people’[28]. Further, Mr Watson states that the Applicant ‘generally will only sleep 3-4 hours on average during the night, requiring staff to be available to support him through the rest of the night … and becomes extremely unpredictable, often targeting the staff working directly with him’[29]. There is, therefore, evidence from Ms Laumer[30] and Mr Watson that accords with the submissions made by the parties as to the ‘very high support needs’ of the Applicant. The Applicant has very high support needs in that the Applicant is at risk or poses a risk to others, and that risk could be mitigated by the provision of specialist disability accommodation, having regard to the participant’s response to risk and the interaction of the participant with the environment. The Applicant ‘has very high support needs’ within the meaning of section 13 of the Rules.
[24] Transcript 30 April 2024, P-11 line 2.
[25] Submissions of the parties as to the form of the orders received on 2 and 3 May 2024.
[26] Transcript 30 April 2024, P-11 line 7.
[27] Transcript 30 April 2024, P-11 lines 12-15.
[28] T documents, 2.4, dated 22 May 2023.
[29] T documents, 2.4, dated 22 May 2023.
[30] Transcript 30 April 2024, P-11 lines 12-15.
Section 14 of the Rules states:
‘14 When a participant meets the SDA needs requirement
1A participant meets the SDA needs requirement if, when compared to other supports alone, combined specialist disability accommodation and other supports would:
(a)better assist the participant to pursue the goals, objectives and aspirations set out in the participant’s statement of goals and aspirations; and
(b)be more effective and beneficial, where possible, in:
(i) mitigating or alleviating the impact of the participant’s impairment upon the participant’s functional capacity; and
(ii) preventing the deterioration of the participant’s functional capacity; and
(iii) improving the participant’s functional capacity; and
(iv) maintaining or promoting the participant’s ability to build capacity, including in the medium or long term; and
(v) maintaining or promoting the participant’s opportunities to develop skills; and
(c)if the participant has very high supports needs—be more effective and beneficial, where possible, in:
(i) reducing the participant’s future needs for supports which might be required due to inappropriate accommodation; and
(ii) assisting the participant to pursue goals related to life opportunities and life transitions; and
(d)if the participant has an extreme functional impairment—be more effective in providing the participant with stability and continuity of support; and
(e)represent better value for money.
2For the purposes of paragraph (1)(e), regard must be had to the following matters if the participant has very high support needs:
(a)whether combined specialist disability accommodation support and other supports would be likely to substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(b)the cost of providing the participant with supports needed to live in accommodation other than specialist disability accommodation, taking into account:
(i) whether those supports may be shared with other participants; and
(ii) limitations of the participant’s informal support network.’
As to the Applicant being a sole occupant, the report by Mr Watson, as referred to above, refers to the Applicant spitting, throwing mucous at people, throwing objects and kicking people[31]. Mr Watson refers to the Applicant in the past sharing, for a trial period, accommodation with another person, which trial was ‘unsuccessful’, due to the behaviour of the Applicant towards the other participant[32].
[31] T documents, 2.4, dated 22 May 2023.
[32] T documents, 2.4, dated 22 May 2023.
The Applicant had previously been approved for a duplex, villa type arrangement[33]. The Applicant submitted that the accommodation should be a house[34], with 2 bedrooms by virtue of the need for overnight assistance[35], where the Applicant requires 24/7 care, with disturbed sleep patterns, so that there would be a room to allow a carer to rest; and ‘it would not be utilised as a separate accommodation in that sense’[36]. The Applicant further described the accommodation sought as being a ‘very small house’, ’no more than a granny flat or perhaps a small property’[37].
[33]Applicant’s Statement of Facts, Issues and Contentions dated 18 December 2023, page 2, paragraph 6.
[34] Transcript 30 April 2024, P-10, line 32.
[35] Transcript 30 April 2024, P-14, line 29.
[36] Transcript 30 April 2024, P-14, line 40-43.
[37] Transcript 30 April 2024, P-24, lines 45-47.
As to a house for the Applicant, the report by Ms Laumer stated[38]: ‘[There are] sensory issues for the Applicant if he is placed near roads when cars come close to the property, when other residents approach the property. The Applicant has … in those circumstances … throw[n] faeces over the fence and around the property[;] very reactive behaviour that poses a risk to others.’ Ms Laumer refers to a block size for accommodation of approximately 700 metres square[39].
[38] T6, page 66.
[39] T6, page 66.
The parties submit[40] and there is satisfaction that the Applicant is eligible to receive support for specialist disability accommodation (‘SDA’) under the scheme in that the Applicant has an extreme functional impairment, has very high support needs, meets the ‘SDA’ needs requirement and the ‘SDA’ is a reasonable and necessary support for the Applicant.
[40]Applicant at Transcript 30 April 2024, P-12, lines 42 and 43.
Section 15 of the Rules states:
‘15 Matters to be determined by CEO in respect of each eligible participant
1The CEO must determine the following matters for an eligible participant:
(a)the SDA building type that is appropriate to support the eligible participant (see section 16);
(b)the SDA design category that is appropriate to support the eligible participant (see section 17);
(c)the area in which the specialist disability accommodation is to be located (see section 18);
(d)whether the specialist disability accommodation is to be provided as an in‑kind support.
Note: The CEO may determine more than one SDA building type, SDA design category or location in relation to an eligible participant. The SDA building type, SDA design category and location must be specified in the eligible participant’s plan: see section 19.
2If an eligible participant notifies the CEO, in writing, that the eligible participant wishes to reside at:
(a)a dwelling that the eligible participant occupied immediately before a determination under subsection (1) is made; or
(b)a dwelling that the eligible participant moved to in accordance with an earlier determination made under subsection (1); or
(c)a dwelling that does not meet the matters determined by the CEO under subsection (1) in relation to the eligible participant while the eligible participant finds and transitions to accommodation that satisfies those matters;
the CEO may determine, in addition to the matters mentioned in subsection (1), that the eligible participant is eligible to receive support for specialist disability accommodation in relation to the accommodation specified in the notice.
Note 1: An eligible participant may be eligible under subsection (2) to receive support for a dwelling that only satisfies the minimum design requirements specified for the SDA design category of basic.
Note 2: The matters determined by the CEO under this section affect the amount of support that can be paid to an eligible participant for specialist disability accommodation. The SDA Price Guide sets out the maximum amount of support that is available for specialist disability accommodation.’
As to section 16 of the Rules, the parties both submitted, as referred to above, that the ‘SDA’ building type in Schedule 1 of the Rules should be a house:
‘1 SDA building types
The following table sets out the building types that are SDA building types and the features and Building Code of Australia classification for each building type.
SDA building types
Item
Building type
Features
Building Code of Australia classification
…
…
…
…
3
House
The features of a house are as follows:
(a) it is a low‑rise dwelling with gardens or a courtyard;
(b) it is located on a clearly separate land area (separated by, for example, a fence, hedge or other form of delineation);
(c) it has no shared wall, roof, entry area, driveway, carpark or outdoor area with any other dwelling other than an ancillary villa, townhouse or duplex that has no more than one resident;
(d) the parcel of land on which the house is located is proportional to the number of residents and is consistent with similar properties in the neighbourhood in which the house is located;
(e) the parcel of land on which the house is located has no more than 2 ancillary villas, duplexes or townhouses”
Class 1 or 3
As to section 17 of the Rules, the parties both submitted, as referred to above, that the SDA design category in Schedule 2 of the Rules should be ‘robust’:
‘1 SDA design categories
The following table sets out the SDA design categories and the features for each category.
SDA design category
Item
SDA design category
Features
…
…
…
4
Robust
Housing that has been designed to incorporate a high level of physical access provision and be very resilient, while reducing the likelihood of reactive maintenance and reducing the risk to residents and the community.’
As to section 18 of the Rules, the parties both submitted, as referred to above, that the area in which the specialist disability accommodation is to be located is: ‘Location: QLD – Brisbane – East’.
Section 15 of the Rules, as referred to above, also states that the CEO must determine whether the specialist disability accommodation is to be provided as an in-kind support. The phrase ‘in-kind support’ in section 5 of the Rules is defined as having the meaning given by section 6.8 of the National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth):
‘6.8 Paragraph 6.9 applies if the support is an in-kind support. A support is an in-kind support if:
(a)the support is available to be provided to the participant by a provider (the in-kind provider) who is:
(i) the relevant jurisdiction; or
(ii) the Commonwealth; or
(iii) a provider under a service delivery mechanism operated by the relevant jurisdiction or the Commonwealth; or
(iv) a person engaged or funded by the relevant jurisdiction or the Commonwealth; and
(b)the support is made available to the Agency on an in-kind basis as part of the contribution to the NDIS made by:
(i) the relevant jurisdiction; or
(ii) the Commonwealth; whether or not the participant has previously been provided with the support.’
The orders submitted by the parties, referred to above, do not state whether the specialist disability accommodation is to be provided as an ‘in-kind support’. The parties did not make specific submissions as to whether or not the specialist disability accommodation is to be provided as an ‘in-kind support’. Having regard to the eligibility of the Applicant, as referred to above, whether the specialist disability accommodation is to be provided as an in-kind support must be determined when the matter is remitted for reconsideration by the Respondent[41].
[41] Section 15(1)(d) of the Rules.
Note 2 in section 15 of the Rules states that ‘the matters determined under section 15 affect the amount of support that can be paid to an eligible participant for specialist disability accommodation and the SDA Price Guide sets out the maximum amount of support that is available for specialist disability accommodation’. Section 5 of the Rules states:
‘SDA Price Guide means the publication known as the National Disability Insurance Scheme Price Guide for Specialist Disability Accommodation, published by the CEO, as in force from time to time.
Note: The SDA Price Guide could in 2020 be viewed on the Agency’s website (>
There is a Specialist Disability Accommodation Pricing and Payments Framework document by the Respondent[42]. The Respondent submitted, regarding the Pricing and Payments Framework, as to the specialist disability accommodation for the Applicant[43]: ’ … The purpose is to provide the $80,000 as increased … so that any of those villas, houses can be utilised. … At page 43, Appendix H, Table 25, … Dwelling has onsite overnight accommodation. A house, two bedrooms, one SDA participant. The Respondent’s willing to increase the amount to account for that.’ That submission by the Respondent was made in the context where the Pricing and Payments Framework document does not appear to include a specific identification for a new build, robust, house, one occupant, two bedrooms, high physical support with on-site overnight assistance and fire sprinklers. The Respondent added the following to the draft order submitted by the Respondent: ’ … the Respondent acknowledges [that the] amended draft orders reflect the higher funding amount available under Appendix A. An order seeking 2 bedrooms; 1 SDA participant is impermissible as an SDA provider is unable to register their property as a 2 bed, 1 participant property. If the provider were to claim for additional residents or even appendix H funding when the SDA is, in fact, being used for only one resident/participant, they would risk their registration as an SDA provider. However, if the participant is able to negotiate with the SDA provider to allow only 1 participant and utilise appendix H if there were to be another resident (non-NDIS participant), for example, his mother or a friend or utilise the funding to find a 1 resident, 1 bedroom townhouse/villa/duplex.’ Where note 2 in section 15 of the Rules states that the ‘SDA Price Guide sets out the maximum amount of support that is available for specialist disability accommodation’, then as submitted by the Respondent, the funding for a new build, robust, house, one occupant, two bedrooms, high physical support must not exceed the maximum amount of support that is available for specialist disability accommodation in the SDA Price Guide, published, as in force from time to time.
[42]
[43] Transcript 30 April 2024, P-27-29.
Having regard to the submissions of the parties, for the reasons above, the decision under review is set aside as to the specialist disability accommodation for the Applicant and remitted for reconsideration by the Respondent in accordance with the following directions in that regard: (1) the specialist disability accommodation for the Applicant be new build, robust, house, one occupant, two bedrooms, high physical support with on-site overnight assistance and fire sprinklers; and (2) funding for supported independent living at a high intensity rate, comprising 1:1 support for 24 hours per day, 7 days per week (inclusive of active overnight support).
SUPPORT
The Applicant submitted that the following order be made:
‘ … The Applicant’s Mother is to be paid as a support worker which is a reasonable and necessary support; and
The funding is to be plan managed.
The Tribunal notes that, the Applicant’s Mother is to be paid as a support worker until the Applicant has fully transitioned to SDA.’
The Respondent submitted that the following order be made:
‘ … (ii) The supports at paragraphs (a) and (b) are to be agency managed* and the remaining supports in the Applicant’s plan are to remain plan managed.
*The Applicant will maintain choice and control when choosing the NDIS registered provider for the delivery of their supports pursuant to rule 1.2 of the National Disability Insurance Scheme (Support for Participants) Rules 2013.’
Section 34 of the Act states:
‘Reasonable and necessary supports
1For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
2The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).’
It was not in dispute at the time of hearing that the Applicant’s Mother was providing
full-time care for the Applicant at the home of the Applicant’s Mother. The Applicant submitted that Ms Caterson, the Applicant’s Mother, was ‘performing a highly specialised support role for [the Applicant] by virtue of his extreme impairment and the Applicant requires that level of support’. The Applicant submitted that section 34(1)(e) uses the word ‘support’ and not ‘care’. It was submitted that the Applicant’s Mother ‘performs a role which far surpasses that of a normal care arrangement’. ‘That the circumstance is an exceptional one, that the care transcends that of normal care’. The Applicant’s Mother is on the carer’s payment and carer’s allowance through Centrelink and has received that for a ’very, very long time’. As to s 34(1)(e), the Applicant submitted that what Ms Caterson provides is above and beyond what would be considered to be a reasonable level of informal support for her to provide.The Respondent submitted that there is no dispute that the Applicant needs a very high level of support, 24/7, one-to-one. The Respondent submitted that that support, by its very nature, requires someone to be present all of the time. That level of support is normally funded so that multiple support workers are able to attend with regular shifts. In the Respondent’s submission it is not practical for one person to stay up for 24 hours per day providing support. The Respondent submitted that the funding for the Applicant’s Mother to be paid as a support worker isn’t reasonable and necessary and should not funded pursuant to the rules.
There are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth). Those rules state that they are made for the purposes of sections 33 and 34 of the Act. Section 3.4 of those rules states:
“Reasonable family, carer and other support
3.4 In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
…..
(b) for other participants:
(i) the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and
(ii) the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:
(A) the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and
(B) the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and
(C) the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and
(iii) the extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes;
(c)for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.’
As referred to above, there will be funding for the Applicant for supported independent living at a high intensity rate, comprising 1:1 support for 24 hours per day, 7 days per week inclusive of active overnight support. Regard has been had to the intensity and type of support that is required and whether it is appropriate for the Applicant’s Mother to be providing that care. It was not submitted that Ms Caterson is formally trained in this regard. The funding or provision of that support takes account of what is reasonable to expect the Applicant’s family, carers, informal networks and the community to provide. It is not effective and beneficial for the Applicant, having regard to current good practice for the Applicant’s Mother to be paid as a sole support worker. There is to be consideration of the extent of any risks to the long term well-being of the Applicant’s Mother and to paraphrase the rules, a family member should not be expected to provide care. The Applicant’s Mother providing paid support is not most appropriately funded or provided through the National Disability Insurance Scheme, as the Applicant’s Mother is on the carer’s payment and carer’s allowance through Centrelink and has received that for a ‘very, very long time’. Where there is a carer payment, providing a further payment to the Applicant’s Mother to assist with the care of the Applicant will likely be a duplication and therefore, would not be reasonable and necessary for the Respondent to fund. There will not be a direction that the ‘Applicant’s Mother is to be paid as a support worker until the Applicant has fully transitioned to SDA’, as submitted by the Applicant.
As the Applicant’s Mother is not a registered provider, the Applicant submitted that that meant that she would not be able to be paid if the plan was agency managed and the reason that the Applicant submits that the funding should be plan managed ‘is to alleviate any concerns in relation to independence’. ‘It is also in relation to the flexibility of supports that are provided in terms of what supports can be utilised and how they are to be paid, as opposed to the agency having to be in control of how those funds are distributed’. The Respondent submitted that the Specialist Disability Accommodation and the funding for supported independent living at a high intensity rate, comprising 1:1 support for 24 hours per day, 7 days per week, inclusive of active overnight support, are to be agency managed and the remaining supports in the Applicant’s plan are to be remain plan managed. The Respondent stated in the draft order that: ’The Applicant will maintain choice and control when choosing the NDIS registered provider for the delivery of … supports pursuant to rule 1.2 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013’. As to the provision of specialist disability accommodation in combination with funding for supported independent living at a high intensity rate, having regard to the extreme functional impairment and very high support needs of the Applicant, the management of those supports is to be by the agency. It will be directed that the specialist disability accommodation for the Applicant and funding for supported independent living at a high intensity rate, comprising 1:1 support for 24 hours per day, 7 days per week (inclusive of active overnight support) are to be agency managed and all remaining supports in the Applicant’s plan are to be plan managed.
DECISION
The decision under review is set aside and the matter is remitted for reconsideration by the Respondent in accordance with directions[44]:
[44] Section 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth).
(i)the specialist disability accommodation for the Applicant be new build, robust, house, one occupant, two bedrooms, high physical support with on-site overnight assistance and fire sprinklers;
(ii)funding for supported independent living at a high intensity rate, comprising 1:1 support for 24 hours per day, 7 days per week (inclusive of active overnight support); and
(iii)the supports at (i) and (ii) are to be agency managed and all remaining supports in the Applicant’s plan are to be plan managed.
| I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member D Katter |
..................[SGD].................
Associate
Dated: 30 September 2024
Date of hearing:
30 April 2024
Date of final submissions:
3 May 2024
Counsel for the Applicant:
Solicitors for the Applicant:
Mr Bilboe
Intrepidus Law
Counsel for the Respondent:
Mr Nolan
Solicitors for the Respondent:
MinterEllison Lawyers
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Remedies
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Statutory Construction
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Procedural Fairness
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