Chau and National Disability Insurance Agency
[2021] AATA 1996
•30 June 2021
Chau and National Disability Insurance Agency [2021] AATA 1996 (30 June 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2018/7531
Re:Selina Chau
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:30 June 2021
Place:Sydney
The reviewable decision, being the decision made 23 November 2018, refusing Ms Chau’s request for additional funding for transport, is affirmed.
.............................[SGD]...........................................
Deputy President J W Constance
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – request for increase in transport funding – where funding to be used to transport Applicant to hydrotherapy and gym sessions – where transport can be provided by supports already in place – where requested support does not represent value for money – decision affirmed
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth) ss 33, 34
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)CASES
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Milburn and National Disability Insurance Agency [2018] AATA 4928REASONS FOR DECISION
Deputy President J W Constance
30 June 2021
A. INTRODUCTION
Ms Chau has been a participant in the National Disability Insurance Scheme since February 2017. The Scheme was established by the National Disability Insurance Scheme Act 2013 (Cth) and is administered by the National Disability Insurance Agency.
Ms Chau is 50 years old. She suffers from the effects of a stroke, schizophrenia, bipolar affective disorder, hypertension and glaucoma.
Fortunately, several issues previously in dispute between Ms Chau and the Agency have been resolved through the Tribunal’s alternative dispute resolution processes. The only issue remaining relates to Ms Chau’s request for an increase in transport funding.
Ms Chau is asking the Tribunal to review the Agency’s decision made on 23 November 2018 which refused her request.[1] I will refer to this decision as the reviewable decision.
[1] Exhibit R1 at 7.
For the reasons which follow, the reviewable decision will be affirmed.
B: BACKGROUND
Ms Chau provided a statement dated 30 October 2020[2] and gave evidence at the hearing. Unless stated otherwise, findings of fact in these reasons are based on her evidence.
[2] Exhibit A1 at 1.
In 2016 Ms Chau suffered a stroke which has resulted in ongoing weakness in her right side. Her gait and her balance have been affected.
As part of her rehabilitation Ms Chau attends a Leisure Centre for hydrotherapy classes and to go to the gym. Most of the time her brother attends the Leisure Centre with her and assists her when necessary.
In her current Participants Plan, Ms Chau has several different supports, including, but not limited to:
·two hours per week assistance with domestic duties by a support worker;
·ten hours per week assistance by a support worker for social and community participation;
·$1,606.00 being “a contribution towards any transport related costs [Ms Chau incurs] during the plan period. This amount [is] paid fortnightly into [her] nominated bank account on a pro-rata basis;”[3]
·12 hours per year for physiotherapy at the therapy rate;
·28 hours per year for exercise physiology, recreational therapy, occupational therapy, or hydrotherapy at the therapy rate.
[3] Exhibit R1 at 146.
Ms Chau is seeking additional funding for a total of $3,744.00 per annum for transport. This is calculated on the basis of three return trips to the Leisure Centre each week for 48 weeks per year.
C: OUTLINE OF SCHEME AND RELEVANT PRINCIPLES
I acknowledge submissions of the Solicitor for the Agency in an earlier application to the Tribunal[4] setting out the various provisions of the Act, Rules and Guidelines which provide the framework for determining the matters in dispute in this application. I am grateful for the assistance of those submissions, which form the basis of the content of this Part.
[4] See Milburn and National Disability Insurance Agency [2018] AATA 4928.
Preparation of a participant’s plan
The Chief Executive Officer of the Agency is required to facilitate the preparation of a participant’s plan.[5] The plan must include:
·the participant’s statement of goals and aspirations; and
·a statement of participant supports prepared with the participant and approved by the Chief Executive Officer.[6]
It is to be noted that the statement of goals and aspirations is a statement by the participant and does not require the approval of the Chief Executive Officer. The statement of participant supports must specify the reasonable and necessary supports (if any) that will be funded under the Scheme.
[5] Section 32 of the Act.
[6] Section 33 of the Act.
The provisions of the Act giving the participant alone the right to state his or her goals and aspirations and at the same time requiring the Chief Executive Officer to work with the participant to prepare the statement of supports, and then to approve those supports which will be funded, “strikes a balance between two of the Act’s objects:
(a)the need to enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports, and
(b)the facilitation of a nationally consistent approach to the access to, and planning and funding of, supports for people with disability.”[7]
[7] Milburn and National Disability Insurance Agency [2018] AATA 4928 at [11]; the objects of the Act are set out in section 3 of the Act.
Implementing a plan
The plan comes into effect once the Chief Executive Officer has received the participant’s statement of goals and aspirations and approved the statement of participant’s supports.[8]
[8] Subsection 37(1) of the Act.
Money received by or on behalf of a participant must be spent in accordance with the participant’s plan.[9] An amount paid under the Scheme in respect of reasonable and necessary supports funded in accordance with a participant’s plan is referred to in the Act as the “NDIS amount.”[10]
[9] Subsection 46(1) of the Act.
[10] Section 9 of the Act.
The objects of the Act
The objects of the Act set out in section 3 make particular reference to the purpose of providing reasonable and necessary supports. Subsection 3(1) provides, in part:
The objects of this Act are to:
…
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and
(h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability;
…
The objects are to be achieved by “adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability.”[11] In giving effect to the objects, regard is to be had to, among other things, “the need to ensure the financial sustainability” of the Scheme and “the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.”[12]
[11] Paragraph 3(2)(b) of the Act.
[12] Subsection 3(3) of the Act.
General principles guiding action under the Act
The determination of the reasonable and necessary supports to be funded under the Scheme is a vitally important function of the Agency. Section 4 provides a set of principles to guide decision-making in respect of this and other functions under the Act.
The following principles are of particular relevance in making decisions as to reasonable and necessary supports:
(1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
…
(3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
…
(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
…
(8) People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.
(9) People with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.
…
(11) Reasonable and necessary supports for people with disability should:
(a) support people with disability to pursue their goals and maximise their independence; and
(b) support people with disability to live independently and to be included in the community as fully participating citizens; and
(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
…
(14) People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme.
(15) Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.
…
Subsection 4(17) further references the need to ensure the financial sustainability of the Scheme.
Although the phrase “reasonable and necessary supports” is not defined in the Act, its meaning can be determined with the assistance of the provisions referred to above. As the Federal Court said in McGarrigle v National Disability Insurance Agency:
Section 13 expressly indicates that a “support” might be a service, or it might be an activity. In my opinion, although s 14 (which deals with funding by the Agency of others to assist the participant rather than the Agency assisting the participant directly) is expressed purposively, its subject matter is also “support” - whether by way of services of activities or any other matter that assists a person with disability in a way that is consistent with the general principles set out in s 4. The word “support” must be given a broad construction in this context, and there is no need for the purposes of this proceeding to seek to give it any comprehensive meaning. Rather, the point to be made is that it is a practical description of the means by which a person with disability is assisted. It is not intended, in my opinion, to encompass funding, especially because what s 14 contemplates is that the Agency will “fund” a support. The Agency cannot “fund” funding.
…
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.[13]
[13] [2017] FCA 308 at [88] and [91].
Functions of the Agency
Section 118 of the Act outlines the functions of the Agency, which include supporting the independence, and social and economic participation, of people with disability, enabling them to exercise choice and control in the delivery of their supports, and ensuring that their preferences are respected and given appropriate priority. This section also provides that the Agency is to promote the provision of high quality and innovative supports which maximise independent lifestyles and inclusion in the community of people with disability.
By paragraph 118(1)(b), the Agency has a further function of managing the financial sustainability of the Scheme.
Principles relating to the participation of people with disability
As part of Chapter 3 - Participants and their plans - subsections 17A(1) and (3) provide:
(1) People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.
…
(3) The National Disability Insurance Scheme is to:
(a) respect the interests of people with disability in exercising choice and control about matters that affect them; and
(b) enable people with disability to make decisions that will affect their lives, to the extent of their capacity; and
(c) support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability.
Matters which must be taken into account in deciding whether or not to approve a statement of supports
Subsection 33(5) provides:
(5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a) have regard to the participant's statement of goals and aspirations; and
(b) have regard to relevant assessments conducted in relation to the participant; and
(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant.
Matters of which the decision-maker must be satisfied in relation to the funding or provision of supports
Subsection 34(1) provides:
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
It is to be noted that all of these conditions must be satisfied in relation to each support.
In McGarrigle v National Disability Insurance Agency the Federal Court said:
Therefore, what is entered in a plan as a support becomes a determinative factor in the administration of the scheme. As the respondent submitted, by s 33(3), supports may be generally described or may be specifically identified. Either way, the function being performed on review by the Tribunal is to approve, vary of modify the supports as set out in a participant plan. In performing that function, the Tribunal must have regard to the matters set out in s 33(5), and form its satisfaction in accordance with s 34.[14]
[14] [2017] FCA 308 at [85].
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Sections 35 and 209 of the Act provide for the making of rules in connection with the funding or provision of reasonable and necessary, as well as general, supports. I will refer to these rules as the “Supports Rules”. As a Legislative Instrument, the Supports Rules bind the Tribunal in making decisions under the Act.
Part 3 of the Supports Rules provides, in part:
Value for money
3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d) for supports that involve the provision of equipment or modifications: (i) the comparative cost of purchasing or leasing the equipment or modifications; and (ii) whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
Effective and beneficial and current good practice
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
Part 5 of the Supports Rules sets out general criteria for supports and supports that will not be funded or provided:
General criteria for supports
5.1 A support will not be provided or funded under the NDIS if:
(a) it is likely to cause harm to the participant or pose a risk to others; or
(b) it is not related to the participant’s disability; or
(c) it duplicates other supports delivered under alternative funding through the NDIS; or
(d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b) costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
Supports that will not be funded or provided
5.3 The following supports will not be provided or funded under the NDIS:
(a) a support the provision of which would be contrary to:
(i) a law of the Commonwealth; or
(ii) a law of the State or Territory in which the support would be provided;
(b) a support that consists of income replacement.
In its judgement in McGarrigle v National Disability Insurance Agency, the Federal Court said, in part:
[The rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports… It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.[15]
[15] [2017] FCA 308 at [43].
D: THE ISSUE
The following issue arises for determination.
(1)Is the transport of Ms Chau to and from the Leisure Centre three times per week a reasonable and necessary support which should be funded under the Act?
E: EVIDENCE
Ms Chau
Ms Chau said that since the COVID-19 pandemic began, she usually engaged taxis on the following weekly basis:
·three days per week to and from the Leisure Centre;
·one day per week (usually Monday) to and from a club.
Once per week (usually Wednesday) Ms Chau’s support person drives her to and from the gym. While Ms Chau is at the gym the support person does grocery shopping for her.[16]
[16] Transcript, 5 February 2021 at 25-26.
Mr Chau, Ms Chau’s brother
Mr Chau provided a statement dated 2 February 2021[17] and gave evidence at the hearing.
[17] Exhibit A1 at 49.
Mr Chau cares for Ms Chau and is in receipt of a carer’s pension for this work.
Mr Chau is of the opinion that Ms Chau needs to use taxis to travel to and from the Leisure Centre as she would need to cross busy and dangerous roads if she was to travel by public transport. The facilities on a large public bus make it more likely that Ms Chau would fall when compared to a smaller bus, such as the courtesy bus provided by a club.
Mr Chau often accompanies Ms Chau to the Leisure Centre to assist her should she experience any difficulty. However at times she attends the centre and other venues alone when Mr Chau is otherwise occupied.
Since Ms Chau has been attending sessions at the Leisure Centre, Mr Chau has observed an improvement in her functioning and general well-being. In his opinion, Ms Chau is now able to care for herself at the Centre.
Ms Chau usually attends the Leisure Centre for two supervised and two independent sessions per week.[18] A taxi fare from Ms Chau’s home to the centre and return is $26.00.
[18] Transcript, 5 February 2021 at 39.
Sometimes when Ms Chau attends a club she socialises with friends and family. Prior to the COVID-19 pandemic she regularly attended three different clubs.[19] In a Participant Statement for a plan review submitted to the agency on 20 June 2018, Mr Chau (as Ms Chau’s representative) indicated that she attended a club or clubs on every day of the week, on more than one occasion each day.[20] During the pandemic Ms Chau has attended clubs up to five times per month.[21]
Report dated 18 January 2021 by Mr Talib, Director of Hayee Group Services
[19] Transcript, 5 February 2021 at 47.
[20] Exhibit R1 at 134.
[21] Transcript, 5 February 2021 at 49.
Hayee Group Services provide disability support workers to assist Ms Chau under the Scheme. Services are usually provided two to three days per week.
Mr Talib reported, in part:
Usually, Selina goes out 2-3 days a week which are Monday, Wednesday and one other day.
Monday activities: McDonald sometimes, going to St John Bowling Club, Mounties, Cleaning and household duties such as meal preparation.
Wednesday activities: Mekong Cabra-Vale Diggers Club, St John Bowling Club to eat and drink, activities at Mounties, Shopping at Woolworth and/or Aldi and/or McDonald, Cleaning and household duties
Other one day’s activities: Transportation to physiotherapy, psychologist, doctor appointment, Occupational Therapist and dentist appointment when Selina needed.[22]
[22] Exhibit A1 at 42.1.
Mr Pacuka, Exercise Physiologist
Mr Pacuka provided reports dated 1 July 2020,[23] 29 October 2020[24] and 22 December 2020[25] and gave evidence at the hearing.
[23] Exhibit A1 at 19.
[24] Exhibit A1 at 33.
[25] Exhibit A1 at 42.
Mr Pacuka has been treating Ms Chau since about July 2020 during two half-hour sessions per week at the Leisure Centre. On 1 July 2020 he reported, in part:
Selina’s medium and long-term goals are to be able to access health care services on her own without having to rely on a support worker to be present constantly. This would involve accessing taxi services to and from hydrotherapy central on Saturdays, Sundays and two more days during the week (specific days dependent on availability).
I would recommend that she is to be transported by taxi service as it wil be hard for her to travel via public transport and relatively unsafe to do so given her physical restrictions. These physical restrictions particularly her balance and lower speed of movement would pose a barrier to her accessing public transport on her own. Selina wants to be independent as much as possible. Allowing her access to taxi service will provide Selina with a sense of independence and self-reliance.[26]
[26] Exhibit A1 at 19.
In his report of 22 December 2020, Mr Pacuka recommended:
Continuation of exercise rehabilitation program 2 days per week (30 min sessions)
Encouraging additional independent sessions of hydrotherapy and land based treatment 5 days per week
Selina will need to ensure that he (sic) is to undergo exercise program as an ongoing part of her everyday life and lifestyle changes.[27]
Report dated 14 July 2020 by Ms Bedon, Clinical Psychologist[28]
[27] Exhibit A1 at 43.
[28] Exhibit A1 at 20.
Ms Bedon has been treating Ms Chau for symptoms of trauma since October 2019.
Ms Bedon supported Ms Chau’s request for transport to and from the Leisure Centre on three days per week. Ms Bedon reported, in part:
Ms Chau finds it beneficial to engage in hydrotherapy; I advised her I would prefer if she were to engage in some form of activity that involves interaction with other people, to develop social skills as well as improve mobility.
…
As you are aware Ms Chau has a history of gambling and this lead to her being separated from the Casino. This is one of the reasons I believe transport facility for Ms Chau to specifically go to the leisure centre would be beneficial, as she will be able to engage in social and recreational activities, without being exposed to gambling. This will help her to improve her ability to interact with other people, socialise and feel included.
Ms Chau has compromised to use the taxi only and exclusively for transport to the swimming pool. I have explained to her I am not prepared to support in any way facility for gambling activities – taxi services would be for the sole purpose of hydrotherapy and program to continue and relapse prevention from the mental illness.[29]
Report dated 13 May 2019 by Ms Chan, Occupational Therapist[30]
[29] Exhibit A1 at 20.
[30] Exhibit A1 at 16.
Ms Chan assessed Ms Chau on 13 May 2019 at the request of Mr Chau to assess her ability to use public transport. The assessment was conducted at Ms Chau’s home.
Ms Chan reported that Ms Chau required supervision mobilizing indoors with a four wheeled walker. She also reported that Ms Chau goes to local clubs every day for social and recreational activities with her brother. She recommended that Ms Chau “will benefit from door to door transport services (such as taxi or community transport) to assist her accessing community with her brother.” [31]
Report dated 18 January 2021 by Ms Vuong, Physiotherapist[32]
[31] Exhibit A1 at 18.
[32] Exhibit A1 at 44.
Ms Vuong has been treating Ms Chau since October 2019.
Ms Vuong reported, in part:
The physiotherapy sessions to date focus on formulating and reviewing an exercise program that is specific to Selina’s function and goals. From a safety perspective, the goal is to improve balance and decrease Selina’s falls risk. The program is revised at every session, and all parties are of the understanding that the bulk of that work is to be done at home. Selina reports being compliant with the exercise prescription, and the log book reflects that.
Further physiotherapy sessions are recommended to improve Selina’s function. Sessions are recommended for 1xper fortnight. I support Selina’s request for continued access to gym/hydrotherapy facilities. She has been advised to discuss with the exercise physiologist regarding the number of supervised sessions per week that is considered necessary.[33]
Report dated 3 January 2020 by Ms Fogarty, Occupational Therapist[34]
[33] Exhibit A1 at 45.
[34] Exhibit R2.
At the request of the Agency, Ms Fogarty assessed Ms Chan at her home in November 2019.
In her report, Ms Fogarty stated, in part:
Ms Chau’s recreational and social activities heavily centred upon the local clubs to which she belongs. Via Ms Chau and her brother’s membership to Mounties Club at Mount Pritchard, they gain access to 6 other local clubs, all of which have various promotions running each week for club members. They usually attend 1 or more clubs each day in order to enter the membership draws, which offer the opportunity for cash prizes. They reported their choice of clubs each day is guided by what promotions are on offer. They advised they do not consume alcohol at the clubs but enjoy the complimentary tea, soft drinks and free snacks. They outlined a somewhat complicated routine involving the support worker transporting them between up to 3 clubs per night, enabling them to swipe their membership cards and to time their attendance according to the various membership draws.[35]
[35] At 5.
………………..
Observed to walk safely and independently for approximately 120 meters outdoors on level ground, without walking aid, taking extra time. She reported she used to use a walking frame for outdoor ambulation but does not need to anymore. She reports sometimes using a walking frame indoors.[36]
[36] At 18.
………………..
Currently, to access the community for exercise, social and recreational purposes, Ms Chau:
·Uses taxis to access Cabravale Leisure Centre at a reported cost of $30 each way as they “drop by” a hot bread shop and a restaurant enroute to buy takeaway food. It is noted if they travelled directly between the leisure centre and their home, the taxi fare is estimated at between $7.59 - $10.6212.
·Catches the Mounties Club courtesy bus13, which provides a door-to-door service for members within a 6km radius from Mounties and 5km from Triglav, Mekong Bowling Club and Club Italia. Ms Chau resides within the specified courtesy bus service area.
·Is transported by her support worker to medical appointments and the shops and driven between the different clubs to which Ms Chau belongs.[37]
………………..
The use of the allocated support worker transport for frequent night-time club access is resulting in this service not being used to access therapeutic activities such as hydrotherapy and Ms Chau instead using taxis for this.[38] [Emphasis added].
Ms Fogarty recommended ongoing provision of support worker assistance with transport/community access. She expressed the opinion that the current level of assistance appeared to be sufficient for Ms Chau’s needs.[39]
[37] At 24.
[38] At 30.
[39] At 45.
F: REASONING
Issue: Is the transport of Ms Chau to and from the Leisure Centre three times per week a reasonable and necessary support which should be funded under the Act?
Based on the evidence of Mr Pacuka, Ms Bedon and Ms Vuong, I am satisfied on the balance of probabilities that access to treatment in a hydrotherapy pool and at a gym benefits Ms Chau in her rehabilitation from the stroke she suffered in 2016.
The Agency argues that Ms Chau has adequate support in funding already in her plan to enable her to attend the Leisure Centre three times per week. I accept this argument.
The evidence of Ms Chau and Mr Chau as to the frequency of Ms Chau’s attendances at various clubs for the purpose of her taking part in free draws to win cash, is unclear. However on the basis of their evidence I am satisfied that Ms Chau does not attend clubs as frequently as she did prior to March 2020. At about that time the effects of the COVID-19 pandemic worsened and the clubs ceased to provide, or at least curtailed, the provision of free bus services to their premises.
On the basis of Ms Chau’s evidence I am satisfied that it is her practice to attend clubs by a combination of taxis, utilising the services of her support worker and travelling in the buses provided by the clubs.
The evidence of Mr Talib, the Director of the organisation providing disability support workers to assist Ms Chau was unchallenged. Based on that evidence, I am satisfied that as at 18 January 2021 and leading up to that date, Ms Chau was usually using support workers’ services as follows:
oto attend two clubs on Mondays; and
oto attend three clubs on Wednesdays; and
the use of support workers in this way was in a period well after the start of the pandemic in Australia.
I also accept the evidence of Ms Fogarty that in January 2020 Ms Chau was using support workers to provide “frequent night-time club access” rather than for access to therapeutic services such as hydrotherapy and instead using taxis for the latter.
I take into account Ms Fogarty’s opinion that the level of assistance for Ms Chau with transport/community access appeared to be sufficient for her needs in January 2020. As Ms Chau said that her community access has been restricted by the pandemic, I am satisfied that this continues to be the situation.
I now turn to consider the provisions of the Act.
Ms Chau should be supported to receive supports which are both “reasonable” and “necessary”. I accept that, at present, support to enable Ms Chau to attend the Leisure Centre is necessary. I am not satisfied that the provision of additional support for this activity is reasonable, in view of the funding already provided.
Sections 33 and 34: Matters to be taken into account
In deciding to not approve the support requested, I must take into account the factors referred to in subsections 33(5) and 34(1) of the Act, set out in paragraphs 24 and 25 of these reasons.
There is nothing in Ms Chau’s statement of goals and aspirations which indicates that the additional support should be provided in addition to that already provided. Taking into account the use Ms Chau has made in the past of the supports which she could have utilised to attend the Leisure Centre three times per week, I am not satisfied that the support requested would assist her in achieving her goals and aspirations.
The provision of additional support could facilitate Ms Chau’s social and economic participation by allowing her to spend additional time outside her home. However, there is insufficient evidence to enable me to determine the extent to which she is utilising the supports already available to her, given her evidence that her social engagement has been limited by the pandemic.
I am satisfied that the support requested does not represent value for money. Ms Chau proposes to use the requested support for transport to and from the Leisure Centre. This transport can be provided by supports already in place. Ms Chau is using supports already available to her to access clubs to participate in free draws for cash. I am satisfied that this is the principal reason for her visits to several clubs on a regular basis, even though Ms Chau may meet family members at times during these visits. This is not an appropriate use of the Scheme’s resources and does not represent value for money as required by paragraph 34(1)(c).
For the reasons stated in the preceding three paragraphs the support requested by Ms Chau is not to be funded under the Act.
In addition, for the reasons already stated, I am satisfied that the funding sought duplicates other supports being delivered to Ms Chau through the Scheme and therefore is not to be funded in accordance with the General criteria for supports set out in rule 5.1(c) of the Supports Rules set out in paragraph 30 of these reasons. In reaching this conclusion I take in to account the opinion of Ms Fogarty to which I have referred.
I have considered the remaining requirements of subsections 33(5) of the Act and I am satisfied they are not relevant in this application.
G: CONCLUSION
The reviewable decision, being the decision made 23 November 2018, refusing Ms Chau’s request for additional funding for transport, will be affirmed.
I certify that the preceding 71 (seventy -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
.............................[SGD]...........................................
Associate
Dated: 30 June 2021
Date(s) of hearing: 5 February 2021 Advocate for the Applicant: A Craig, Intellectual Disability Rights Service Inc. Counsel for the Respondent: J Sproule Solicitors for the Respondent: A McGregor, National Disability Insurance Agency
Key Legal Topics
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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