Cianci and National Disability Insurance Agency

[2023] AATA 1093

Cianci and National Disability Insurance Agency [2023] AATA 1093 (9 May 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/2441

Re:Mr Aaron Cianci

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member D. Connolly

Date:9 May 2023

Place:Sydney

The Tribunal affirms the decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

....................................[SGD]....................................

Senior Member D. Connolly

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – CPAP machine – vaping – sex therapy/sex worker – iPhone – transport – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Drugs, Poisons and Controlled Substances Act 1981 (Vic)
National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

CASES

McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF [2020] FCAFC 79

WRMF and National Disability Insurance Agency [2019] AATA 1771 (8 July 2019)

SECONDARY MATERIALS

National Disability Insurance Agency, Our Guidelines – Would we fund it – Understanding supports – What supports don’t we fund? (Web Page) <

National Disability Insurance Agency, Our Guidelines – Including Specific Types of Supports in Plans Operational Guidelines (Web Page) < align="left">Therapeutic Goods (Poisons Standard - February 2023) Instrument 2023 (Cth)

REASONS FOR DECISION

Senior Member D. Connolly

9 May 2023

BACKGROUND TO REVIEW

1. The Applicant is a 51-year-old man who became a participant of the National Disability Insurance Scheme (the NDIS) on the basis of psychosocial impairments associated with bipolar disorder.[1] He has other medical conditions, including obstructive sleep apnoea (OSA)[2], chronic kidney failure for which he has regular dialysis[3], diabetes mellitus[4], and a tobacco use disorder[5].

   [1] Joint Tender Bundle (JTB), p 215.

   [2] Ibid, p 97.

   [3] Ibid, p 268.

   [4] Ibid, p 243.

   [5] Ibid, p 245.

2. The National Disability Insurance Agency (the Respondent) approved a plan on 27 October 2020 funding supports totalling $56,519.03, which was made up of $41,349.38 for Core Supports, to be used flexibly, and $15,169.65 for Capacity Building Supports.[6]

   [6] Ibid, pp 70, 118-120.

3. The Applicant sought review of this decision, seeking various additional supports. On 30 March 2021 the internal reviewer concluded the original decision was correct.[7]

   [7] Ibid, p 70.

4. On 16 April 2021 the Applicant applied to the Administrative Appeals Tribunal (the Tribunal), pursuant to section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act), for review of the internal reviewer’s decision.[8]

   [8] Ibid, pp 4-5.

   LEGISLATIVE FRAMEWORK

5. A participant’s NDIS plan must include a statement of participant supports, approved in accordance with the NDIS Act, and any rules made under the NDIS Act such as the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports Rules).[9]

   [9] National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) ss 33(2) and (5).

6. In deciding whether to approve a statement of participant supports I must have regard to several factors, including the Applicant’s statement of goals and any relevant assessments conducted in relation to the Applicant.[10] I must also be satisfied the supports are reasonable and necessary.[11]

   [10] NDIS Act, ss. 33(5)(a) and (b).

   [11] Ibid, s. 33(5)(c).

7. Subsection 34(1) of the NDIS Act states, with respect to reasonable and necessary supports, as follows:

   (1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

   (a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;

   (b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;

   (c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

   (d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

   (e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

   (f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

   (i)     as part of a universal service obligation; or

   (ii)    in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

8. Subsection 34(2) provides that the NDIS rules may prescribe methods or criteria to be applied, or matters to which the CEO must have regard, in deciding whether they are satisfied criteria under subsection 34(1) are met in respect of a requested support.

9. The Supports Rules, made pursuant to subsection 35(1) of the NDIS Act, provide further guidance with respect to the assessment of reasonable and necessary supports that will be funded. Paragraph 33(5)(d) requires that the CEO apply any rules made for the purposes of section 35. Pursuant to section 209 of the NDIS Act, the rules are a legislative instrument and are therefore binding on the Tribunal.

10. The Tribunal notes the observations of Mortimer J in McGarrigle at [43] in part as follows:

    The [Supports Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement…some policy decision-making about the nature and extent of supports to be provided or funded...  

11. The relevant Supports Rules in this case are as follows:

    5.1A support will not be provided or funded under the NDIS if:

    (a)it is likely to cause harm to the participant or pose a risk to others; or

    (b)it is not related to the participant’s disability; or

    (c)it duplicates other supports delivered under alternative funding through the NDIS; or

    (d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.

    5.2The 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.

    5.3The 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.

    7.5The NDIS will not be responsible for:

    (a)the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions;

    (b)other activities that aim to improve the health status of Australians, including general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post-acute services), preventive health, care in public and private hospitals and pharmaceuticals or other universal entitlements; or

    (c)funding time-limited, goal-oriented services and therapies:

    (i)     where the predominant purpose is treatment directly related to the person’s health status; or

    (ii)    provided after a recent medical or surgical event, with the aim of improving the person’s functional status, including rehabilitation or post-acute care; or

    (d)palliative care.

    7.6The NDIS will be responsible for supports that are not clinical in nature and that focus on a person’s functional ability, including supports that enable a person with a mental illness or psychiatric condition to undertake activities of daily living and participate in the community and social and economic life.

    7.7The NDIS will not be responsible for:

    (a)supports related to mental health that are clinical in nature, including acute, ambulatory and continuing care, rehabilitation/recovery; or

    (b)early intervention supports related to mental health that are clinical in nature, including supports that are clinical in nature and that are for child and adolescent developmental needs; or

    (c)any residential care where the primary purpose is for inpatient treatment or clinical rehabilitation, or where the services model primarily employs clinical staff; or

    (d)supports relating to a co-morbidity with a psychiatric condition where the co-morbidity is clearly the responsibility of another service system (eg treatment for a drug or alcohol issue).

    CONSIDERATION OF THE EVIDENCE

    Material before the Tribunal

12. I have taken into account all the relevant evidence before me, including the Applicant’s NDIS plan approved on 27 October 2020, reports and correspondence filed by the Applicant, from Dr Robert Smith, his former GP, Dr Yuen Kei Leung, his current GP, Dr Peter Puszet, his former Psychiatrist, Mr Adam Gambling, his Exercise Physiologist, and various documents from the Royal Melbourne Hospital Respiratory and Sleep Medicine clinic (RMH sleep clinic). The Applicant also provided a written statement[12] and gave oral evidence at the hearing on 12 April 2023.

    [12] JTB, p 272.

13. I have also taken into account the consultant forensic psychiatrist report prepared by Associate Professor Andrew Carroll,[13] filed by the Respondent, and his oral evidence provided at the hearing. The Respondent has also provided a statement of facts, issues and contentions[14] which I have considered.

    [13] Ibid, pp 236-251.

    [14] Ibid, pp 214-230.

    The supports sought by the Applicant 

14. At the hearing the Applicant confirmed he is now seeking funding for an APAP machine, vaping equipment and liquid nicotine, the operating costs for an iPhone, transport, sex therapy and a sex worker.[15]

    [15] Transcript of proceedings, 12 April 2023, pp 10-11.

15. The Applicant’s goals are set out in his NDIS plan dated 27 October 2020[16], summarised as follows: to be supported to improve his health and wellbeing; to access the community and build a routine that involves leaving his home; to participate in activities of his choice; to develop strategies to come off his medication; and, to maintain independence to live in his own home. He will achieve these goals by working with supports to build his capacity. Having regard to those goals, I will consider whether each requested support is reasonable and necessary under subsection 34(1) of the NDIS Act.

    [16] JTB, pp 109-121.

    CPAP/APAP machine

16. The Applicant seeks funding for an APAP machine.[17] He has provided medical evidence that he has severe OSA and that he would benefit from ongoing CPAP therapy.[18] He is currently using a CPAP machine, borrowed from the RMH sleep clinic, which is due to be returned in May 2023.[19] At the hearing he explained that he would prefer an APAP machine because it is “an automating CPAP which adjusts the flow of the air blown into your nasal passage based on when and when you’re not in apnoea. And also these devices can record how many times you go into apnoea at night, it detects when you do go into apnoea, it increases the pressure of air down your nose to open up the pathways.”[20]

    [17] Initially he sought funding for a CPAP machine, so the Respondent’s submissions do not refer to an APAP machine. His former GP, Dr Smith, advised that the Applicant was initially prescribed an APAP machine but after review by a respiratory specialist at RMH sleep clinic, CPAP treatment was recommended. For the purposes of this decision I am satisfied these can be considered the same support and CPAP and APAP are used interchangeably.

    [18] JTB, p 97.

    [19] Letter from Dr Benjamin Leaver dated 5 April 2023.

    [20] Transcript of proceedings, 12 April 2023, p 10.

17. The Applicant has submitted that he wants the NDIS to fund the APAP machine because his sleep affects his mood and so is related to his bipolar disorder.[21] He has stated that, with bipolar disorder, he has reduced sleep which affects his moods and makes him more depressed, so on the days he does not sleep well he has low motivation.[22] The machine will mean he sleeps well, is alert the next day and, with reduced anxiety and depression, and he will be able to go about his daily activities, access the community and interact with other people.[23]

    [21] Ibid.

    [22] JTB, p 272.

    [23] Ibid.

18. The Applicant also told the Tribunal that he tried to get a CPAP machine through the general health system, but he had been on the waiting list with Austin Hospital for seven years. He could not recall whether he had followed up during the last three years.[24]

    [24] Transcript of proceedings, 12 April 2023, p 26.

19. The Respondent submitted that the CPAP machine constitutes clinical treatment for a chronic condition, OSA, which is not caused by any mental health or other condition that qualified the Applicant for access to the NDIS.[25] It submitted, accordingly, that it is excluded from funding under the NDIS under Rule 7.5 of the Supports Rules. It submitted that, even if the Applicant could establish that untreated OSA symptoms do or might exacerbate any of his psychiatric conditions, the CPAP machine should not be funded under the NDIS due to the application of Rules 7.6 and 7.7, as funding is limited to non-clinical supports and the CPAP machine constitutes clinical treatment. It submitted that it is not for the NDIS to fill gaps in subsidies that may not be available for clinical treatments for chronic conditions in the general health care system.

    [25] JTB, p 228.

20. The Applicant’s exercise physiologist, Mr Gambling,[26] has opined that the Applicant’s lack of adequate and quality sleep can exacerbate his bipolar disorder symptoms, resulting in more intense and frequent depressive episodes and more frequent and severe manic episodes. Mr Gambling opined that improved sleep would benefit the Applicant’s mental health and reduce any symptoms of his bipolar disorder. I have considered this evidence but, as I raised with the Applicant at the hearing, I am not satisfied an exercise physiologist is qualified to assess the impact of OSA on bipolar disorder. The Applicant’s comment was that Mr Gambling’s view is “common sense”[27]. I am not satisfied that this justifies reliance on Mr Gambling’s opinion as ideas about ‘common sense’ may differ from person to person. That is why Tribunals give more weight to reports by expert witnesses. I am not satisfied that ‘common sense’ qualifies Mr Gambling to assess the relationship between OSA and bipolar disorder.

    [26] Ibid, p 267.

    [27] Transcript of proceedings, 12 April 2023, p 23.

21. Dr Smith has reported that without adequate treatment of his OSA, a condition he has had since 2000, the Applicant suffers lethargy, drowsiness and depressed mood and so he requires CPAP treatment to prevent exacerbation of bipolar disorder.[28] In his view it seems logical that any condition which would aggravate the Applicant’s disability should also be funded by the NDIS.[29] Having regard to the legislative provisions, I do not agree that this is the test I must apply.

    [28] JTB, p 259.

    [29] Ibid, p 260.

22. Dr Leung has stated that a CPAP machine “is a medical necessity for him as not only would uncontrolled OSA be increasing his risk for cardiovascular disease, severe lack of sleep would increase his chance of having a manic/depressive episode relapse”.[30] She assessed the Applicant to be at risk of cardiovascular death.

    [30] JTB, p 270.

23. Dr Pattichis of RMH sleep clinic states that the Applicant would benefit from CPAP therapy but he does not specify the ways in which the Applicant will benefit.[31]

    [31] Ibid, p 97.

24. The Applicant has submitted that his OSA is related to his bipolar disorder. While I accept the Applicant’s OSA may lead to depressed mood, I am not satisfied the condition is caused by the Applicant’s bipolar disorder. I accept Dr Leung’s opinion that the condition may impact on his cardiovascular health as well as increase the risk of exacerbations in his bipolar symptoms. However considered overall I am of the view the Applicant’s OSA is a medical condition which requires clinical treatment, as it impacts on the Applicant’s general health, not just his bipolar disorder. There is no evidence before me to indicate his OSA is a consequence of his bipolar disorder.

25. Rule 5.1(b) of the Supports Rules provides that a support will not be funded if it is not related to the participant’s disability. While I accept the Applicant’s OSA may impact on his bipolar symptoms, along with other things such as his cardiovascular health, I am not satisfied it is related to his disability such that the treatment should be funded under the NDIS. I am of the view funding of the support is prohibited by Rule 5.1(b).

26. In the event that I am wrong about the OSA not being related to the Applicant’s disability, Rule 7.6 of the Supports Rules provides that the NDIS will be responsible for supports that are not clinical in nature and that focus on a person’s functional ability, and Rule 7.7 states the NDIS will not be responsible for supports related to mental health that are clinical in nature. For the following reasons I am of the view that CPAP/APAP treatment for OSA is clinical in nature. The treatment will benefit the Applicant’s overall health and reduce the impact of OSA on his cardiovascular health. It is provided by the RMH sleep clinic as part of its clinical treatment of the condition. The evidence from RMH sleep clinic refers to benefits from CPAP therapy but does not indicate there is a nexus between the Applicant’s OSA and his bipolar symptoms.

27. I note the Applicant’s evidence that the Austin Hospital has informed him he is on a waiting list for a free CPAP machine. While I accept the Applicant is waiting for this treatment, I note paragraph 34(1)(f) of the NDIS Act requires that a support must be most appropriately funded or provided through the NDIS, and is not more appropriately funded or provided through other general systems of service delivery offered as part of a universal service obligation. I am of the view the Austin Hospital’s advice that the Applicant is on a waiting list for a CPAP machine confirms this is a service provided by the health system. I also note the NDIS Operational Guidelines state in summary that the NDIS will not fund a support if it is the responsibility of other service systems to provide (such as the health system).[32] I am of the view the CPAP treatment is clinical in nature and is the responsibility of the health system to provide. Accordingly I am not satisfied paragraph 34(1)(f) of the NDIS Act is met.

    [32] National Disability Insurance Agency, Our Guidelines – Would we fund it – Understanding supports – What supports don’t we fund? (Web Page) < equipment and liquid nicotine

1. The Applicant seeks funding for liquid nicotine and vaping products.[33] He claims his nephrologist surgeon has promised to do a kidney transplant if he vapes instead of smoking.[34] He has not provided medical evidence from the surgeon, whose name he forgets. When asked about the surgeon the Applicant stated “there was no point arguing - wasting a surgeon’s time - if my body isn’t prepared for surgery”.[35] The Applicant also stated in his oral evidence that the surgeon told him he had to lose four inches from his gut before any transplant surgery could be done.[36] He confirmed that both smoking and weight prevent his candidacy for transplant surgery. On the evidence before me I am not satisfied a surgeon has promised to do a kidney transplant if he vapes instead of smoking, particularly given his evidence that he also needs to lose weight before the surgery can be undertaken.

   [33] Transcript of proceedings, 12 April 2023, p 19.

   [34] Ibid, p 11.

   [35] Ibid, p 24.

   [36] Ibid.

2. Associate Professor Carroll has reported that the Applicant is clearly diagnosable with a tobacco use disorder with dependency.[37] He noted the Applicant reported smoking up to 100 cigarettes a day and, at times, vaping, and that he has withdrawal symptoms after the cessation of smoking.[38]

   [37] JTB, p 245.

   [38] Ibid, p 242.

3. Dr Leung has reported that the Applicant, a heavy smoker with high risk of cardiovascular-related death, has tried to stop smoking using nicotine gum, patches and inhalers but failed, possibly because he enjoys the exhalation from cigarettes which can be simulated with vaping.[39]

   [39] Ibid, p 270.

4. Dr Smith stated he does not condone the use of a nicotine vaporiser but noted the Applicant claims it helps him manage his anxiety and mood.[40]

   [40] Ibid, p 260.

5. The Respondent submitted that it is unlawful to sell e-cigarette products containing nicotine in Victoria (where the Applicant resides) except for therapeutic use as an aid in withdrawal for tobacco smoking[41], and that vaping devices are prima facie harmful to health.[42] It submitted that funding of this support is excluded under Rule 5.1(a) of the Supports Rules because it is likely to cause harm to the Applicant, and Rule 5.3(a) because it would be contrary to a law in the jurisdiction.

   [41] See section 12D of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) in conjunction with

   The Therapeutic Goods (Poisons Standard—February 2023) Instrument 2023.

   [42] JTB, pp 229-230.

6. In response, in his oral evidence, the Applicant submitted that the UK government promotes vaping.[43] He drew a comparison with the methadone program for opiate addiction, which is publicly funded.[44] He wants high quality nicotine oil funded as part of nicotine replacement therapy.[45] He indicated that he had vaped on and off in the past 15 years when he was quitting smoking and used it as a withdrawal aid.[46] However he always returned to smoking. He confirmed he does not have a prescription for liquid nicotine but claimed he could get one easily.[47]

   [43] Transcript of proceedings, 12 April 2023, p 11.

   [44] Ibid, p 41.

   [45] Ibid, p 11.

   [46] Ibid, p 23.

   [47] Transcript of proceedings, 12 April 2023, p 24.

7. I have considered whether the vaping equipment sought is related to the Applicant’s disability. While I accept the Applicant might use nicotine to help with anxiety and mood, it has not been prescribed to him for that, or any other, reason. I take into account that his former GP, Dr Smith, did not condone its use. His current GP, Dr Leung, did not recommend funding for this support; she merely explained why the Applicant might prefer it to other nicotine withdrawal aids. I am not satisfied this support is related to the Applicant’s disability. I am satisfied it is sought in connection with his tobacco use disorder. Accordingly, in applying Rule 5.1, I find the support cannot be funded under the NDIS as it is not related to his disability.

8. Also, on the evidence before me, I am not persuaded the support sought will not cause harm to the Applicant. While the Applicant has stated the UK government encourages smokers to vape, I am not satisfied this confirms that vaping is not likely to cause harm to the Applicant. I find persuasive the Victorian Government’s position on the sale of e-cigarette products containing nicotine. It prohibits the sale except for therapeutic use as an aid in withdrawal from tobacco. I am not persuaded the Applicant intends to use vaping equipment and liquid nicotine for withdrawal purposes. His written submission filed in October 2022 states he would like the NDIS to fund liquid nicotine and vaping products as his surgeon promised to do a kidney transplant if he vapes instead of smoking, and that this will reduce or help with anxiety and eventually improve his lifestyle as well as prolong his life.[48] While he now states he wants to stop smoking to work on the plan with the surgeon, he provided no other medical evidence to support this claim. Nor does he have a prescription for liquid nicotine, for withdrawal purposes. Accordingly I have concerns that Rule 5.1(a) is not met.

   [48] JTB, p 273.

9. I also find the support cannot be funded under the NDIS because, in the absence of reliable evidence that the vaping equipment and liquid nicotine are being sought for therapeutic use as an aid in withdrawal from tobacco, the provision of this support would be contrary to the Victorian law and therefore it is prohibited by Rule 5.3.

10. I have also considered whether the requirements of subsection 34(1) of the NDIS Act are met. Having regard to the Applicant’s goals, on the evidence before me, I am not satisfied the support will assist the Applicant to cease smoking or to improve his health and wellbeing. Accordingly I am not satisfied paragraph 34(1)(a) is met. Nor am I satisfied the support will be effective and beneficial, so paragraph 34(1)(d) is not met.

11. I have considered the Applicant’s submission that the methadone program for opiate withdrawal is funded, but funding for tobacco withdrawal is not, and his suggestion that it should be. I do not find this a reason why the NDIS should fund this support. It is for governments to determine health budget expenditure. I note the Respondent’s position that the NDIS will not fund a support if it is the responsibility of other service systems to provide (for example, the health system). I am of the view funding for withdrawal from tobacco use is a decision for Australian governments to make, and if they choose not to fund it, the burden should not fall on the NDIS which, among other things, provides reasonable and necessary supports for participants so that they can pursue their goals, objectives and aspirations. It is not intended to fill gaps in the health system.

12. As I have found funding of vaping equipment and liquid nicotine is prevented by the Supports Rules, and paragraphs 34(1)(a) and (d) are not met, it is not necessary for me to consider whether the remaining requirements of subsection 34(1) of the NDIS Act are met.

    iPhone/Smart phone/Operating costs for an iPhone

13. Originally the Applicant sought funding for an iPhone.[49] In his written submissions the Applicant indicated he needs this support because of telehealth appointments with his doctors and psychiatrist, for e-scripts to be sent to him, to call for help in an emergency as he lives alone and only has support worker assistance during the day, and for navigation during his community access and when attending appointments.[50]

    [49] JTB, p 91.

    [50] Ibid, p 272.

14. The Respondent has submitted that a phone and a data plan are daily living costs incurred by any person, regardless of a disability, and so funding the supports is prevented by Rule 5.1(d).[51] It also submitted that the Tribunal could not be satisfied that it is a cost incurred solely and directly as a consequence of the Applicant’s disability support needs. It was also argued there is no evidence before the Tribunal establishing that an iPhone (as distinct from a more cost-effective product) would meet the Applicant’s needs to make emergency calls and provide basic internet access, and so value for money has not been demonstrated (paragraph 34(1)(c)).

    [51] JTB, p 229.

15. Dr Leung has stated the Applicant needs an iPhone/smartphone to stay connected socially and to access e-scripts and appointment bookings.[52]

    [52] Ibid, p 270.

16. At the hearing the Applicant admitted he has a 5G iPhone so he would “just go for the operating cost of $55 a month for data use on that phone”.[53] He indicated he needs this support for calls, zoom meetings, telehealth, scripts, appointments and navigation in the community. He stated he uses his current phone and plan to access social media and receive scripts. He argued this is a necessary part of his life especially because of his disability.

    [53] Transcript of proceedings, 12 April 2023, p 10.

17. I note the Applicant is already able to use his current phone and plan to receive and make calls, participate in telehealth and zoom meetings, receive scripts, and make appointments. He was silent on whether he can use it to navigate in the community, however there is nothing before me to confirm he cannot do this with his current phone and data plan. 

18. I have considered all the evidence before me and I am not satisfied the Applicant’s request for funding for this support is related to his disability. It is not a cost incurred directly as a consequence of his disability support needs. I am of the view a phone and a data plan are day-to-day living costs incurred by nearly everyone in society. I have taken into account the Applicant’s request to have his data plan funded in the event that he needs to make an emergency call because he lives alone. While I appreciate he might be anxious that this might happen in the future, there is no evidence before me to indicate this circumstance will necessarily arise. I have taken into account the Applicant’s claim that he needs the support to navigate when he is out in the community. I am also of the view that many people, regardless of whether they have a disability, choose to have a phone so they can seek support in an emergency and navigate in the community. I am not satisfied the Applicant seeks this support because it is a cost incurred as a result of his disability. I find the support relates to a day-to-day living cost that is not attributable to his disability support needs. Therefore the support cannot be funded under the NDIS as this is prohibited by Rule 5.1(d).

19. As I have found the funding of this support is prevented by the Supports Rules, it is not necessary for me to consider whether the requirements of subsection 34(1) of the NDIS Act are met.

    Transport costs

20. The Applicant has made various claims regarding transport costs. On 18 November 2021 he stated he needed transport funding as he was unable to drive for 12 hours after taking Valium, because he is not covered by his car insurance during that time.[54] This would help him access the community, for shopping, recreational activities, visits with friends and family, and appointments with his GP and other allied health professionals.[55] He stated he is unable to catch public transport due to anxiety, difficulty walking and climbing stairs, and constraints due to his location. His bipolar medication has resulted in weight gain, mood changes, muscular aches and pain, so he can only walk short distances and has poor balance.[56] He has his own car which support workers can drive but he cannot afford the fuel.[57] He stated he is uncomfortable catching taxis due to his need to smoke. He sought $60.00 per week of transport funding.[58]

    [54] JTB, p 272.

    [55] Ibid, p 261.

    [56] Ibid, p 272.

    [57] Ibid.

    [58] Ibid, p 261.

21. Regarding transport costs, Dr Smith reported that the Applicant is prescribed diazepam (Valium) 5 milligrams to manage anxiety, which he takes at night.[59] Hence he requires transport funding.

    [59] Ibid, p 260.

22. Dr Leung reported that the Applicant suffers anxiety when he goes out, and that he cannot take his dog on public transport and he would prefer to do this.[60] She hoped that he could be funded to assist him to go grocery shopping and stay connected in the community.

    [60] JTB, p 270.

23. In written submissions file in October 2022 the Applicant stated he is not covered for car insurance for 12 hours after taking Valium. Hence he seeks NDIS support to cover that period so he can access the community. He has anxiety when using public transport but cannot use it anyway because of his location.

24. Associate Professor Carroll recorded that the Applicant reported avoiding public transport, not due to anxiety, but because he dislikes waiting and he cannot smoke or take his dog with him.[61]

    [61] Ibid, p 240.

25. At the hearing the Applicant confirmed he seeks $60.00 per week in funding for transport costs, consisting of fuel allowance, maintenance, insurance and running costs for his car.[62] His plan is based on getting out into society and attaining his goals. He does not seek assistance to use public transport, but if there is an emergency he might need a taxi.[63] His cleaner told him he can get $60.00 for transport costs as she has other clients who receive this support.[64] He confirmed he does not have problems with driving[65], he does not use public transport because his nearest bus stop is about one kilometre away[66], and it takes one and a half hours to get to the city from Eltham (where he lives) by public transport and only 30 minutes when he drives.[67] He confirmed he takes Valium at night.[68]

    [62] Transcript of proceedings, 12 April 2023, pp 15, 21.

    [63] Ibid, p 22.

    [64] Ibid, p 27.

    [65] Ibid, p 22.

    [66] Ibid, p 28.

    [67] Ibid, p 31.

    [68] Ibid.

26. The Respondent submitted that the purpose of the NDIS is to increase functional capacity, not to indemnify the financial cost of going out into the community to meet plan goals. It submitted that the transport support the Applicant seeks relates to day-to-day costs. The Applicant has Core Supports of about $40,000.00 which he can use flexibly for daily activities, to participate in community and social activities. The NDIS funding is to increase his functional capacity.

27. The Applicant stated in his oral evidence that the NDIS was reimbursing him for fuel costs up until 1 January 2023.[69] The Respondent told me that the Agency had not approved any funding for fuel costs.[70] I gave the Respondent an opportunity to clarify whether fuel costs had been reimbursed prior to 1 January 2023. However, I explained to the Applicant that, even if it was the case that the Agency was reimbursing him for fuel costs, I am taking a fresh look at the decision and I may not agree that the transport costs he seeks are a reasonable and necessary support.

    [69] Transcript of proceedings, 12 April 2023, p 42.

    [70] Ibid, p 43.

28. On 18 April 2023 the Respondent wrote to the Tribunal and advised that the Applicant’s plan is plan managed, not Agency managed, so expenses incurred are reimbursed through his Plan Manager.[71] His use of his Core Supports budget is flexible, so long as the funding is only used for supports that the Agency has found to be reasonable and necessary and related to his support needs. The Agency would not necessarily have contemporaneous oversight of the nature of these expenses where a participant has engaged a Plan Manager. The Respondent notes that “the fact that a participant, through their Plan Manager, may have used NDIS funding towards a particular expense does not mean that the Agency has made a decision that that expense is a reasonable and necessary support pursuant to the Act.”[72]

    [71] Respondent’s Further Submissions filed on 18 April 2023, p 1.

    [72] Ibid.

29. The Respondent confirmed that the Applicant was reimbursed for various invoices via his plan management service, but it was unclear to the Respondent whether those payments related to fuel.[73] It was confirmed that the Agency has never funded transport for the Applicant although the Applicant, through his Plan Manager, appears to have used plan funds for transport.

    [73] Ibid.

30. In response, the Applicant stated his invoices were for fuel, which were processed and refunded.[74] He believes fuel is a reasonable and necessary support, as the crux of his plan is to get out into society.

    [74] Applicant’s Email to the Tribunal dated 18 April 2023.

31. Having considered the post hearing submissions, I am satisfied that, while the Plan Manager lodged the invoices and fuel costs were in effect reimbursed, the Agency has not approved fuel or transport as a reasonable and necessary support.

32. I accept that one of the Applicant’s goals is to access the community and build a routine that involves leaving his home. However, for the following reasons, I am of the view transport costs are day-to-day living expenses which are not attributable to his disability support needs and so the funding of such a support is prohibited by Rule 5.1(d).

33. In considering this support I take into account the Operational Guidelines on Transport[75] which state in part that transport supports include supports that enable participants to build capacity to independently travel, including through personal transport-related aids and equipment, or training to use public transport. Transport supports may also be approved for participants who are not able to travel independently. On the evidence before me I am satisfied the Applicant is able to travel independently. While he needs to avoid driving for 12 hours after taking Valium, which he takes at night, he drives his own car, and did not provide evidence that he cannot pursue his goals because he cannot drive. He is not seeking funding to, for example, use public transport in that 12-hour window. He is seeking supports to cover the costs of fuel, maintenance, insurance and running costs, which he states he cannot afford.

    [75] National Disability Insurance Agency, Our Guidelines – Including Specific Types of Supports in Plans Operational Guidelines – Transport (Web Page) < >

    The Operational Guidelines also state that transport should only be funded where it is an additional cost incurred solely and directly as a result of a participant’s disability support needs and, where ancillary to another funded support, it is a cost which the participant would not otherwise incur. I am not satisfied the transport supports the Applicant seeks are costs incurred solely and directly as a result of his disability support needs, or ancillary to another funded support. The Applicant’s evidence is that he uses his vehicle for a range of reasons including to go shopping, visit family and friends and attend his GP and health related appointments. These are activities of daily living in which nearly everyone in society participates, regardless of whether they have a disability. Funding of supports is intended to assist a participant pursue their goals, not to meet day-to-day living expenses.

34. I accept the Applicant chooses to drive his own car for a range of reasons, including because he prefers to be able to smoke, his nearest bus stop is about one kilometre away, he wants to take with dog with him, and it is faster for him to drive to the city rather than to catch public transport. However I am not satisfied there are additional transport costs that the Applicant incurs solely and directly as a consequence of his disability support needs. I am of the view his motor vehicle costs are day-to-day living costs that he would incur regardless of his disability. I conclude therefore that the funding he seeks to cover his transport costs is prohibited by Rule 5.1(d) because they are day-to-day living expenses which are not attributable to his disability support needs.

    Sex therapy and a sex worker

35. In March 2021 the Applicant sought funding for a sex therapist, referring to the recent Federal Court ruling.[76] I raised with the Applicant at the hearing that I may find WRMF’s circumstances were different to his. He appeared to agree with this conclusion.

    [76] Presumably the Applicant was referring to the decision in National Disability Insurance Agency and WRMF [2020] FCAFC 79 (WRMF). In WRMF and National Disability Insurance Agency [2019] AATA 1771 (8 July 2019) at [7] the Tribunal stated the circumstances affecting WRMF were very unusual as her disability was associated with Multiple Sclerosis and other physical medical conditions which prevented her finding a partner and obtaining sexual release independently.

1. The Applicant provided a letter from Dr Peter Puszet, his former psychiatrist, dated 3 March 2021, advising the Applicant had sexual dysfunction as a result of his bipolar medication, and recommending a sexual therapist and the services of a sex worker or escort to assist with these issues.[77]

   [77] JTB, p 93.

2. Dr Smith reported on 2 November 2021 that he was unaware of any requirement for sex worker services and could find no mention of it in any of his medical records.[78]

   [78] Ibid, p 260.

3. The Applicant emailed the Agency in November 2021 and stated he had been prescribed Viagra to no avail.[79]

   [79] JTB, p 218.

4. In February 2022 the Applicant requested funding for one session per month with a sex worker.[80] Later in a written submission filed in October 2022 the Applicant stated he suffers sexual dysfunction caused by the medication he takes for bipolar disorder and anxiety.[81]

   [80] Ibid, p 218.

   [81] Ibid, p 272.

5. Dr Leung reported on 4 September 2022 that, with the Applicant’s psychiatric medication, he is likely to suffer certain sexual dysfunction.[82]

   [82] Ibid, p 270.

6. Associate Professor Carroll recorded in July 2022 that the Applicant reported the following.[83] His treating psychiatrist, Dr Puszet, did not adequately monitor for the renal toxicity associated with lithium and ultimately he developed renal failure as a result of the lithium medication he prescribed. He has not seen Dr Puszet for several years but there is a medicolegal claim against Dr Puszet. He currently takes other antipsychotic medication. He suffers end stage chronic renal failure which requires dialysis. He is not on the list for a kidney transplant. His diabetes mellitus is “not really that bad” and he does not take medication for it.

   [83] Ibid, pp 236-251.

7. With respect to sexual functioning the Applicant reported to Associate Professor Carroll that he had “good” sexual functioning for many years when on lithium (which was sometimes supplemented by diazepam). However in recent years he has had problems with sexual functioning. The Applicant reported that, with a change of antipsychotic medication to ziprasidone, which he continues to take, he had an improvement for several months, but his problems have returned. He described a reduction in libido compared to when he was younger. Nevertheless, he would like to have regular sex. He reported achieving a one-off improvement in sexual functioning some time ago when he won $1,000.00 at the casino which he spent on a sex worker, at which time he achieved sexual satisfaction. He now hopes that if he sees a sex worker, he will achieve better sexual functioning. He reported telling his GP about his sexual dysfunction and trying Viagra which he found unhelpful.

8. Associate Professor Carroll noted that the Applicant:

   …suffers from a range of chronic physical health conditions, at least some of which have also had their onset in recent years. In particular he is diagnosable with:

   ·     chronic renal failure (secondary to lithium which had been used to treat his bipolar disorder);

   ·     obstructive sleep apnoea which it appears was adequately treated up until 2015 but is currently untreated;

   ·     tobacco use disorder which has fluctuated over the years but which currently involves very heavy usage ; and

   ·     possible diabetes mellitus (as noted by his GP).

   All of these conditions are known to be potential causes of sexual dysfunction. It is likely therefore that his sexual dysfunction is multifactorial in origin. It is certainly possible that his psychiatric medications, sodium valproate and ziprasidone, both of which are also associated with sexual dysfunction, may also be contributory factors.

   Given that he had no problems with sexual functioning for many years despite suffering with bipolar affective disorder from his early twenties onwards, I could find no evidence that his sexual dysfunction is a direct product of his bipolar affective disorder.

   Rather, it appears that his sexual dysfunction is most likely due to the range of factors noted above…

   I could find no evidence that motivational problems, anxiety problems or other psychological issues were causative of his sexual dysfunction.

   …

   (The Applicant) should be assessed by a urologist with specific expertise in organically-based sexual dysfunction. Disentangling the precise aetiological origins with sexual dysfunction is likely to be challenging and it is certainly possible that there is no readily applicable remedy given the severity and chronicity of his various physical health concerns. The further specialist treatments that may be required, pharmacological or otherwise, should then be guided by that specialist.

   I do not consider his sexual dysfunction to be a psychiatric problem and so detailed advice regarding further treatment and prognosis is beyond my area of expertise.[84]

   [84] JTB, pp 246-247.

9. Associate Professor Carroll addressed targeted questions from the Respondent regarding the Applicant’s medication regime, including whether other medications might have a lower impact on the Applicant’s sexual function. Associate Professor Carroll indicated there are other medications which are noted to have less impact on sexual function but explained that the risks of changing his medication would need to be carefully weighed against the potential benefits.

10. At the hearing Counsel for the Respondent asked the Applicant whether Dr Smith had in fact prescribed Viagra, as the Applicant had claimed, given Dr Smith reported that he was unaware of any sexual dysfunction.[85] The Applicant claimed that he might have asked for Viagra after the date of Dr Smith’s letter. He thought he may not have discussed the issue with him due to embarrassment about requiring the sex worker. It was raised with the Applicant that he had not provided evidence that he had been prescribed Viagra, or any other relevant medication that might assist. Counsel asked whether the Applicant had fabricated the claim because he wants the NDIS to fund a sex worker. The Applicant denied this.

    [85] Transcript of proceedings, 12 April 2023, p 32.

11. The Applicant was asked when he last saw Dr Puszet. He stated Dr Puszet has retired so he has not seen him for a couple of years. He acknowledged that he has a medical negligence claim against Dr Puszet. He was asked by Counsel if he had requested the letter from Dr Puszet, supporting the claim for funding a sex worker, in exchange for dropping the medical negligence claim. The Applicant denied this.

12. The Applicant confirmed he was not referred to a urologist by Dr Smith, his GP. When asked if Dr Puszet referred him to a urologist he indicated he has had “several sexually transmitted disease requests. Both of my kidneys have started to fail...”[86] I raised with the Applicant my concern that it appeared he had not been referred to a urologist about the cause, treatment and prognosis of any sexual dysfunction he may suffer. He indicated he could not comment because he is not a doctor and enquired about the role of a urologist.

    [86] Ibid, p 35.

13. In closing submissions the Respondent submitted that there is no reliable evidence the Applicant has sexual dysfunction, noting he has not consulted a urologist to investigate the underlying cause of any sexual dysfunction.[87] It was submitted that the claim for a sex worker fails because there is no reliable evidence of sexual dysfunction. 

    [87] Ibid, p 39.

14. In his closing submissions the Applicant noted that funding for sex workers has been provided to other to NDIS participants with sexual dysfunction.[88] He linked his medication for his disability with his request.

    [88] Transcript of proceedings, 12 April 2023, p 42.

15. In considering whether sex therapy and/or funding for a sex worker is a reasonable and necessary support, I have taken into account Dr Puszet’s letter supporting the request. I have considered the Respondent’s concern that Dr Puszet may have provided the letter so that the Applicant would withdraw his medical negligence claim. However in the absence of evidence from Dr Puszet I am not willing to accept that this motivated him to provide the letter. I note however that Dr Puszet’s letter is somewhat cursory and does not provide any detail about why he reached his diagnosis that the Applicant’s medication causes sexual dysfunction, given the Applicant’s other diagnoses. Nor does he provide information about any history, treatment or prognosis for the condition.

16. I am concerned that Dr Smith reported in November 2021 that he was not aware of any requirement for sex worker services and could find no mention of it any of his medical records, in the same month that the Applicant claimed to have been prescribed Viagra to no avail. I am not persuaded the Applicant had been prescribed Viagra before Dr Smith wrote his letter in November 2021.

17. I have had regard to Associate Professor Carroll’s evidence that any sexual dysfunction the Applicant suffers is likely to multifactorial in origin. I find this assessment persuasive given the Applicant’s various chronic physical health conditions and his own evidence that he has periods when he has not suffered sexual dysfunction, including while he has been on his current medication. I accept Associate Professor Carroll’s conclusion that the Applicant’s sexual dysfunction is most likely due to the various conditions the Applicant’s suffers and that he could find no evidence that motivational or anxiety problems or that other psychological issues were causative of his sexual dysfunction. 

18. I have taken into account Dr Leung’s opinion that it is likely that, with the Applicant’s medication, he is likely to suffer a certain extent of sexual dysfunction. However for the reasons I have given above about Associate Professor Carroll’s opinion, I am not satisfied on the evidence before me that any sexual dysfunction the Applicant may suffer is the consequence of his medication, as opposed to being multifactorial in origin.

19. I take into account the reference to the Court’s decision in WRMF but I am not persuaded on the evidence before me that the Applicant’s circumstances are in any way similar to those of WRMF.

20. Having regard to all the evidence about the Applicant’s claim to suffer sexual dysfunction, I am not satisfied it is related to his disability. I am of the view that, until such time that the Applicant has consulted a specialist and confirmed that any sexual dysfunction he suffers is related to the medication prescribed as a result of his disability, then Rule 5.1(b) prohibits the support being funded.

21. As I have found funding of this support is prohibited by the Supports Rules it is not necessary for me to consider whether the requirements of subsection 34(1) of the NDIS Act are met.

    CONCLUSION

22. I am not satisfied that any of the additional supports sought by the Applicant are reasonable and necessary supports as the funding of each is prohibited by at least one of the Supports Rules and/or other requirements of subsection 34(1) of the NDIS Act.

23. There is nothing before me to indicate that the supports provided in the Applicant’s plan approved on 27 October 2020 are not reasonable and necessary supports. Accordingly I have concluded the appropriate course of action in this case is to affirm the decision under review.

    DECISION

24. The Tribunal affirms the decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. Connolly

...................................[SGD].....................................

Associate

Dated: 9 May 2023

Date(s) of hearing:	12 April 2023
Counsel for the Respondent:	Mr J Bird
Solicitors for the Respondent:	Mr I Duldig, Clayton Utz