Clixby and National Disability Insurance Agency
[2024] AATA 2669
•30 July 2024
Clixby and National Disability Insurance Agency [2024] AATA 2669 (30 July 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/10466
Re:Jessica Clixby
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal: The Honourable Pru Goward AO, Senior Member
Date:30 July 2024
Place:Sydney
Pursuant to section 43(1)(a) of the Administrative Appeals Act 1975 (Cth), the Tribunal affirms the decision under review.
................[SGD]........................................................
The Hon. Pru Goward, Senior Member
Catchwords
NATIONAL DISABLITY INSURANCE SCHEME – review of supports in plan – epilepsy – Supported Disability Accommodation (SDA) – nursing care – probative evidence – prescription medication – reasonable and necessary support – medical advice – veracity of evidence – midazolam – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020
Cases
Lougher and National Disability Insurance Agency [2024] AATA 1057
Woolf and National Disability Insurance Agency [2023] AATA 1312
ZNDV and National Disability Insurance Agency [2014] AATA 921Secondary Materials
Operational Guidelines National Disability Insurance Scheme (Web Page, 30 October 2023) <REASONS FOR DECISION
THE HONOURABLE PRU GOWARD AO, SENIOR MEMBER
INTRODUCTION
The Applicant, Jessica Clixby, is a thirty five year old woman with cerebral palsy, visual impairments, hemiplegia, an intellectual disability, Williams syndrome, hydrocephalus and epilepsy. On the basis of these conditions and Kabuki syndrome, the Applicant became a participant of the National Disability Insurance Scheme (the Scheme) on 8 September 2016.
The Applicant sought review by the Administrative Appeals Tribunal of a decision of a delegate of the CEO of the Respondent of 2 December 2022 (the decision under review). This had affirmed an earlier decision in relation to the Applicant’s Statement of Participant Supports (SOPS), included in her plan of 7 October 2022.
That plan included a SOPS made pursuant to section 33(2) of the National Disability Insurance SchemeAct 2013 (Cth) (the Act), and provided total funded supports of $368,432.23 comprised of:
(a)Core supports of $281,043.13;
(b)Transport funding of $1,784.00;
(c)Improved Life Choices (CB Choice and Control) supports of $1,485.75;
(d)Improved Daily Living (CB Daily Activity) supports of $13,935.62 (including 35 hours for occupational therapist, including assessment for assistive technology, 11 hours for speech pathology (for review of mealtime management plan), 22 hours for physiotherapy and six hours for a continence assessment);
(e)Improved Relationships (CB Relationships) supports of $9,842.44 (including 40 hours of specialist behaviour intervention support and 20 hours of behaviour management plan and training in behaviour management strategies);
(f)Support Coordination of $23,059.60;
(g)Assistive Technology of $18,000.00 (rental cost for a power chair whilst waiting for new equipment and funding for electric bed and recliner pending trail and completion of assessment and quote, as well as repairs and maintenance of existing equipment); and
(h)Specialist Disability Accommodation (SDA) up to $51,651.47 per year (high physical support, apartment, two bedrooms, two residents, NSW – Sydney, Blacktown).
On 7 October 2022, the Applicant requested an internal review of her SOPS pursuant to s100 of the Act.
On 2 December 2022, a delegate of the CEO of the Respondent made a decision confirming the original decision pursuant to s100(6)(a) of the Act. Particularly, the following requested supports were found to be not reasonable and necessary having regard to s34(1) of the Act and the Rules:
(a)funding for SDA single occupancy;
(b)to change plan management with all products changed to self-managed within the plan budget; and
(c)increased funding for daily activity supports with 24-hour support worker assistance.
On 20 December 2022, the Applicant lodged an application for review of the decision with the Tribunal.
On 10 February 2023, the Respondent filed a request to issue summons to:
(a)NSW Trustee and Guardian;
(b)Epilepsy Action Australia;
(c)Inspire Health Care; and
(d)Myhealth Blacktown.
On 1 March 2023, the Tribunal made an order pursuant to s40B (1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), giving the parties leave to inspect summonsed material produced from the parties as identified at paragraph 6 (a) to (c) outlined above.
On 15 March 2023, the Tribunal made a further order pursuant to s40B (1) of the AAT Act, giving the parties leave to inspect summonsed material at paragraph 6 (d).
The Applicant objected to the Respondent inspecting the summonsed material.
On 25 May 2023, the parties attended an interlocutory hearing in regard to the summons material. The Tribunal granted leave for the Respondent to inspect documents produced under summons pursuant to s40B(1) of the AAT Act.
On 21 June 2023, the Respondent provided proposed s42D remittal terms to the Applicant as she was due to exhaust her SOPS funds. The proposed s42D remittal terms sought to replenish the applicant’s funding and change her supports to be managed by the Respondent (NDIA-Managed).
On 22 June 2023, the Applicant did not consent to the proposed s42D remittal terms.
On 28 June 2023, a directions hearing was held in relation to the proposed s42D remittal terms. The Applicant was not agreeable to the proposed s42D remittal terms.
On 3 July 2023, without consent of the Applicant, the Tribunal made a decision pursuant to s42D of the AAT Act, which remitted the decision under review for reconsideration.
On 6 July 2023, an interim plan was implemented pursuant to the s42D decision. The interim plan provided the same supports for a period of six months, however, the management of the plan was changed to entirely NDIA-Managed.
The matter was listed for hearing on 25 October 2023 but adjourned during the first day of the hearing, following the Respondent’s contention that the Applicant was under the guardianship of the NSW Public Guardian for relevant matters. The Tribunal instructed the Applicant’s representative to seek written confirmation from the NSW Public Guardian and further materials which would assist the Tribunal, including a seizure log, details about a prescription for Midazolam, the implications of the NSW Guardianship orders and confirmation that the written statement of one of the Applicant’s pending witnesses, Ms Robyn Goodwin, would, after some elaboration, be of probative value.
After several directions hearings attempted to confirm the additional evidence requested and the wishes of the NSW Public Guardian in this matter, the Respondent sought to have the matter dismissed under subsection 42A(5) of the AAT Act. In the alternative, the Respondent sought dismissal under paragraphs 42B(1)(b) or (c) of the Act.
As the Senior Member presiding at that hearing, I decided not to dismiss the Applicant’s request for review of the decision of 2 December 2022 and advised the parties I would provide written reasons in my final decision. Those reasons are provided at a later point in this decision.
Relevant Sections of Legislation and Policy framework
The National Disability Insurance Scheme Act 2013 (Cth) provides a legislative framework for the delivery of the National Disability Insurance Scheme (NDIS), which is intended to ensure NDIS participants receive the supports they need to lead their lives as effectively as possible. The Act has several overarching objectives which are expected to be accounted for by relevant decision makers, including the Tribunal.
Objectives of the Act:
Subsection 3(1) of the Act provides that the objects of the Act include, inter alia:
(a)to provide reasonable and necessary supports, including early intervention supports, for participants … (s3(1)(d));
(b)to enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports (s3(1)(e)); and
(c)to facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability (s3(1)(f)).
Paragraph 3(3)(b) of the Act provides that, in giving effect to the objects of the Act, regard is to be had to, inter alia, the need to ensure the financial sustainability of the NDIS.
NDIS plans
When a person becomes a participant of the NDIS, the CEO of the Respondent must facilitate the preparation of the participant’s plan.[1] Section 33 of the Act relevantly provides:
[1] National Disability Insurance Scheme Act 2013 (Cth) s 32(1) (‘The Act’).
(2) A participant's plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
…
(b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme.
(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.
Reasonable and necessary criteria
The criteria in s34(1) of the Act is central to the question of what may be funded and what may not be funded for participant in the NDIS. Each of the requirements in s34(1) must be met in relation to the claimed supports.[2]
[2] ZNDV and National Disability Insurance Agency [2014] AATA 921 at [18] and [80].
Section 34 of the Act 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.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
Unless the Tribunal is positively satisfied that the criteria have all been met in respect of a disputed support, the Tribunal must not approve that disputed support for inclusion in the Applicant’s SOPS.
The Rules
The Rules have been made for the purposes of s34(2) of the Act. The Tribunal is bound to apply the Rules.[3]
[3] s 33(5)(d) of the Act.
Part 3 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘The Rules’) provides additional guidance for assessing parts of the criteria set out in s34(1) of the Act:
(a)Rule 3.1 relates to assessing whether a support meets the 'value for money' criterion in s34(1)(c) of the Act;
(b)Rules 3.2 and 3.3 relate to assessing whether a support meets the 'effective and beneficial' criterion in s34(1)(d) of the Act;
(c)Rule 3.4 relates to assessing whether a support is not reasonable for the family, carer or other support person criterion in s34(1)(e) of the Act; and
(d)Rules 3.5 to 3.7 relate to assessing whether a supports is appropriately funded or provided through the NDIS, for the purpose of the criterion in s34(1)(f) of the Act.
Part 5 of The Rules sets out general criteria for supports and specifies supports that will not be funded or provided. It provides:
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.
SDA Rules
Parts 1, 2, and 3 of the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth) (SDA Rules) are made for the purposes of ss 33(7), 34(2), 35(1) and 209(2A) of the Act.
Part 2 of the SDA Rules sets out the matters to be determined by the CEO in respect of each eligible participant, including the building type, design category and location of the SDA.
Operational Guidelines
The Respondent has developed operational guidelines to regulate its application of the Act and the Rules. The operational guideline generally relevant to the planning process is the Planning Operational Guideline.
Background
The Applicant currently lives alone in a two-person apartment on the first floor of an apartment block in the western suburbs of Sydney and has no family or other informal support.
The Applicant is wheelchair bound and significantly sight-impaired. She is highly dependent on assistance for many activities of daily living but nevertheless, is a bright and engaged young woman of strong opinions and personality.
Considering her complex array of impairments, it was not always clear whether the Applicant’s at times dysregulated behaviour, both during and outside hearings, was the consequence of those impairments or of personal choices. Suffice it to say, the Applicant’s actions significantly undermined her position and required, eventually, that she be removed from the hearing room.
The Applicant has been under the auspices of the NSW Public Guardian since 2010 with several guardianship orders over that time. Most recently, on 1 November 2023, the New South Wales Civil and Administrative Tribunal, NCAT, ordered that the Applicant be subject to a guardianship order for a period of twelve months from that date.
Despite the guardianship order, counsel assisting the Applicant advised the Tribunal that she was capable of providing instructions and proceeded to represent her on that basis.
The Hearing was held in person on both days to accommodate the needs of the Applicant. The Applicant was represented and after her evidence had been given, was expected to remain silent, relying upon her counsel to represent her.
Issues
The Respondent sought an interlocutory hearing for dismissal of the application on the grounds of impedance to the Tribunal’s objective of reviewing the Applicant’s request and the Applicant’s failure to progress the matter.
On the final day of the hearing the Applicant submitted that there was insufficient evidence of probative value to support the requested supports of (a) and (c) but submitted there was sufficient evidence to demonstrate the need for sole occupancy SDA, high physical support, (b). For completion, the Tribunal notes the following additional supports were originally sought by the Applicant:
(a)24/7 support delivered at a 1:1 ratio of care;
(b)sole occupancy SDA, high physical support; and
(c)the management of her SOPS to be self-managed.
Regarding the request for additional care, the Tribunal notes that although the Applicant’s Statement of Lived Experience identified the need for nursing care, at other times the Applicant referred only to care, or to support workers. The Tribunal accepts that the Applicant was seeking additional support workers at a 1:1 ratio of care, but since the Applicant withdrew this request, considers that the nature of the care is immaterial.
Evidence Relied upon
In making the determination, the Tribunal relied on evidence provided by the parties at the hearing, The substantiative evidence provided in the T-Documents were as follows:
(i)Report of Sadiq Rehmani, Occupational Therapist dated 24 December 2021
(ii)Certificate of Management by the NSW Trustee and Guardian dated 8 July 2010;
(iii)Letter from Jane Burford, Epilepsy Nurse Specialist at Epilepsy Action Australia dated 26 May 2021
(iv)Letter from Debasis Karanjai of Myhealth Blacktown Medical Centre dated 3 June 2021
(v)Letter from Dr Kyle Lloyd, Resident Medical Officer, Neurology dated 9 May 2022
(vi)Adapt Housing, Specialist Disability Accommodation Quote dated 2 August 2022
(vii)NSW Trustee & Guardian, Notice Pursuant to s122(2) of the NSW Trustee and Guardian Act 2009 dated 16 November 2022
In addition to the documents provided to assist the Tribunal, the Applicant also submitted a number of photographs of her living arrangements, notes from medical practitioners and prescriptions for Midazolam and Clobazam (the contents of which were unable to be verified) and various screenshots of equipment such as an oxygen cylinder.
Additionally, in making her case, the Applicant placed reliance on various witnesses. These included:
(a)Ms Jane Burford (A Registered Nurse at Epilepsy Action Australia)
(b)Ms Huda Ibrheem (Applicant’s Support Provider)
(c)Ms Robyn Goodman (The Applicant’ Former Support Person)
(d)Dr A. Zaki
At the final day of hearing the last two abovementioned witnesses (Ms Goodman and Dr Zaki) were due to give evidence. The Applicant’s Representative informed the Tribunal that Dr Zaki would make himself available at the hearing to clarify the medical evidence, but they did not intend to call him as a witness. The Respondent instead attempted to locate Dr Zaki and confirm his availability to give evidence. However, this attempt failed and accordingly, the medical note and prescription for Clobazam allegedly provided by him could not be verified.
In respect of Ms Goodman, the Tribunal was open to hearing evidence from her given her position as the Applicant’s former support person. She had also provided a short letter to the Tribunal in support of the Applicant. Her contact number and availability were provided to the Tribunal ahead of time and in order to accommodate her, the final day of hearing commenced in the late afternoon. Numerous attempts were made to contact Ms Goodman at that time, but all attempts failed. Accordingly, the Tribunal could not clarify or confirm the contents of that letter.
Contentions
(a) Dismissal of the Application
The Respondent contended that the application should be dismissed under ss 42A(5) of the AAT Act because the Applicant failed within a reasonable time to provide the further information requested by the Tribunal on 25 October 2023, 9 November 2023 and 13 March 2023, namely:
(a)A seizure log.
(b)A prescription for Midazolam, identifying the prescribing doctor, dosage and nature of administration.
(c)Further material regarding the NCAT proceedings, the pending guardianship and the implications, if any, for these proceedings.
(d)Photographs showing the oxygen, suctioning and other medical support equipment currently in the Applicant’s home.
The Respondent also contended that the application should have been dismissed under s 42B(1)(b) of the AAT Act, that is, the application has “no reasonable prospect of success” because there is a risk that the NSW Public Guardian, who to date had not responded to any requests to become involved in the matter, may become involved at some later date and disagree with the position taken for the Applicant.
The Applicant contended that there had been evidence provided, and efforts made to reach the New South Wales Civil and Administrative Tribunal, NCAT, noting the difficulties.
The Applicant further contended that the Respondent’s contention that the Orders made by the Tribunal were at risk of frustration turned on a conjecture that the NSW Public Guardian may intervene at a later date to alter the substance of Orders made by the Tribunal. The Applicant contended that the occurrence of any later event does not deprive the Tribunal of its current jurisdiction to hear and determine the Application and that, given the Public Guardian’s disinclination to involvement so far, this, in any event, was unlikely.
(b) Additional supports requested
The Tribunal will address only those contentions relevant to the Applicant’s request for single occupancy SDA, high physical support.
The Respondent contended that there was insufficient verifiable and reliable evidence before the Tribunal to demonstrate how sole occupancy SDA met each of the criteria in s34(1) of the Act, nor to establish why the Applicant could not be appropriately supported in a two-bedroom, two resident, SDA apartment, for which she is currently funded.
The Respondent contended that Mr Rehmani’s evidence should carry minimal weight noting the significant lapse in time since it was prepared, and the recommendation that the applicant be eligible for an SDA apartment in the high physical support category with sole occupancy.
The Respondent further contended that much of the evidence provided “has been doctored” and that any evidence “must be independently verified”; a point also made in the Respondent’s written submissions.
In oral submissions, the Applicant contended there was sufficient evidence to establish that the Applicant should live alone, accommodated in a two-bedroom residence, high physical support, with her extensive equipment housed in the second bedroom. The residence should be a villa or townhouse. Since the Respondent also acknowledged that a villa or townhouse would be “appropriate”, the Tribunal accepts that the nature of the accommodation is not disputed.
Discussion
The Respondent’s Application for Dismissal
The Tribunal now provides brief written reasons for its decision to continue to hear the Application, aligning with reasons given orally at the hearing on 23 February 2024.
“Oh what a tangled web we weave, when first we practice to deceive”[4] describes the situation facing the parties and the Tribunal in considering much of the evidence provided by this applicant. With greater or less sophistication, letters, orders and references appeared to be false or falsified. In several instances there was written confirmation that words had been changed and action considered against the Applicant. Other witnesses declined to appear or otherwise did not corroborate the written evidence provided by the Applicant. Indeed, so extensive and bold were some of those manipulations that the Tribunal, and at least the Respondent, lost confidence in the veracity of any of the documents provided, including medical statements and a prescription for a highly controlled drug, Midazolam. Accordingly, verification was requested. The Tribunal notes the consequences of this deceit became most apparent when the Applicant advised the Tribunal at the resumption of the substantive hearing that two of the three requests in contention would be withdrawn for wont of sufficient probative evidence.
[4] Walter Scott, ‘Marmion: A Tale of Flodden Field’.
However, the Applicant also contended that the materials requested were provided to the extent possible or were being given to the Tribunal as materials arrived. The Applicant sought an extension of time to progressively provide further materials.
The failure of the NCAT to respond to the parties’ requests was a significant constraint on both the Applicant’s counsel and the Tribunal’s ability to determine who should represent the Applicant’s interests. Appreciating the slow rate of response from state government agencies, the Tribunal considered that the delays up until the interlocutory hearing were tolerable but that it had become clear by the time of this hearing that the NSW Guardian would not seek to be involved. I concluded that the Applicant’s best interests would be represented by her counsel, in consultation with her, and that the NSW Guardian’s failure to engage was not the fault of the Applicant, who should not lose her right to have her request for review considered by the Tribunal because of that failure. I note the Applicant has been in guardianship for the entirety of her participation in the NDIS and that this was known to the Respondent.
Regarding the additional evidence sought, I had become acquainted with the Applicant over several months and accepted that she had significant impairments, both physical and cognitive, which would make the collection of these materials difficult for her. Although it was impossible not to ignore her many untruths, I accepted the assurances of her counsel that he too, was now aware of this risk and would ensure that further evidence provided to the Tribunal was verified. I noted that counsel undertook to represent the Applicant only just before the first day of hearing and perhaps had not sufficiently appreciated how complex his client was and the doubtful veracity of some of her evidence. However, counsel understood this well by the end of the first hearing day; there were many surprises for all in attendance. I accepted counsel’s assurances that he would attempt to verify any further evidence relied upon; for example, when discussing the value of the witness Robyn Goodman, who had failed to appear but who might appear on the second hearing day, Counsel advised the Tribunal that:
“first questions to Ms Goodman will be to establish her background and capacity to give an expert account”
and,
“if its [Ms Goodman’s evidence] not critical to this hearing, then I shan’t ask the Tribunal to hear from her”.
On the basis that the Applicant’s counsel had given undertakings to confirm the probative value of the evidence, and that the Applicant, notwithstanding her dishonesty, was entitled to be heard on her substantive requests and to be given every opportunity to present her case as honestly as her counsel could achieve, I decided that the application for review not be dismissed. Further, that the final hearing day would provide every remaining opportunity for the Applicant to make her case.
On this basis, the Respondent’s application that the Applicant’s request for review be dismissed under ss 42A(5) or 42B(1) (b) was refused.
Additional Support Requested
The Applicant acknowledged in closing submissions that there was insufficient evidence of probative value for the Tribunal to decide whether the Applicant could self-manage her funding and receive 24-hour 1:1 care but contended that there was sufficient evidence to support her request for sole occupancy SDA, high physical support, with a second room. The Respondent considered there was little evidence of value to support any of the Applicant’s requested supports. Accordingly, I propose to examine the evidence provided for its veracity, before drawing any conclusions.
Further, since the Applicant’s case for sole occupancy, two bedrooms, was in part made on the basis of her need for additional space to store the equipment necessary to attend to her in the event of a seizure and for one-on-one care at all times, verification of the Applicant’s claimed history of seizures is highly relevant to the Applicant’s case. As the Applicant told the Tribunal in closing submissions:
“[the applicant] requires oxygen and suctioning equipment for epilepsy…there is no controversy regarding the Applicant’s epilepsy, since that was associated with the Applicant’s Kabuki Syndrome, which includes experience of seizures…
The Tribunal can’t exclude the possibility that equipment supports and other medical equipment such as a motorised wheel chair and a hoist…. cannot be reasonably housed in anything other than another room.
The Applicant relied upon the evidence of Mr Sadiq Rehmani, Ms Robyn Goodman, Dr A. Zaki and Ms Huda Ibrheem and provided written submissions from each of them. I shall deal with the evidence of each in turn.
Mr Sadiq Rehmani
While the Respondent contended Mr Rehmani’s evidence was outdated, he did not appear as a witness and his evidence, largely based on the Applicant’s self-reporting, could not be tested by the Tribunal. The Applicant made no reference to Mr Rehmani’s report during proceedings and accordingly, the Tribunal places little weight on it.
Ms Robyn Goodman
While Ms Goodman’s written reference for the Applicant asserted, in florid terms, that she had frequent seizures, Ms Goodman did not appear as a witness, despite undertakings to do so. She provided no explanation for her failure to be available on the second hearing day. The Tribunal had previously required the Applicant to provide a more detailed reference from Ms Goodman, but this was not provided. Accordingly, the Tribunal places no weight on her statement.
Dr. A Zaki
Dr Zaki’s medical report had confirmed the Applicant’s prescription for Midazolam and Clobazam but Dr Zaki, despite the significance of his report to these proceedings, did not give evidence at the hearing. Accordingly, the Dr’s brief report, containing grammatical and other errors of expression, could not be confirmed or tested by the Respondent. In these circumstances, the Tribunal places no weight on the doctor’s report. The Tribunal also notes a Dr Hua’s prescription for Midazolam was provided to the Tribunal, but it appeared to be a photocopy, had been issued after the first hearing day and was not verified.
Ms Huda Ibrheem
Ms Ibrheem told the Tribunal that the Applicant
“has ongoing seizures all the time…l had a meeting with her planner…and she asked me to …start to record the seizures. So we started to report it…”
Ms Ibrheem confidently told the Tribunal that the reporting showed
“she has seizures most of the time”.
When pressed, however, Ms Ibrheem could not describe the seizures and conceded that she had not seen them for herself. She did not know what medications the Applicant took but felt she needed a registered nurse to be with her “because of her complications”. During the hearing, she offered to provide the referenced seizure incident reports to the Tribunal but later advised they were not available and had not been made.
In cross examination, Ms Ibrheem was asked about her written reference to the need for high intensity nursing support for medication administration through her PEG and said:
“she told me the doctor would put her on PEG feeding, so I suspect that happening soon”.
Later she conceded she had been mistaken about the PEG feeding and that her carers had not provided epilepsy support, nor had they been trained to do so for the Applicant.
Overall, I found the evidence of Ms Ibrheem uncertain and unreliable.
The evidence of Ms Jane Burford, an official of Epilepsy Australia, confirmed that her written evidence (a letter of support) appeared to have been changed and that she had not concluded the Applicant had seizures, let alone frequent seizures, based on the Applicant’s very general and vague description of her symptoms over telephone. I found Ms Burford to be a reliable and independent witness and accept her account of her dealings with the Applicant.
Findings
The Tribunal finds there is no verified evidence that the Applicant has multiple daily seizures, or even seizures less frequently. The Tribunal notes the Applicant has claimed seizures for several years but has declined neurological examination. The Westmead Hospital report written by Dr Kyle Lloyd reported the Applicant’s behaviour was inconsistent with seizure activity but conceded it might have been “seizure-like”. The hospital had also failed to establish any neurological cause of the claimed seizures.
The Tribunal notes that for the entirety of the proceedings, the Applicant did not experience a single incident of seizure-like activity and was bright and alert all of the time.
The Tribunal finds the photographs of oxygen equipment and suctioning equipment were unclear and without context. They could not be accepted as evidence that they were used by the Applicant and were in her home for use during seizure episodes or were sufficiently large to require a separate storage room.
The Tribunal finds that there is insufficient, verified evidence that the Applicant requires the extensive equipment identified for management of her seizures because there is insufficient evidence the Applicant suffers from this condition.
On the basis of these findings, the Tribunal concludes the Applicant’s request for an additional bedroom to house her equipment is not the correct and preferrable decision.
The Applicant also contended that she preferred to live alone and that the NDIS Rules, under s 34(1)(c) of the Act, require that a balancing exercise be undertaken, where her desire to live alone and independently, was a benefit which needed to be weighed against the costs of so doing. She said she did not live according to a 24 hour routine and living alone would reflect her “goals and aspirations to enjoy an adult life of privacy and self-determination”.
The Applicant relied upon the cases of Lougher[5] and Woolf,[6] contending that those cases were analogous to the Applicant’s situation, where the balance of benefits to costs for those applicants was clearly in favour of living alone.
[5] and National Disability Insurance Agency [2024] AATA 1057
[6] and National Disability Insurance Agency [2023] AATA 1312.
The Applicant submitted a screen shot of care rates to the Tribunal, but again, without context.
The Respondent contended in closing submissions that the level of detailed and unchallenged evidence about the needs of the applicants made available in both Lougher and Woolf was considerably greater than that available in this case. Accordingly, the benefits of living alone had been well established in these cases, but not for this Applicant.
The Applicant also contended that the care needs arising from her frequent and prolonged daily seizures required her to live alone. For reasons already given, the Tribunal finds there is no evidence of those frequent and prolonged daily seizures.
The Tribunal finds there is insufficient evidence that the benefits to the Applicant of sole occupancy outweigh the costs of providing single residency accommodation. Neither the costs nor the benefits were explored in any great detail by the Applicant; rather the Applicant preferred to rely on her claim of severe epilepsy, which was not, on the balance of the evidence provided, found to be verified.
Based on the extremely limited verifiable evidence available to the Tribunal, the Tribunal concludes that the Applicant’s request for single occupancy SDA is not made out to be the correct and preferable decision. The request for high physical support SDA was not disputed by the Respondent and is accepted by the Tribunal. The Tribunal also notes the Respondent has agreed that a villa or townhouse is appropriate.
DECISION
The Respondent’s decision that the Applicant reside in dual occupancy accommodation, (high physical support) as currently provided for in the Applicant’s plan, is affirmed.
Pursuant to section 43(1)(a) of the Administrative Appeals Act 1975 (Cth), the Tribunal affirms the decision under review.
I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein The Honourable Pru Goward AO, Senior Member
.............................[SGD]...........................................
Associate
Dated: 30 July 2024
Date(s) of hearing: 25 October 2023 & 12 July 2024 Counsel for the Applicant: Mr P Berg, 2Selborne Chambers Solicitors for the Respondent: Mr Z McCaughan, Mills Oakley
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