Cofre and National Disability Insurance Agency

[2023] AATA 810

Cofre and National Disability Insurance Agency [2023] AATA 810 (14 April 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2019/7371

Re:Erik Cofre

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member I Thompson

Date:14 April 2023

Place:Adelaide

The decision under review made by the Agency on 24 October 2019 is set aside pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) and in substitution the Tribunal decides:

Funding of up to $110,000 for a housing unit for the Applicant on the land situated at 3 Brooks Circuit Woodcroft 5162 is a reasonable and necessary support which is to be funded under the National Disability Insurance Scheme.

...........[Sgnd].........................................

Member I Thompson

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – disability accommodation requirements – applicant’s impairments and challenging behaviours – reasonable and necessary supports – decision set aside

Legislation

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Supports for Participants) Rules 2013

National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020

Planning, Development and Infrastructure Act (2016) (SA)

Cases

McGarrigle v National Disability Insurance Agency [2017] FCA 308

National Disability Insurance Agency v WRMF [2020] FCAFC 79

Secondary Materials

National Disability Insurance Scheme – Operational Guidelines – Planning

NDIS Operational Guidelines for Individualised Living Options

NDIS Operational Guidelines for Home Modifications

REASONS FOR DECISION

Member I Thompson

14 April 2023

INTRODUCTION

1. The Applicant, Erik Cofre, is a participant in the National Disability Insurance Scheme (“NDIS”). He is 29 years old. He resides at home with his parents.

2. The Respondent, the National Disability Insurance Agency (“the Agency”), administers the NDIS. Mr Cofre had an NDIS plan which commenced on 12 July 2019. A request was made for an internal review of the plan regarding home modifications, assistive technology and increased therapy support.

3. On 24 October 2019, the Agency notified Mr Cofre, by letter, of the result of the internal review. The letter explained the reasons for rejecting his requests for funding for a self-contained, housing unit to be built on his parents’ property and funding for a massage chair. Requests for funding for additional support coordination, allied health services and access to community support were assessed favourably.

4. In the written application to the Tribunal, it was claimed that the Agency’s decision was wrong because an independent unit built on the family property would be the best option for Mr Cofre. This was on the basis that he  has autism spectrum disorder, intellectual impairment, and scoliosis. In conjunction with these underlying conditions and unsuccessfully attempting alternative accommodation in the past, Mr Cofre requires a permanent living arrangement to sustain him into the future with his immediate family close by.

5. The hearing was held in person on 12 and 13 October, 10 November, and 2 December 2022. Mr Cofre was represented by his parents, Carlos and Erika Cofre, and they were supported by a disability advocate, Ms Ballantyne. The Agency was represented by Counsel, Mr d’Assumpcao. The Tribunal heard oral evidence from Mr Cofre’s parents, his brother, a support worker, a psychiatrist, Dr Zarrabi, and a psychologist, Mr Ireland. The Tribunal received a considerable amount of documentary evidence, which included allied health reports and material about the request for accommodation.

   ISSUES

6. As the parties reached an agreement regarding the request for funding for the massage chair, the issue for the Tribunal to determine was whether funding for the independent unit is a reasonable and necessary support in accordance with s 34 of the NDIS Act. During the hearing and in some of the documents, the independent unit was regularly referred to as a “granny flat”.

7. The defining of the issues took a new and additional course prior to the hearing, with a proposal by the Agency, to the Applicant, for consideration of an alternate model of support described as “Individualised Living Options” (“ILO”).

   LEGISLATION

8. The NDIS is established by the National Disability Insurance Scheme Act 2013 (Cth) (“the NDIS Act”), and the Agency administers the NDIS.

9. Section 3 of the NDIS Act sets out the objects, and makes particular reference to the purpose of providing reasonable and necessary supports for participants in the NDIS. Section 4 of the NDIS Act sets out general principles to guide decisions and actions taken under the NDIS Act. In giving effect to those objects, or performing functions and exercising powers under the legislation, regard must be had to the need to ensure the financial sustainability of the NDIS, particularly ss 3(3)(b) and 4(17) of the NDIS Act.

10. It should be noted that not every support that a participant requests will be provided or funded through the NDIS. Before specifying in a statement of participant supports the reasonable and necessary supports that will be funded, the CEO of the Agency must be satisfied of all of the criteria in relation to each support in accordance with s 34(1) of the NDIS Act. If one of the requirements in ss 34(1)(a)-(f) of the NDIS Act is not satisfied, then the particular item is not a reasonable and necessary support. Section 34(1) of the NDIS Act must be read in conformity with the purposes and objects of the NDIS Act.

11. In McGarrigle v National Disability Insurance Agency, [1] the Federal Court described the term “support”, as “a practical description of the means by which a person with disability is assisted”.[2]

    [1] [2017] FCA 308.

    [2] As above, at [88] (Mortimer J).

12. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (“NDIS Support Rules”) deals with the assessment and determination of “reasonable and necessary supports” that will be funded under the NDIS. The NDIS Support Rules form part of the legislation.

13. The National Disability Insurance Scheme – Operational Guidelines – Planning (“the Planning Guideline”)[3] provides information about the preparation and review of a participant’s plan.

    [3] Exhibit 1, p 102.

    CONTENTIONS

14. In Mr Cofre’s Statement of Issues, Facts and Contentions, it was contended that he is limited by his disabilities in in significant ways. He needs independence which includes a long-term housing solution. The most viable solution was identified as an independent unit to be purpose-built and located on his parents’ property. In support of this proposition, it was submitted that the proposed solution is consistent with the goals in his NDIS plan and reflects his need to feel safe in his own home while relying less on his parents for support.

15. It was contended that Mr Cofre needs to live alone as his behavioural issues prevent safe and appropriate sharing of accommodation elsewhere in the community with other residents. The proposed built unit would provide him with secure and permanent arrangements for safe accommodation with his parents close by and the cost of supports significantly reduced. At the hearing, it was submitted that the requested support is reasonable and necessary and meets the requirements of s 34(1) of the NDIS Act. It will assist him to pursue his goals, facilitate his social and economic participation, enhance his independence and development of skills. It was submitted that the requested support is not excluded by application of the NDIS Rules, as they relate to Mr Cofre’s disability.

16. At the hearing, the Applicant’s representation submitted that the requested support is reasonable and necessary and meets the requirements of s 34(1) of the NDIS Act. It will assist him to pursue his goals, facilitate his social and economic participation, and enhance his independence and development of skills.

17. In the Agency’s Statement of Issues, Facts and Contentions, it was submitted that the evidence which was provided on behalf of Mr Cofre was insufficient to support his request. It was further submitted that there was insufficient evidence to establish that the requested support relates to Mr Cofre’s disability. Hence, it would be prevented by NDIS Support Rule 5.1(b), which states that a support will not be provided or funded under the NDIS if it is not related to the participant’s disability.

18. The Agency submitted that the requirements of section 34 of the NDIS Act are not met in relation to reasonable and necessary supports. In particular, it was submitted that the request for housing did not satisfy the requirement that a support must assist a participant to pursue the goals and objectives in the NDIS plan, nor the requirements that a support must represent value for money, while also being effective and beneficial having regard to current good practice.

19. The Agency proposed an alternative course, through a model of support called ILO, which can be accessed through the NDIS in certain cases. The preliminary “explore and design” stage of this model would provide funding for an analysis of alternative forms of accommodation for Mr Cofre, with the aim of designing a support package to support him to live in the way that he chooses. The second stage would involve a recommendation about Mr Cofre’s preferred home and living arrangements and the amount of funding required for this package of support. The expectation was that Mr Cofre might receive a “level 2 package” up to $150,000 per annum.

20. If the ILO proposal was not accepted, the Agency submitted that the Tribunal should affirm the decision under review.

21. In oral submissions at the hearing, Counsel for the Agency contended that Mr Cofre’s support is not a home modification for which the NDIS has responsibility, pursuant to NDIS Support Rule 7.19(b). This is on the basis that it would be a separate structure which is not connected to the house. Further, NDIS Support Rule 7.20(a) states that the NDIS is not responsible for provision of accommodation, including accessible housing.

    NDIS PLAN

22. Mr Cofre’s first NDIS plan[4] commenced on 12 July 2019. This plan included a description of his goals. The short-term goal was to increase his capacity for self-care and rely less on his parents, to better understand his autism spectrum disorder and develop strategies for managing it so that he feels more relaxed and less anxious. The medium or long-term goal was expressed in this way: “to have my own granny flat attached to my parents house so I can have my own space and feel comfortable.” Mr Cofre would achieve this goal by having a place to live independently from his parents without moving to another property, and it was anticipated that his family would assess options for building a granny flat for him. His other medium or long-term goals referred to improving his health and fitness, and social and community inclusion. These goals were repeated in his subsequent plan,[5] which commenced on 24 October 2019, and in his current NDIS plan,[6] which commenced on 12 October 2022.

    [4] Exhibit 1, p 58.

    [5] Exhibit 1, p 68.

    [6] Exhibit 20.

    EVIDENCE

23. The Applicant’s mother, Mrs Cofre, gave detailed evidence. She told the Tribunal about difficulties which her son had throughout his childhood, adolescence and adulthood. He had problems mixing with his peers at school and later, in day options programs and in respite settings. She has spoken with him about options for accommodation and he is aware of the current proposal and supports it.

24. Amongst his various difficulties, Mr Cofre has trouble sleeping and frequently screams at night. He is scared of other people, in particular, children. At regular family gatherings, he separates himself from his young nieces and nephews. He has basic skills in self-care, including dressing himself in the morning and getting himself to bed at night. He is capable of simple meal preparation, confined to making toast, but lacks cooking skills. He is not currently receiving medication, which was previously used to help him with sleeping. His interests include listening to music, swimming, tenpin bowling and going to the movies.

25. Mrs Cofre confirmed that both she and her husband can still manage her son at home, and they both consider that the proposal for separate accommodation on the family property is ideal. It is a viable proposition despite their advancing age. Equally, because of their age there is a need to plan and to make suitable arrangements for their son’s future housing needs. His current accommodation comprises a conversion of the garage, and it is not a long-term solution. His father, who maintains responsibility for household repairs and maintenance, carried out the building work to transform the garage into a bedroom. Occasionally, Mr Cofre has damaged walls and furniture, necessitating repairs by his father.

26. Mrs Cofre said that they are a closely knit family with good relationships among family members. They plan to remain in their current four-bedroom house, which she and her husband jointly own. Mr Cofre’s father gave brief evidence. He supports the proposal for the independent dwelling as this would complement his current routine, which includes providing support to his wife in their support of their son.

27. The Applicant’s older brother, Mr Carlos Cofre, provided a written statement that supported the proposed installation of a semi-detached dwelling next to his parents’ house, located on their property. He confirmed his views in his oral evidence. He has current experience and background in the construction industry. In his statement, he indicated that his family had funded the design, planning, certification and engineering for the proposed dwelling. The site plan lodged with the city of Onkaparinga indicates the proposed dwelling would be unconnected to the existing main dwelling and the existing garage.[7] An earlier iteration of the site plan included a connection to the house in a plan that appeared to be at a conceptual stage. The current plan has full development approval from the city of Onkaparinga; that is, planning consent, building consent and development approval.[8] Planning consent was granted on 26 February 2021, and building consent and development approval for the detached dwelling was granted on 19 November 2021.[9] Planning consent is current for two years and a request for extension can be made upon payment of a small fee.[10] The proposed development is described in the approval as construction of a new granny flat.

    [7] Exhibit 4.

    [8] Exhibit 6.

    [9] Exhibit 6; Exhibit 4.

    [10] Exhibit 6; Oral evidence.

28. A preliminary budget estimate from Atlas Living, dated 13 August 2020, estimated a total cost for construction of $94,211. In evidence, Mr Carlos Cofre estimated that the cost would now be in the region of $100,000-$110,000, in view of increased costs for building and materials. There will be cost variations and scope to engage a builder of their choice, not necessarily Atlas Living.

29. Mr Carlos Cofre described his extended family as “close-knit”. He spoke about the pressure which his parents are subjected to in their care of their son. In his statement, he supported the idea of a semi-detached dwelling next to his parents’ house as an ideal way for their son to develop independence while still being close enough to be supported by his parents. He commented that this living arrangement “would be no different to someone caring for an elderly family member living in a granny flat.” He acknowledged that all other proposals for a housing solution had failed, and with each failure, “Erik has become angry, upset and in some cases violent.”[11]

    [11] Exhibit 3.

30. One of Mr Cofre’s current support workers, Ms Napuri, gave oral evidence through an interpreter in the Spanish language. She has experience in working with special needs children in Chile, particularly those with a diagnosis of autism spectrum disorder. She described the support which she provides for Mr Cofre on Tuesday and Wednesday each week, with some weekend shifts as well. She has provided this support for about four months, predominantly at the family home, with occasional trips into the community. She spoke about the importance of routine for Mr Cofre, his interest in numbers, his ability to recall, and the need to build rapport with him gradually while simultaneously developing techniques in calming him down when he is anxious. His communication, both in Spanish and in English, is sparse. She anticipates continuing to work for him into the future. She is aware of the proposal for a granny flat and she supports the proposal. It would enhance the environment in which support will be given to him. She observed that a transition into this type of accommodation would occur in an environment with which he is familiar. An important component of the support is that it needs to take place with a focus on Mr Cofre and with minimal involvement of his parents, otherwise, he will direct his attention to them.

31. Discussions within the family in 2019 about planning for Mr Cofre’s future accommodation are reflected in two reports, which were prepared by an occupational therapist, Ms Brooks. Her first report[12] was written on 15 April 2019, and the second report[13] was written on 4 July 2019. Ms Brooks noted that Mr Cofre resides with supportive parents in a privately owned home. The single-car garage had been converted into his bedroom. However, he regularly accessed a bedroom and bathroom inside the house. While Mr Cofre’s three older siblings were no longer living in the family home, the family remained close, with strong family values. The siblings regularly spend time together and provide support to the best of their capacity to their parents. Mr Cofre’s mother was acknowledged as the long-term main provider of extensive, informal supports to her son. Ms Brooks observed that Mr Cofre has limited speech and communication skills and requires prompting and support with activities of daily living. His sleep patterns are highly problematic, involving sleepless nights and high levels of anxiety. The focus of support and occupational therapy advice related to building Mr Cofre’s independent living skills, developing independent sleep routines and exploring sensory areas to assist with self-regulation arising out of autism and anxiety. Significantly, the issue of independent living was recorded as requiring: “exploration for a self-contained unit to be built on the side of the home to provide Erik with independence and his own private space. This directly relates to his long-term goals and aspirations ‘to have my own granny flat attached to my parents house so I can have my own space and feel comfortable’.”[14]

    [12] Exhibit 1, p 9.

    [13] Exhibit 1, p 34.

    [14] Exhibit 1 p 9.

32. Ms Brooks confirmed that further investigation and information gathering would be necessary, including liaison with Mr Cofre’s NDIS planner, to discuss accommodation planning, with an emphasis on supporting his independence and providing him with his own space. Those investigations took place, and the results were summarised in Ms Brooks’ second report. She and Mrs Cofre had discussed options for different types of modification to the family home and also other options for supported independent living away from the family home. The discussions about a self-contained unit were noted in this way:[15]

    OT has discussed necessary and reasonable criteria in relation to home modifications and that the guidelines advised NDIS will not assist with building units for clients. Erika reports this was discussed during her planning meeting, where the planner had advised this could be achieved therefore wished to pursue this goal. During a home visit, Erika and 0T called Erik’s LAC office at Noarlunga where we were advised NDIA will not fund a new build but would assist with modification if the family are able to build themselves. Erika advised the family are not in a financial situation to privately fund the build and queried if NDIA would provide a loan to assist with building a granny flat. OT advised this to be out of her scope and would need to be discussed with NDIA directly… OT supports Erik and his family’s goal for him to live in an independent unit or space with regular supports to provide prompting for activities of daily living. OT advised Erika to seek further clarification regarding supports required to build a granny flat to their family home as OT unaware this can be achieved through NDIS. OT recommends continued therapy to assist Erik to build his independent living skills and engagement in tasks to enable him to live in his own space.

    [15] Exhibit 1 p 34.

1. An undated report[16] was written by a support coordinator, Ms Duncis. From the context of the report, it would seem that it relates to the discussions about Mr Cofre’s accommodation and other supports in mid-2019. The report noted that he has strong family support with a need to be connected to more mainstream support to enhance community participation and avoid breakdown of family relationships. Ms Duncis advised that further services and supports would be required, with the potential for assistive technology and home modifications. She wrote that:

   … the NDIA processes have been confusing and challenging. Eric’s mum is becoming more familiar with the NDIS portal and engaging with providers, however there is a need for support with budget flexibility, understanding what different funding can be used for, getting the right supporting documentation and processes for requesting AT, finding providers etc.

   [16] Exhibit 1, p 42.

2. On 16 November 2021, a psychologist, Mr Ireland, wrote a report.[17] In giving evidence in person at the hearing, Mr Ireland explained and expanded upon aspects of his report, specifically in relation to psychometric testing. The results of that testing assisted in determining Mr Cofre’s abbreviated full Scale IQ falling below 45, with a percentile rank below 0.1, and a similarly low performance on perceptual reasoning. Mr Ireland concluded that Mr Cofre’s mental age equivalent scores were below the test’s lowest level of 6 years and 2 months. Mr Ireland assessed a moderate to severe level of intellectual disability, with a behavioural profile consistent with autism spectrum disorder.

   [17] Exhibit 15.

3. Mr Ireland’s findings noted that Mr Cofre has clinically significant problems in the control and regulation of his behaviour, significant difficulty adapting in activities, clinically significant difficulty in problem solving and holding information, with consequential difficulties in undertaking and completing tasks. His communication skills and socialisation skills are particularly impaired, together with a clinically significant level of maladjustment, including some obsessive and strange habits, self-harm and destructive behaviour, repetitive noises and hand movements, odd speech and inordinate fear of ordinary sounds, objects and situations. In relative terms, his daily living skills are poor, but his capacity to learn is not non-existent. Mr Ireland noted that Mr Cofre is highly dependent upon his mother.

4. Mr Ireland commented in his report about the proposal for the granny flat and other options for accommodation and independent living. In relation to other options, Mr Ireland explained in evidence that independent living is a long way off for Mr Cofre. Living with another person will be problematic for him, particularly at this stage; however, a supported accommodation setting might be a realistic option. Mr Ireland emphasised the importance of proper planning for the transition to a more independent form of living. It must not be left for many years, with the risk of it then becoming a crisis-managed operation, rather than a planned and gradual process. In this regard, the age of his parents is an important consideration.

5. Mr Ireland’s observations about the proposed granny flat were quite positive, with concern for the need to be patient and realistic about the adjustments to Mr Cofre’s routines and his ability to adapt to the new environment. The issues which need to be assessed in the granny flat proposal include the need for careful management of the supports to be put in place, the need for Mr Cofre to get used to being in the unit without ready access to his mother, requiring a carefully planned program that involves him spending time alone in the unit, working out the critical times when a support worker will be with him and having someone such as an allied health professional coordinating the planning and implementation. It could be a measure that is less costly than support involving support staff and outlays in a one-on-one, supported living option. Based on his lengthy experience, Mr Ireland wrote that:[18]

   …there are limited ways of managing such impaired and acting out autistic individuals like Mr Cofre.

   [18] As above.

6. On 30 September 2022, Dr Zarrabi, a consultant psychiatrist at the Modbury Hospital with the South Australian Intellectual Disability Health Service, wrote a report,[19] following a consultation with Mr Cofre and his mother. Mr Cofre had attended the psychiatry clinic once before, in February 2022. Dr Zarrabi gave oral evidence by video at the hearing.

   [19] Exhibit 22.

7. Dr Zarrabi’s report acknowledged the established diagnoses of autism and intellectual disability and the presence of challenging behaviours arising out of Mr Cofre’s “limited cognitive capacity, restricted emotional regulation ability, sensory sensitivity, cultural norms and age-related physiological urges and instincts. There are some features suggestive of possible bipolar disorder.” There were no indications of active psychotic symptoms. The report referred to Mr Cofre’s enmeshed relationship with his parents, noting also that his siblings are supportive. With regard to challenging behaviours – which include erratic sleep patterns and creating disturbances at night, and inappropriate or complete lack of perception of social boundaries – it was noted that his physical aggression has been less frequent in the last few months. This may be related to the involvement during that time of two new female carers with a Latin American background who have worked well with him and made considerable progress, as the report noted: “they are able to set limits for him and he listens to them without escalation of behaviour”.

8. In supporting the transition to more independent living, Dr Zarrabi commented that an up-to-date behavioural support plan should be put in place, and he seemed quite optimistic that a measured behavioural strategy, which is consistent and supportive, can lead to behavioural modification with good results. In oral evidence, Dr Zarrabi agreed that Mr Ireland’s recommendations were reasonable and appropriate. As a consultant psychiatrist, he confirmed that his role did not involve him in the formulation and implementation of a transition plan for Mr Cofre’s change of accommodation. His guidance, based on his expertise, would involve consideration of the way in which transition to independent living arrangements could be best facilitated through the implementation of a current positive behavioural support plan, with planning which is integrated and measured.

9. Other documentary evidence confirmed aspects of Mr Cofre’s impairments resulting in his complex and challenging behaviours. A general medical practitioner, Dr Pakos, wrote about Mr Cofre as:

   … a large adult with severe developmental delay, little speech and autism. He is prone to having violent outbursts towards his parents making him very difficult to manage… He can’t be left alone for any periods of time as he becomes agitated and can be quite destructive, irrational and difficult to control. His management is best described as a broad bio-psycho-social plan involving the family, support groups and medical personnel.[20]

   [20] Exhibit 1 p 27.

10. A 12-month behaviour support plan for Mr Cofre was prepared by Ms Ellis on 31 May 2021 for the NDIS Quality and Safeguards Commission.[21] The plan included a summary of Mr Cofre’s challenging behaviours of concern in two broad categories, together with descriptions of the types of serious, inappropriate and dangerous conduct, together with comments about frequency, intensity and triggers. The plan formulated a series of behavioural goals and strategies, while noting that its implementation required involvement of Mr Cofre’s support networks, including clinical oversight by therapists, sharing of information within the support networks, and training of support workers and family members to implement the behaviour support plan.

    [21] Exhibit 5.

11. An occupational therapist, Mr Lai, wrote a detailed report on 12 April 2022,[22] which focused on sensory processing and its impact on Mr Cofre’s behavioural functioning. The report was not directed to the issue about accommodation. However, it included examples of Mr Cofre’s challenging behaviours and the triggers to those concerning behaviours. Those triggers would generally be quite innocuous or non-existent for most people. By contrast, Mr Cofre’s anxiety is heightened by animals, young children, loud noises, and changes in routine, among other apparent stressors. His reactions include confrontational behaviour, withdrawal, and damaging property, including a laptop/DVD player, which has been replaced many times. Mr Lai reported that some maladaptive responses also include Mr Cofre getting fixated on objects or parts of objects, harming himself, using strange or repetitive speech, often eating non-food items, talking about killing himself, getting fixated on a person in a way that is unwanted, and having no response to pain.

    [22] Exhibit 2.

    CONSIDERATION

12. In National Disability Insurance Agency v WRMF, the Full Court of the Federal Court made these comments about reasonable and necessary supports:[23]

    … there is no doubt that the contextual use of the phrase [‘reasonable and necessary supports’] in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies — by reference to the context, objects and guiding principles of the Act and the facts of the case — the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person’s impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.

    [23] [2020] FCAFC 79 at [151].

13. In its Statement of Issues, Facts and Contentions prior to the hearing, the Agency submitted that the requested support for an independent unit does not relate to Mr Cofre’s disability. This submission requires consideration of NDIS Support Rule 5.1(b), which provides that the NDIS will not provide or fund a support if it is not related to the participant’s disability. It was submitted that there is no meaningful evidence to enable the Tribunal to be satisfied that the requested support is related to Mr Cofre’s disability.

14. According to the Agency’s submission, the occupational therapist, Ms Brooks, and the support coordinator, Ms Duncis, do not have the necessary expertise, and are not in a position, to provide opinions about the “intersection between the applicant’s disability and the granny flat.”[24] That submission had some strength in relation to the limited information on this particular issue in Ms Duncis’ report. However, it carried less weight in relation to the evidence available in the two reports written in 2019 by Ms Brooks.

    [24] Respondent's Statement of Issues, Facts and Contentions at [18]-[19].

15. Although the Agency contended prior to the hearing[25] that the evidence does not demonstrate that Mr Cofre’s requested support is relevantly related to his disability, counsel for the Agency did not pursue this submission in closing.

    [25] As above, at [25].

16. The Tribunal has the benefit of oral evidence and reports by Mr Ireland and Dr Zarrabi, which provide important and considered perspectives, by a psychologist and psychiatrist, respectively. Those two analyses, together with the earlier occupational therapy assessments from Ms Brooks, satisfy the Tribunal that the requested support for an independent living unit is related to Mr Cofre’s disability and is not prohibited by NDIS Support Rule 5.1(b).

17. In considering whether funding for the accommodation is a reasonable and necessary support, the Tribunal must have regard to the criteria in s 34(1) of the NDIS Act as further elaborated in the NDIS Support Rules. The criteria in s 34(1) are cumulative so that if a requested support does not meet all the criteria, it will not be a reasonable and necessary support for the purpose of s 34 of the NDIS Act.

    Whether the support will assist the participant to pursue the goals, objectives and aspirations in the participant’s statement of goals and aspirations: s 34(1)(a) of the NDIS Act

18. Mr Cofre’s successive NDIS plans have included a medium or long-term goal which is expressed in these words: “to have my own granny flat attached to my parents house so I can have my own space and feel comfortable.” The successive NDIS plans include provision for core supports, which state that the core support funding can be used to flexibly to assist him with his daily activities, his current disability related needs and “to work towards my goals.”[26] The Agency contended that Mr Cofre’s NDIS plan goal of “having” his own granny flat is not satisfied.[27]

    [26] See, for example, current NDIS plan, Exhibit 20.

    [27] Respondent’s Statement of Issues, Facts and Contentions, paragraph 24.3.

19. The principles relating to preparation, variation, reassessment and replacement of participants’ plans are set out in s 31 of the NDIS Act, which include criteria about the plans being individualised, directed by participants, and taking into account the role of families, carers and others who are significant in the life of the participant. A participant’s plan includes the statement of participant supports which is prepared with the participant and requires approval by the CEO of the Agency.[28] The decision to approve a statement of participant supports requires the CEO of the Agency to have regard to the participant’s statement of goals and aspirations.[29] The Planning Guideline[30] sets out comprehensive detail about the principles relating to plans and the mechanisms for formulating a plan. The planning and assessment conversation is fundamental to the process, which “involves the NDIA conducting participant led discussions based on the participant’s statement of goals and aspirations.” Here, the goal is expressed in specific terms as accommodation attached to the parental home. It is not described as accommodation, or exploring alternative accommodation, elsewhere in the community away from the parental home. As the goal is currently expressed, it reinforced the understanding that Mr Cofre’s parents held, that the on-site granny flat was an achievable goal, subject to meeting criteria about modifications. In Mr Cofre’s Statement of Issues Facts and Contentions, this notion was highlighted:

    In 2020 the Applicant was provided with a statement as to his housing needs by Kylie Duncis support coordinator with Community Living  Project. Ms Duncis stated:

    “I have been providing Support Coordination for Erik since the commencement of his first NDIS plan. Erik’s family had the suggestion given to them by a Senior NDIS planner at the Noarlunga office at Erik’s first planning meeting for a Granny Flat to be built on his parent’s property as a long term housing solution, as such this became a goal in his NDIS plan. Throughout the course of his multiple NDIS plans this has not become a stated item in his plan as it was not approved. Erik’s family appealed this decision as they strongly believe this is the best and perhaps only option for him to secure permanent housing of his own into the future… I have had contact with SDA providers… who will not provide a quote for the supported accommodation without SIL funding in Erik’s plan (they will not provide this information without being paid to do so and only if there is approved funds for this in Erik’s plan…) Erik will need to live alone, he would not be a suitable housemate to share with someone else as he is known to have sleepless nights and be very noisy throughout the night. He has also been known to damage property and would be at risk of his tenancy being terminated if sharing with another person.”

    [28] NDIS Act s 33(2).

    [29] NDIS Act s 33(5)(a).

    [30] Exhibit 1, p 102.

20. Mr Cofre’s parents formed, held and maintained an understanding about the goal and criteria for funding a granny flat which arose out of planning discussions from an early stage. It was their understanding that funding for that type of accommodation could be realised if they provided sufficient evidence in support of the request. The requested support, if it met the various other criteria for funding of supports, would be one which would assist Mr Cofre to pursue his goals, objectives and aspirations.

21. In its Statement of Issues, Facts and Contentions,[31] the Agency outlined its core submissions. The Agency linked its interpretation of Mr Ireland’s report, about the need for a cautious approach, to a proposition that there is insufficient expert evidence in support of the granny flat as a housing solution. In that way, it was submitted that the Tribunal should not be satisfied that the criterion in s 34(1)(a) of the NDIS Act is met. The Tribunal does not accept this submission. The requested support for the granny flat is one which would increase Mr Cofre’s capacity for self-care. It would decrease his reliance on his parents. It would provide him with more autonomy over his environment. It would enable him to focus less on his parents and more on social and community inclusion, with assistance from his support workers. The Tribunal considers that the written and oral evidence from Mr Ireland and Dr Zarrabi provides support for the requirement that the proposed living arrangements will assist Mr Cofre to pursue his goals, objectives and aspirations.

    [31] Paragraph 24.

22. The Tribunal is satisfied that s 34(1)(a) of the NDIS Act is met.

    Whether the support will assist the participant to undertake activities, to facilitate the participant’s social and economic participation: s 34 (1) (b) of the NDIS Act

23. Mr Cofre’s family members pointed out that there are numerous obstacles to his social and economic participation. Mr Ireland’s psychology testing indicated significant deficits in Mr Cofre’s communication and socialisation, together with levels of maladaptive behaviours, including obsessions, strange habits, self-harming and bizarre speech, which are reflected in the psychometric testing results of a moderate to severe level of intellectual disability coupled with autism spectrum disorder. These complications, arising out of his significant impairments, have a considerable, negative impact on his participation in community activities.

24. The Tribunal accepts that it is inherent in the requested support that Mr Cofre would be less reliant on his family and more likely to become more engaged in activities away from his family. The support coordinator, Ms Duncis, had identified the need for Mr Cofre to be more connected with supports during the day, with one of the aims being improved community connections and stimulation.[32] With careful planning that is based on building his independent living skills, the requested support should assist Mr Cofre in undertaking activities that gradually enhance his social and economic participation. The Tribunal is satisfied that the criterion in s 34(1)(b) of the NDIS Act is met.

    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: s 34(1)(c) of the NDIS Act

    [32] Exhibit 1, p 42.

25. The evidence about value for money is not comprehensive. Mr Ireland wrote that his “experience of activities aimed to support people with disabilities into independent living options in community has been that it is not only very expensive but also that it has often been marked by continued adjustment and behavioural difficulties when individuals present with the kind of behavioural issues and autism linked diagnosis like Mr Cofre.”[33]

    [33] Exhibit 15.

26. Rule 3.1 of the NDIS Support Rules sets out matters which must be taken into account:

    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).

1. The evidence does not indicate that comparable supports are available which would achieve the desired outcomes at lower cost or that funding for the support is unlikely to reduce the cost of long-term support. It is not surprising that both the psychiatrist and the psychologist support the notion that the requested support will increase Mr Cofre’s independence, with the aim of enhancing his life stage outcomes. In the general principles guiding actions under the NDIS Act, reasonable and necessary supports for people with disability should include provision to assist them to pursue their goals, maximise their independence, and support them to live independently.[34]

   [34] S 4(11) of the NDIS Act.

2. Specifically, in relation to comparable costs, the support coordinator, Ms Duncis, referred in correspondence[35] to information which she requested from service providers about the costs of accommodation models for Mr Cofre living alone in community housing or renting privately. One of the quotes suggested costs of approximately $565,000 per year.[36] In addition to that significant cost, any tenancy or public or community housing could involve long waiting periods. This evidence is somewhat speculative and is not tested to any useful degree. It refers to a model of housing with projected services and costings for assistance, with self-care activities, projected costings of active overnight shifts, and support for access to community, social and recreational activities. On the other hand, Mr Cofre’s brother’s work has resulted in an approved development proposal for a granny flat, which is likely to cost a sum of around $110,000. In addition to that cost, however, funding for core supports and capacity building supports would be required. There is no evidence about the extent of that funding as it is not the issue which has to be addressed in this review. Accordingly, there is no meaningful comparison to be made between an estimate of $565,000 for housing inclusive of personal supports, and an estimate of $110,000 for housing exclusive of personal supports.

   [35] Exhibit 7.

   [36] As above (quotation).

3. When the Agency determined in its internal review outcome in October 2019 that funding for self-contained accommodation was not reasonable and necessary, the delegate commented that there were other supports that could be put in place. It was suggested that Mr Cofre might explore respite and short-term accommodation services to increase his skills and independence.[37] The evidence before the Tribunal suggests that those possibilities have been variously considered and explored, and that they have failed.

   [37] Exhibit 1, p 22.

4. Prior to this hearing, and in an endeavour made in good faith to suggest a further option, the Agency proposed, in its Statement of Issues, Facts and Contentions on 21 September 2022, that the best way forward for Mr Cofre would be in accordance with the NDIS Operational Guidelines for Individualised Living Options. It provides for three support levels for individualised living options following a process known as exploration and design, in which the NDIS participant and family engages a support provider to assess the options and determine which one is preferred. For Mr Cofre, the current proposal from the Agency is expressed in these terms:[38]

   As a result of the explore and design stage, a recommendation would be made about the Applicant’s preferred home and living arrangement and the package of supports required. A Service Proposal could be made that outlines how the Applicant wants to live and who he wants to support him. At this time, the Applicant would proceed to stage 2 of the ILO funding and a budget is set based on the outcome from the Explore and Design stage. The Respondent expects that the applicant would then receive a level II package (up to $150,000 per year).

   [38] Respondent's Statement of Issues, Facts and Contentions at [27.3].

5. Mr Cofre’s parents do not agree that the Agency’s ILO proposal is suitable, and they maintain their case for the funding for the granny flat. Almost three years have elapsed between the time of the Agency’s internal review decision and the current suggestion for the ILO model. Without making any criticism of anyone regarding the lapse of time, the fact remains that the original decision for NDIS plan approval was made on 12 July 2019, followed by a request for internal review. The ILO guidelines were was published on 21 June 2022, and it notes that there are different types of support, which include supported independent living, specialist disability accommodation, medium-term accommodation, short-term accommodation, home modifications and personal care supports. The ILO guidelines specify three levels of support: support level 1, with funding up to $105,000 per year; support level 2, with funding up to $150,000 per year; and support level 3, with funding up to $230,000 per year. The primary support, at least with level 1 and level 2, involves the NDIS participant sharing a home with a person who provides companionship, a role model and types of direct support.

6. Although it is somewhat speculative, it seems that the processes and information available to Mr Cofre’s parents in 2019 for their son’s accommodation are not the same as, and in some respects are distinctly dissimilar to, processes and information presently available. If the request was being initiated now, for the first time, it is conceivable that the pathways would be different for Mr Cofre’s parents than they seem to have been in 2019. Be that as it may, the significant point for present purposes is that Mr Cofre’s parents do not want to pursue the ILO option. They have not asked the Tribunal to endorse it as the correct or preferable decision in this review. Neither, it seems, is the Agency necessarily seeking such an order. In effect, it is an open offer for an alternative approach and possible solution which has been considered and declined.

7. For clarity, although the per annum ILO funding level 2 funding is up to $150,000 per year, and the requested support is for once-off funding in the vicinity of $100,000 for accommodation, a direct, useful comparison cannot be made between the two types of funding and supports. Again, that is, in part, because the amount of funding that would be required from time to time to support Mr Cofre in the proposed granny flat is not a question to be determined on this review and no evidence has been presented about it.

8. In summary, the question for the Tribunal is whether the proposal for the accommodation structure represents value for money. There is no evidence of comparable accommodation which would achieve the same outcome at a substantially lower cost. The Tribunal is satisfied by the evidence of Mr Ireland, Dr Zarrabi and Mr Cofre’s parents, that the granny flat proposal could lead to a substantial improvement in life stage outcomes for Mr Cofre. The proposal is directed towards increasing his independence, while reducing his reliance upon his parents. In consideration of all the matters specified in NDIS Support Rule 3.1, the evidence about the cost of the requested support is sufficient to satisfy the Tribunal that the requirement about value for money is met.

   Whether the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice: s 34(1)(d) of the NDIS Act

9. The Tribunal considers that the evidence of both Mr Ireland and Dr Zarrabi is guarded about the likely effectiveness of the proposed accommodation in regard to current good practice. While they both support a transition to independent living, the theme in the proposal is potentially more about semi-independent living in close proximity to Mr Cofre’s parents. This leads to a perception that his excessive dependency on family support, particularly from his mother, might not be reduced. In turn, this raises a concern that the concept of the granny flat on the family properly does not address the question about dependency, and rather, tends to avoid it.

10. There is little evidence in this case about current good practice. However, both Mr Ireland and Dr Zarrabi support the plan for Mr Cofre to live more independently, to learn some skills to achieve success in living independently and to reduce his long-standing dependence on his family. Mr Ireland expressed his concern about alternative models of independent living which, in addition to likely higher costs, might also be “hit and miss.”[39] In addition, alternative accommodation models could be very stressful for Mr Cofre, particularly if introduced too late, which can be the case when parents, because of age or health, or both, are no longer able to care for their (adult) child. Both Dr Zarrabi and Mr Ireland were emphatic about the need for careful planning and support for Mr Cofre in the transition to living in the granny flat. It seems clear from the evidence that Mr Cofre’s parents are realistic about the need for that planning and are committed to its implementation.

    [39] Exhibit 15, p 13.

11. As a significant measure towards enhancing Mr Cofre’s independence, the Tribunal finds that the requirement in s 34(1)(d) of the NDIA Act is met.

    Whether 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: s 34(1)(e) of the NDIS Act

12. Section 31 of the NDIS Act sets out the principles relating to an individual’s plan. They reflect the corresponding objects of ss 3 and 4 of the NDIS Act about individualised choice and control. The role of families and the relationship between people with disability and their families is to be recognised and respected.[40] Section 31(ca) includes a principle about a participant’s NDIS plan, which requires recognition and respect, where relevant, of the relationship between participants and their families and carers. Where appropriate and where there is agreement, the principles relating to formulation of a participant’s plan should, so far as reasonably practicable, allow for the strengthening of the capacity of families and carers to support the participant in adult life.[41]

    [40] See, for examples, ss 4(12) and (12A) of the NDIS Act.

    [41] S 31(da) of the NDIS Act.

13. In accordance with Rule 3.4 of the NDIS Support Rules, the Tribunal has considered the matters set out in that Rule regarding the provision of the requested support and the way in which it takes account of what it is reasonable to expect families, carers and informal networks to provide for adult participants in the NDIS. Pursuant to Rule 3.4(b), those matters include:

    (i)the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and

    (ii)the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:

    (A)   the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and

    (B)   the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and

    (C)   the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and

    (iii)the extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes;

14. Mr Cofre’s parents’ proposal of the granny flat on the family property is in response to the problems that arose from their son’s unsuccessful attempts to cope with respite accommodation and day placements. It is important, too, that their proposed solution reflects their understanding of their son’s preference and choice. The type of support which is now successfully in place with new support workers is a successful blend of disability and cultural considerations, which have had a positive impact for Mr Cofre. It provides the family with confidence that this kind of support is helpful and that it will increase the prospects of a successful transition into semi-independent living.

15. The Tribunal is satisfied that there is sufficient evidence about the criteria in Support Rule 3.4(b) to enable proper consideration of those criteria. Foremost is the question of the well-being of Mr Cofre. His unique needs at this stage of his life require a blend of day-to-day supports from family members and carers, with less involvement from the family, while still being in proximity to them. The accommodation proposal takes account of the advancing age of Mr Cofre’s parents and the need to reduce the intensity both of their contribution to their son’s wellbeing and his reliance upon them. The Tribunal finds that the criterion in s 34(1)(e) of the NDIA Act is met.

    Whether the support is most appropriately funded or provided through the NDIS 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 the reasonable adjustments required under a law dealing with discrimination based on disability: s 34(1)(f) of the NDIS Act

16. The test under s 34(1)(f) of the NDIS Act is whether the support is most appropriately funded through the NDIS, and it refers to the appropriateness of the source of funding and not to the support itself. Consideration must be given to whether Mr Cofre’s request for the support is most appropriately funded through the NDIS. Schedule 1 to the NDIS Supports Rules refers to the fact that the NDIS Act limits the supports that can be provided or funded under the NDIS. The schedule sets out considerations as to whether a support should be more appropriately provided under the NDIS or, alternatively, provided or funded through another service system.

17. The Agency contended that Mr Cofre’s requested support is not a home modification for which the NDIS has responsibility under NDIS Support Rule 7.19(b).

18. In relation to housing and community infrastructure, NDIS Support Rule 7.19 provides, in full, that the NDIS will be responsible for:

    (a)supports to assist a person with disability to live independently in the community, including by building their capacity to maintain a tenancy, and support for appropriate behaviour management; and

    (b)home modifications for accessibility for a person in private dwellings; and

    (c)home modifications for accessibility for a person in legacy public and community housing dwellings on a case-by-case basis but not to the extent that it would compromise the responsibility of housing authorities to develop, maintain and refurbish stock that meets the needs of people with disability; and

    (d)user costs of capital in some situations where a person requires an integrated housing and support model and the cost of the accommodation component exceeds a reasonable contribution from individuals.

19. The Agency submitted that the proposal for Mr Cofre’s granny flat is not a home modification for which the NDIS has responsibility because it is a separate dwelling on his parents’ property. It is not structurally connected to the main residence on the property and even if it was connected, it would still not constitute a modification. Secondly, the proposal is not concerned with accessibility as it is not a modification to an existing dwelling which enhances accessibility within that dwelling – for example, widening a doorway or redesigning a shower alcove.

20. The Tribunal accepts that the proposed accommodation unit for Mr Cofre would be a separate structure which is not connected to the house.

21. The Agency developed Home Modification Guidelines (“the Guidelines”). The current version commenced on 9 August 2022, which is well after Mr Cofre’s application to the Agency for independent accommodation. The current Guidelines refer to home modifications as: “… custom built changes to your home to help you access and use areas of your home… Home modifications can be minor changes like widening a doorway. Or they can be more complex… We generally don’t fund home modifications that increases a building’s size. This includes extensions to your home, or a new storey.”

22. The Guidelines distinguish between modifications that are minor and those that are complex. Minor home modifications cost less than $20,000 in total, for non-structural changes affecting one or two areas in the house. Complex home modifications comprise changes that are usually structural, custom built, higher risk and higher costs, which may need building approvals, certification of plumbing and electrical works, which may impact several areas of the house. The Guidelines envisage that the implementation of the home modifications should include evidence from an occupational therapist or home modification assessor about the justification for the modification. Funding for such an assessment should be included in the capacity building budget of the participant’s NDIS plan.

23. The NDIS Support Rule 7.19(b) concerns modifications for accessibility in private dwellings. Rule 7.19(c) concerns modifications for accessibility in legacy public and community housing. Accessibility is the common and key factor. The Guidelines indicate that those modifications are concerned with accessibility. In this case, the Agency’s submission is that the proposal is for a separate accommodation that is not a modification which is based on accessibility. Rather, the reason for the proposal and its very essence is about enhancing Mr Cofre’s independence and providing more suitable living arrangements for him in a unit that is separate from the main house but sufficiently close to it such that it would enable his parents to maintain a connection with him.

24. Mr Cofre’s family arranged the reports and assessments which led to the development approval under the Planning, Development and Infrastructure Act2016 (SA). Mr Cofre’s brother coordinated a considerable amount of work for the planning, budgeting and design, which led to certification for the proposed building. All of these measures were taken with appropriate regard to the processes which the family understood were necessary. If, however, as Counsel for the Agency submits, the plan is not for a home modification, then it cannot be provided through the NDIS as a home modification. There are two possibilities for consideration. One of them is that the granny flat will be a separate structure, and cannot be regarded as a home modification. The other is that the modification is not concerned with accessibility, because the idea behind it is to enable semi-independent living.

25. The Tribunal is satisfied that the proposal for the granny flat would involve a significant increase in the size of accommodation on the land. It would be a structural addition whether or not it was connected to the main house. The Tribunal is also satisfied that both the concept and purpose of the proposal are based primarily and quite properly on Mr Cofre’s developmental needs. Accessibility is not the aim. The proposal cannot be regarded as a modification in or to a private dwelling that is concerned with accessibility. It does not come within the scope of NDIS Support Rule 7.19(b) as a home modification for which the NDIS is responsible.

26. NDIS Support Rule 7.20 sets out four categories of housing and community infrastructure for which the NDIS is not responsible. The requested support for the granny flat is not prohibited under Rule 7.20, as it is not concerned with the types of housing, services and infrastructure specified in the four excluded categories. None of those provisions apply to this case.

1. As stated above, Schedule 1 to the NDIS Support Rules sets out the considerations which must be taken into account in deciding whether particular types of support are more appropriately provided or funded by the NDIS or through other service systems. In this case, it meets the criteria in s 34(1)(a), (b), (c), (d) and (e) of the NDIS Act for a reasonable and necessary support. In relation to housing and community infrastructure, the requested support comes within the scope of NDIS Support Rule 7.19(a) as a support to assist Mr Cofre to live independently in the community and to receive support for appropriate behaviour management. His family will still have a role in ensuring his safety and wellbeing. The granny flat does not come within the scope of NDIS Support Rule 7.19(b), (c) or (d), for which the NDIS is responsible. As discussed previously, it is not excluded under NDIS Support Rule 5.1(b).

2. Funding for the granny flat for Mr Cofre is consistent with important, general principles which guide actions under the NDIS Act. In particular, section 4 of the NDIS act includes provisions which are significant in this case, including:

   (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 the lifetime…

   (9A)People with disability are central to the National Disability Insurance Scheme and should be included in a co-design capacity…

   (12)The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected…

   (12A)The relationship between people with disability and their families and carers is to be recognised and respected.

3. The Tribunal has considered the requirement of s 3(3)(b) of the NDIS Act concerning the need to ensure the financial sustainability of the NDIS in giving effect to the objects of the legislation. There is no evidence in this case that the financial sustainability of the scheme will be jeopardised by funding the requested support.

4. The Tribunal is satisfied that the requested support is most appropriately funded through the NDIS. Accordingly, the requirement under s 34(1)(f) is met.

   SUMMARY

5. The request for semi-independent accommodation was made in 2019. The processes which Mr and Mrs Cofre pursued at that time would probably not be pursued nowadays because of the maturing of the NDIS systems and processes with regard to requests for accommodation support. The understanding of those processes is enhanced by the types of current operational guidelines which are informative and widely available. In this review, for example, the ILO guidelines illustrate, in detail, some of the principles, choices, processes and funding criteria for various types of home and living supports.

6. The internal review decision[42] which the Agency made on 24 October 2019 approved the request for additional funding for Mr Cofre for support coordination services, occupational therapy and speech therapy, exercise physiology, access to community support and some additional funding for the consumables budget in his NDIS plan. The principal request was for funding for a housing unit, and that request was declined, with reference to NDIS Support Rule 5.1(b) that the requested support is not related to Mr Cofre’s disability. For the reasons set out above, the Tribunal is satisfied that the requested support for a housing unit is reasonable and necessary in accordance with the criteria in the NDIS Act and in the NDIS Support Rules. It is a support which is related to Mr Cofre’s disability.

   [42] Exhibit 1, p 20.

7. Mr Cofre’s impairments, difficulties and challenging behaviours which stem from his disability are severe and unique to him. The challenges for his parents and other members of his family have been exceptional. The evidence, of the psychologist, Mr Ireland, and the psychiatrist, Dr Zarrabi, is critical to understanding the family background and the historical and current complexities. Dr Zarrabi considered that there are many indications in Mr Cofre’s history that: “… A consistent, supportive and measured behavioural strategy can lead to modification of behaviour and good result. I support the plan for transition to a more independent living arrangement…”.[43] Mr Ireland has considerable professional experience in clinical and forensic psychology for over forty years, which has included senior roles in working with people with disability. His assessment of Mr Cofre was thorough, and his analysis of the family dynamics was both direct and sensitive, while his recommendations were realistic, constructive and nuanced in acknowledgement of Mr Cofre’s “clinically significant problems”.[44]

   [43] Exhibit 21.

   [44] Exhibit 15.

8. The Tribunal accepts the evidence given by Mr Cofre’s brother. He collated the details about the planning, design, specifications and projected costs for construction of the dwelling, with the preliminary budget estimate in August 2020 of $94,211. The development plan consent was provided by the City of Onkaparinga on 19 November 2021.[45] The Tribunal considers that provision should be made for funding of up to $110,000 for the housing.

   [45] Exhibit 4.

   CONCLUSION

9. For the reasons set out above, the Tribunal is satisfied that the criteria in s 34(1)(a), (b), (c), (d), (e) and (f) of the NDIS Act are satisfied.

   DECISION

10. The decision under review made by the Agency on 24 October 2019 is set aside pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) and in substitution the Tribunal decides:

    Funding of up to $110,000 for a housing unit for the Applicant on the land situated at 3 Brooks Circuit Woodcroft 5162 is a reasonable and necessary support which is to be funded under the National Disability Insurance Scheme.

I certify that the preceding 94 (ninety-four) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson

.........[Sgnd]......................................

Associate

Date of Decision:	14 April 2023
Date of Hearing:	12 and 13 October, 10 November, and 2 December 2022
Non-legal representatives for the Applicant:	Carlos and Erika Cofre; Melissa Ballantyne, Nathalie Harris Advocacy for Disability Access and Inclusion Inc.
Counsel for the Respondent:	Mr d’Assumpcao Howard Zelling Chambers