Cox and National Disability Insurance Agency

[2022] AATA 3911

Cox and National Disability Insurance Agency [2022] AATA 3911 (2 November 2022)

Division:                  NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/1014

Re:  Glenn Cox

APPLICANT

And  National Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:                  Senior Member P Goward

Date:  2 November 2022

Place:  Sydney

The Tribunal affirms the decision under review pursuant to paragraph 43(1)(a) of the

Administrative Appeals Tribunal Act 1975 (Cth).

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

Senior Member P Goward

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME (NDIS) – quadriplegia – whether support is reasonable and necessary – whether the NDIA should fund Botox treatment as a reasonable and necessary support –whether funding for support is consistent with relevant law and policy – whether functionality is incidental to pain management – decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 73

National Disability Insurance Scheme Act 2013 (Cth) – ss 3, 4, 33 – 35, 100 & 103 National Disability Insurance Scheme (Support for Participants) Rules 2013 (Cth)

CASES

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

Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 WRMF and National Disability Insurance Agency [2019] AATA 1771

Young and National Disability Insurance Agency [2014] AATA 401

SECONDARY MATERIALS

National Disability Insurance Scheme – Operational Guidelines – Mainstream and Community Supports

National Disability Insurance Scheme – Operational Guidelines – Planning Oxford English Dictionary

REASONS FOR DECISION

Senior Member P Goward 2 November 2022

Introduction

1.The Applicant, Mr Glenn Cox, was involved in a catastrophic car accident in 2019 and as a result is a ventilated quadriplegic. He gained access to the National Disability Insurance Scheme (NDIS) in July 2020. The Applicant subsequently applied for an internal review under section 100 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act or the Act), of the plan approved in July 2020.

2.Following that internal review, the National Disability Insurance Agency (NDIA), agreed to fund some, but not all, of the requested supports. The Applicant was advised on 4 December 2020 that the requested support of an increase in the Applicant’s capacity building supports for Botox therapy, the support at issue in this decision, was not considered to be a reasonable and necessary support and therefore would not be funded. Mr Cox’s current plan is due to expire in December 2022.

3.The Applicant applied to the Administrative Appeals Tribunal (the AAT or Tribunal) for review of the internal review decision on 24 February 2021.

Issue

4.The Tribunal must decide whether the provision of Botox therapy to provide pain relief is a reasonable and necessary support under the NDIS Act.

Background

5.As a result of the Applicant’s quadriplegia, three metal rods were inserted into his spinal cord to provide him with greater physical stability. Unfortunately, there is also significant spasticity and pain associated with that improvement and Mr Cox has relied on prescribed opiates to address the pain across his shoulder blades. His treating physician, Dr Sachin Shetty, who has noted the addictive nature of the opiates (and other side effects such as drowsiness and constipation) has been administering Botulinum Neurotoxin (Botox), guided by ultrasound, into the Applicant’s affected area. This provides pain relief and reduces the Applicant’s reliance on opiates and their side effects. Since discharged from hospital, the Applicant has continued to receive regular doses of Botox in a private hospital.

6.Despite the success of the Botox therapy in assisting in the Applicant’s pain management with reduced side effects, the Applicant is unable to receive Botox therapy as an outpatient in a public hospital. In the amended hearing bundle filed on 7 September 2022, the Applicant’s treating doctor, Dr Shetty, quoted for Botox therapy on 21 February 2022 at an annual cost of $3,621.75, net of Medicare rebates, if he were to continue the treatment.

7.Mr Cox requested that the NDIA fund the Botox treatment. When the internal review upheld the original decision not to do so, the Applicant then applied to the AAT for an independent review under section 103 of the NDIS Act.

8.On 10 October 2022, the Tribunal held a final hearing by video conference in this matter. The Tribunal has considered all documents filed and taken into evidence in this proceeding and for the following reasons affirms the original decision of the NDIA.

Relevant Legislation and Policy

The NDIS Act

9.The objects of the NDIS Act, as set out in section 3, include to:

(a)   in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and

(b)  provide for the National Disability Insurance Scheme in Australia; and

(c)   support the independence and social and economic participation of people with disability; and

(d)   provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme; and

(e)  enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and

(f)   facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and

(g)  promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and

(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and

(h)   raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability...

10.Subsection 3(3) of the NDIS Act relevantly provides that, in giving effect to the objects of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.

11.Section 4 of the NDIS Act sets out the general principles guiding actions under the legislation, including that:

(1)  People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.

(2)    People with disability should be supported to participate in and contribute to social and economic life.

(3)   People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.

...

(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.

…

(11) Reasonable and necessary supports for people with disability should:

(a)    support people with disability to pursue their goals and maximise their independence; and

(b)   support people with disability to live independently and to be included in the community as fully participating citizens; and

(c)   develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.

...

(15) In exercising their right to choice and control, people with disability require access to a diverse and sustainable market for disability supports in which innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of those supports is promoted.

12.Paragraph 33(2)(b) of the NDIS Act relevantly requires a participant’s plan to include a statement, prepared with the participant and approved by the CEO of the NDIA, that specifies, among other things, ‘the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme’. Subsection 33(5) of the NDIS Act stipulates that in deciding whether to approve a statement of participant supports under subsection 33(2), the CEO of the NDIA, or in this proceeding the Tribunal, 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.

13.Subsection 34(1) of the NDIS Act sets out the criteria which determine what supports will be provided to an NDIS participant, as follows:

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

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

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

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

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

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

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

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

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

14.In McGarrigle v National Disability Insurance Agency [2017] FCA 308, Mortimer J observed that:

Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.

…

In my opinion, the text and context of s 33(5)(c), read with s 34(1) indicates that the CEO (or the delegate or Tribunal) must either be satisfied that a support has the character of being a reasonable and necessary support, or that it does not. Once a support is identified and described (to take an example away from this case, speech therapy lessons three times a week), then the question for the CEO (or the delegate or Tribunal) is whether she or he is satisfied that support, as identified, is reasonable and necessary for that particular participant...

The Rules

15.Subsection 34(2) of the NDIS Act authorises NDIS rules to 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)’ in section 34. In this regard, pursuant to subsection 209(1) of the NDIS Act, the Minister may by legislative instrument make rules regarding the NDIS. Section 35 of the NDIS Act relevantly provides that the NDIS rules ‘may make provision in connection with the funding or provision of reasonable and necessary supports’, including methods or criteria to be applied and supports that will not be funded or provided under the NDIS.

16.The rules relevant to this application are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Rules), which relate to the assessment and determination of the reasonable and necessary supports that will be funded for participants under the NDIS and which the Tribunal is bound to apply pursuant to paragraph 33(5)(d) of the NDIS Act.

17.Part 3 of the Rules provides guidance for assessing a participant’s proposed supports under subsection 34(1) of the NDIS Act.

18.Although the Applicant initially identified paragraph 34(1)(c) of the Act, requiring a proposed support to provide value for money, this has not been opposed by the Respondent and accordingly was not in dispute during these proceedings.

19.It is the Rules applying to the criteria identified in paragraph 34(1)(f) of the Act, which are in dispute here. That is whether:

(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.

20.The Rules which apply to paragraph 34(1)(f) are contained in Schedule 1 of the Rules:

3.5       Schedule 1 sets out matters for the CEO to have regard to in considering whether supports are most appropriately funded or provided through the NDIS, rather than through other service systems (service systems is defined in paragraph 6.4).

3.6      The matters to have regard to are set out under the following headings in the Schedule:

(a)Health (excluding mental health);

(b)Mental health;

(c)Child protection and family support;

(d)Early childhood development;

(e)School education;

(f)Higher education and vocational education and training;

(g)Employment;

(h)Housing and community infrastructure;

(i)Transport;

(j)Justice.

3.7 Where particular supports are set out in the Schedule as being appropriately funded or provided through the NDIS, the CEO must still be satisfied of a number of other matters in order for the supports to be funded or provided (see paragraphs 2.3(a)-(e) of these Rules and paragraphs 34(a)-(e) of the Act).

21.The Applicant and Respondent agreed that the relevant matter here is the consideration of whether the support being sought is most appropriately funded through the NDIS or through the public health system. For completion, Schedule 1 of the Rules stipulates the following as relevant:

Schedule 1 Considerations relating to whether supports are most appropriately funded through the NDIS

7.1      The Act limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems, for example as part of a universal services obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

7.2      The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system.

7.3       For the avoidance of doubt, while this Schedule sets out considerations relevant to whether a support should be considered to be more appropriately provided or funded through another service system, it does not purport to impose any obligations on another service system to fund or provide particular supports.

Note: The considerations set out in this Schedule are derived from the Principles to determine the responsibilities of the NDIS and other service systems, agreed to by the Council of Australian Governments, and dated Friday 19 April 2013. That document also includes principles relating to aged care. They are not relevant to this Schedule, but are given effect to in section 19 of the Act, and the National Disability Insurance Scheme (Becoming a Participant) Rules 2013.

Health (excluding mental health)

7.4       The NDIS will be responsible for supports related to a person’s ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment.

7.5The NDIS will not be responsible for:

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

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

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

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

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

(d)palliative care.

22.The NDIS Operational Guidelines on Mainstream and Community Supports (Mainstream and Community Supports Guideline) provide further explanation of how the Act is to be implemented for individual participants. This extract from the Mainstream and Community Supports Guideline advises that it:

explains how we work out whether supports should be funded or provided by us, or by another service. We work this out based on the law for the NDIS, the government agreements made when the NDIS was set up, and new government agreements in Disability Reform Ministers’ Meetings.

23.While the NDIS Operational Guidelines are not mandatory, they are intended to provide policy guidance to the application of the Rules. Relevantly, the following section of the Mainstream and Community Supports Guideline applies to the operation of paragraph 34(1)(f):

How do we work out who should fund or provide your supports?

All supports we fund must meet all the NDIS funding criteria.

One of these criteria is that the support must be most appropriately funded or provided through the NDIS. We can’t fund supports that are more appropriately funded or provided either:

·by other general systems of service delivery or support services, such as a workers compensation scheme

·under a universal service obligation that mainstream services must provide to all Australians, such as schools and public hospitals

·as a reasonable adjustment under discrimination law, such as making places or venues accessible for you.

In short, if it’s more appropriate for another service to provide the community and mainstream supports you need, we can’t fund it in your plan.

We can’t fund supports that mainstream and community services should provide, even if the other service system doesn’t actually provide it. We can’t make up for other organisations and services, where it’s their responsibility to fund or provide a service you need.

Contentions and Consideration

NDIA

24.The NDIA contends that the provision of Botox therapy to Mr Cox is a health support for his pain management and therefore does not meet the criteria for provision outlined in the NDIS Act. Specifically, the NDIA contends that the criteria in paragraph 34(1)(f) cannot be met, as it requires that the CEO of the NDIA be positively satisfied the support is more appropriately provided by the NDIA and not 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, such as, in this case, the public health system (which includes public hospitals and Medicare).

25.In the Respondent’s Statement of Facts Issues and Contentions dated 1 April 2022 (SOFIC) reference is made to the decision in Young and National Disability Insurance Agency [2014] AATA 401 (Young) where it is noted that:

Whether or not funding is available through other general systems is not the test of whether it is most appropriately funded or provided under the NDIS.

26.This is expanded further in the NDIS Operational Guidelines on Planning (Planning Guideline) which states that:

… the fact that the health system does not fund entirely, or even at all, what is essentially clinical treatment, or some other form of support that is more appropriately funded through the health system, does not make it the responsibility of the NDIS…

27.The Planning Guideline continues:

This principle reflects the statement of the Productivity Commission in its 2011 report
… which states that:

“it will be important for the NDIS not to respond to problems or shortfalls in mainstream services by providing its own substitute services. To do so would weaken the incentives of government to properly fund mainstream services for people with a disability, shifting the cost to another part of government ... This ‘pass the parcel’ approach would undermine the sustainability of the NDIS and the capacity of people with a disability to access mainstream services”.

28.Schedule 1 of the Rules is also relied upon, particularly in relation to the requirements of paragraphs 7.4 and 7.5 of the Schedule, which apply to health supports as noted above.

29.The Respondent contends that the Applicant’s Botox therapy is a support for a health condition, his pain, and therefore sits squarely within the considerations of paragraph 7.5 in Schedule 1. Further, the pain management cannot be included under the considerations outlined in paragraph 7.4 of the Schedule, since the Botox treatment does not directly (although, the Respondent conceded, incidentally) relate to a functional impairment nor is integrally linked to the care and support a person requires to live (in this case) in the community.

30.The Respondent’s opening and closing submissions addressed the expert evidence provided by Dr Shetty, the Applicant’s treating physician. This included the submission for costs which referenced the Medicare schedule.

31.The Respondent, in contending that the Botox treatment was to be excluded under paragraph 7.5 as a clinical treatment, referred to Dr Shetty’s letter of 24 August 2020, particularly its first paragraph. Relevantly as follows:

The pain issues are quite complex due to the altered spinal biomechanics resulting from the spinal fusion and differential muscle innervation across the neck and upper back due to spinal cord injury. After exploring a variety of first line and second line treatment options which have either did very little positive results or gave him unacceptable side effects, it has been noted that targeted low dose botulinum toxin injection into the specific muscle groups across the neck and the upper back has given Glenn the best degree of relief allowing him to function on much less pain medications.

32.During the Respondent’s final oral submissions, counsel referred extensively to an academic research paper filed by the Applicant, Spasticity Treatment with Botulinum Toxins, authored by AB Ward and published in the Journal of Neural Transmission on 4 April, 2008 (Ward paper). The Respondent referenced the paper’s identification of Botox as pharmacological:

All pharmacological interventions are adjunctive to a

programme of physical intervention and there is a good evidence base for this in relation to botulinum toxin treatment.

33.In that same academic paper, the Respondent highlighted references to Botox being described as a drug which would require ‘[c]linician(s) trained in spasticity management in general and with specialist additional training in BoNT treatment’. The paper effectively sets out the medical nature of the treatment. The Respondent’s representative drew the Tribunal’s attention to Table Figure 1, which, he argued, suggested spasticity treatments

‘ended in surgery’. He also drew attention to the use of the word ‘drug’ to describe the therapy and to the observation that it ‘needed a trained clinician to treat with it’ and concluded that ‘this paper sets out the medical nature of the treatment’, as a ‘pharmacological intervention’.

34.The Respondent concluded that the Ward paper confirmed that Botox therapy was a ‘pharmacological intervention’ and thus, consistent with paragraph 7.5 of the Rules, an excluded support.

35.The Respondent then submitted that the Tribunal’s task is to identify the factors which would make the NDIS the most appropriate funder of such a support. The Respondent has argued that, while the Tribunal can exercise discretion in considering other factors, such as the contribution the Botox treatment might make to the Applicant’s functionality, ‘it is not in the interests of good government’ to stray too far from the requirements of the Act and the criteria outlined in the Rules.

36.The Respondent has made reference to the judgment of the Full Court of the Federal Court in National Disability Insurance Agency v WRMF [2020] FCAFC 79 (WRMF) and in particular, the observation that ‘a decision-maker be positively satisfied about each matter’ and that the ‘satisfaction must be reasonably and rationally formed’.

37.It is difficult to disagree with the proposition that the Botox therapy is a pharmacological adjunct to the Applicant’s pain management, despite the Applicant’s claim that it is not a pharmacological intervention, to which I will return later.

38.The Respondent has also argued that the payment schedule provided by the Applicant for Botox therapy identified the applicable Medicare rebate for each procedure. Botox, including for pain management, is funded through the PBS in some circumstances and its application by a medical doctor attracts such a rebate. The Respondent contends this is consistent with Botox therapy being classified as a health support.

The Applicant

39.The Applicant’s Statement in Reply dated 15 April 2022, and his Statement of Lived Experience dated 20 July 2022, both comprehensively describe the relief enjoyed when Botox is administered and the subsequent effect on the Applicant’s ability to ‘sustain a

routine of sitting in [his] wheelchair to do computing and physical exercise and other activities for up to six to eight hours of the day. [He] can feel when the last Botox application is wearing off as [he] cannot sleep at night and [has] become physically exhausted with little functional capacity’.

40.The Applicant considers that the regular Botox supports are in accordance with his NDIS Plan Goals, particularly to:

engage with Allied Health and other professionals to review my complex needs including the ongoing use of pain management. I will have access to necessary AT and medical needs to increase my independence.

41.The applicant continues:

To continue to survive with my condition and to achieve my goals, while maintaining my wellbeing levels, means that I require ongoing Botox program of complete pain management as advised by my specialists.

42.Notably, the Applicant asserts the ‘injections are not a pharmacological support’, despite the evidence of his treating specialist, Dr Shetty of 24 August 2020 that Botox was essentially for pain relief.

43.In the Applicant’s Statement in Reply, the Applicant contends that the Botox treatment is properly categorised as a capacity building support and not a pharmaceutical support. The Oxford Dictionary defines a ‘pharmaceutical’ as a medicinal drug and Botox applied in the treatment of spasticity would appear to meet the ordinary definition of the word. The fact that the treatment reduces the spastic effect in the relevant muscles, rather than treating the pain emanating from such affected muscles, does not, in the Tribunal’s view, alter the fact that the Botox is acting as a medicinal drug, that is, it is producing a beneficial effect in the body of the treated person. In any case, whether the drug is pharmaceutical is not the essential question in this case, rather, it is whether the drug is being applied for a health purpose, that is, to manage the Applicant’s pain, or for a capacity building purpose.

44.The Applicant’s Statement in Reply also directly addresses paragraph 7.4 of the Rules and considers the Applicant’s use of Botox therapy does not fit within any of the exclusions of paragraphs 7.5(a) to 7.5(d) of the Rules, as ‘the botulinum support is directly relevant to the level of daily living and support delivered by an eminently qualified health practitioner for the benefits of community participation’.

45.The Applicant has also referred to the case of WRMF and National Disability Insurance Agency [2019] AATA 1771, in which the Tribunal opined that the ‘matters to which the CEO is to have regard, rather than methods or criteria which the CEO is to apply’ supported the Applicant’s contention that the Rules (paragraphs 7.4 and 7.5 in this case) ‘are clarifying matters rather than decisive criteria’. However, as the Respondent has already cautioned, the judgment in WRMF also requires the Tribunal to be positively satisfied. I also note that the Rules, which are of a legislative character, afford very little discretion and must be applied as relevant. Accordingly, the Tribunal cannot stray too far from these criteria and considers they must be satisfied in the interests of consistent public policy and particularly when read with subsection 3(3) of the Act, which requires consideration of the NDIS’s financial sustainability.

46.The Tribunal turns now to the Respondent’s contention in its SOFIC that the Applicant has not explained:

how, if at all, the Botox injections relate to his ongoing functional impairment and assist him to undertake the types of activities that he describes in his statement of goals and aspirations in his plan. For example, the evidence relied on by the Applicant does not disclose how the treatment to be provided by Dr Shetty will tangibly improve his function so as to help him achieve his medium to long term goal of returning to work.

47.I take a different view of the Applicant’s experience of Botox.

48.In both the Applicant’s written and oral evidence, he has clearly explained how the application of Botox delivers on-going pain relief (from the spasticity) without preventing him from functioning socially. The Applicant has explained that the alternative pain relief, opiates, have the side effects of constipation and, for the purposes of social functioning, drowsiness, which significantly limits his social functioning. The Applicant continues to rely upon opiates but, in conjunction with Botox therapy, to a lesser degree.

49.That the use of Botox reduces the Applicant’s reliance on opiates and enables a greater degree of social functioning is undeniable. The evidence before the Tribunal shows that were the Applicant to return to his work as a surveyor, Botox would be unlikely to compromise his work efforts as it would not induce the sleepiness associated with opiate use, although the Applicant did not pursue this point at the hearing. This, however, does not mean that the requirements of paragraph 7.4 of the Rules are entirely met. While that paragraph even anticipates that supports may be delivered or supervised by clinically

trained or qualified health practitioners, it contains several other requirements which need to be met. The paragraph is repeated here:

The NDIS will be responsible for supports related to a person’s ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment (emphasis added).

50.The evidence of the Applicant, and of the Applicant’s treating specialist, is that, in summary, the Botox therapy is primarily a source of pain relief which is preferred because it does not have the same side effects as alternative sources of pain relief. Botox is not being applied because it is directly related to the Applicant’s functional impairment, his immobility, or integrally linked to the support the Applicant requires to live in the community, but rather because it is an alternative means of reducing the associated pain of spasticity. That it also enables the Applicant to enjoy greater social engagement is, while welcome and even an important consideration for the treating doctor in deciding to use it, essentially incidental to its role as pain management, its primary purpose.

51.It is, even recognising the incidental benefit of Botox therapy to the Applicant’s functioning, as described by the Respondent, not possible for the Tribunal to be positively satisfied that the Botox therapy is directly related to the Applicant’s functional impairment and integrally linked to the care and support required for him to live in the community and participate in education and employment. None of the academic research papers provided to the Tribunal, including the Ward paper, argues that Botox therapy for spasticity is designed to improve functionality.

52.There is some attraction in the two-step argument that since pain relief is an essential health support to the Applicant, the source of pain relief that enables greater functionality (Botox therapy) should be funded under the NDIS, but this does not obviate the primary function of the Botox, which is that it provides pain relief; a clinical, health-related support.

53.Paragraph 7.5 of the Rules identifies the supports that are excluded from NDIS funding. Relevantly, it excludes:

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

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

54.I reiterate, in concert with the Respondent with reference to Young, that:

Whether or not funding is available through other general systems is not the test of whether it is most appropriately funded or provided through the NDIS. The fact that the health system does not fund entirely, or even at all, what is essentially clinical treatment, or some other form of support that is more appropriately funded through the health system, does not make it the responsibility of the NDIS.

55.In this case, the Applicant agreed during the hearing that the Botox therapy had been cost- free whilst he was an in-patient but was not available at public hospitals in NSW as an out- patient. He is eligible for a Medicare rebate for the medical service, but there is no rebate available to him for the drug itself and out of pocket expenses amount to over $3,000 annually, which he is seeking from the NDIS. The Tribunal observes that the cost-free provision of Botox to assist with spasticity in adults who are not admitted in-patients, is a matter for NSW Health, but, consistent with the findings in Young, does not make the payment of any shortfall in payment the responsibility of the NDIS. The Applicant argued that Young was not a good precedent, because the supports being sought in that case were all covered by private health insurance. The Tribunal considers the principle established in Young was unaffected by the availability of private health insurance and, in this instance, the no-cost provision of Botox for chronic pain relief to outpatients of public hospitals is a matter for NSW Health, because pain relief is a clinical concern and therefore squarely within its responsibilities.

56.The Applicant argued vigorously that the functionality improvement provided by Botox, relative to other pain management treatments, had not been adequately accounted for by the Respondent. The Applicant argued that his was ‘a unique set of circumstances’ and the option of Botox, in addition to the avoidance of drowsiness associated with other medications such as opiates, enabled the Applicant to ‘exercise [his] choice not to become addicted to opiates’. The Applicant noted that the addictive nature of opiates would also mean that he ‘would require increased doses as [his] body became more resistant to their effects’.

57.The Tribunal has some sympathy with the functional benefits of Botox therapy for those with spasticity, especially as described by the Applicant. However, the role of Botox therapy in

providing relief from the pain associated with the Applicant’s spasticity, as described by Dr Shetty and by the Applicant’s Statement of Lived Experience and supported by academic research papers referring to the effectiveness of Botox in the pain management of spasticity, is evidence consistent with the fundamental proposition that Botox therapy for spasticity is a health support, not a capacity building support. Any capacity building is therefore incidental to its primary function. In addition, the inclusion of Botox administration for spasticity in the Medicare schedule reinforces the proposition that Botox therapy is a medical procedure primarily for health-related purposes. It follows that Botox therapy has been provided to the Applicant as a health support and therefore must be excluded from consideration as a reasonable and necessary support under the provisions of paragraph

7.5 of the Rules and fails to satisfy the requirements of paragraph 34(1)(f) of the Act.

58.During the course of the hearing, the Applicant suggested that the Tribunal exercise its ‘discretion’ to grant him funding for Botox therapy notwithstanding the law and policy contained in the Act, Rules and relevant guidelines.

59.Whilst I acknowledge the Applicant’s submission regarding the ‘uniqueness’ of his situation, the Tribunal is nevertheless bound by the same powers and discretions conferred upon the Respondent’s delegate in this case, as outlined in the relevant law: see subsection 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth). Furthermore, the Tribunal will generally follow relevant governmental policy, unless there are cogent reasons to depart from such policy: see Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634.

60.The Tribunal must follow the relevant law which outlines the powers and discretions which I as the decision maker may exercise. I cannot depart from that. Furthermore, I do not consider that the circumstances warrant a departure from established policy.

Conclusion

61.The Tribunal finds that the provision of Botox therapy to the Applicant for the treatment of spasticity fails to satisfy the requirements of paragraph 7.4 of the Rules and meets the requirements of paragraph 7.5.

62.Accordingly, the Tribunal finds the provision of Botox therapy to be a clinical health support and therefore best provided by a system other than the NDIS, in this case the

Commonwealth, states and territories’ health systems. Accordingly, it fails to meet the requirements for NDIS funding under paragraph 34 (1)(f) of the NDIS Act. Botox therapy is already recognised as a fundable support under Medicare and can be provided for in- patients in public hospitals in NSW, where the Applicant resides. That there is a funding short fall does not mean the NDIS is obliged to meet the cost gap for the Applicant.

63.The Tribunal affirms the decision under review pursuant to paragraph 43(1)(a) of the

Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Goward

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

Associate

Dated: 2 November 2022

Date(s)ofhearing:	10 October 2022
AdvocatefortheApplicant:	Ms J Farrell
CounselfortheRespondent:	Mr T Liu
SolicitorfortheRespondent:	Mr J Pattinson, Mills Oakley