Darlow and National Disability Insurance Agency

Darlow and National Disability Insurance Agency [2022] AATA 4280 (13 December 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/2981
Re:Anthony Darlow
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member K. Parker
Date:13 December 2022
Place:Melbourne

For the reasons set out above, the Tribunal sets aside this decision under review and remits this matter for reconsideration by the Respondent with a direction that it is to facilitate the approval of a new SOPS for the Applicant, Mr Anthony Darlow, containing the following provisions:
(a)a reassessment date that falls on the one-year anniversary of the date of approval of the new SOPS resulting from this remittal;
(b)a provision specifying that the funding in the new SOPS is to be managed in the same way as the funding is managed in Mr Darlow’s current SOPS;

(c) a provision approving funding for Mr Darlow for the following supports:
(i)to meet the repayments for Mr Darlow’s mini-CPAP machine (not to exceed $2,036.95, as per quotes for mini-CPAP machine and consumables);
(ii)12.5 hours per week, 52 weeks per year, at the weekday daytime rate plus 5 hours per week, 52 weeks per year, at the weekend daytime rate, for support worker assistance on a 1:1 basis to assist the Applicant in relation to his personal care routine (whether that be undertaken in his home or in any other place), and to undertake occasional heavier household cleaning as required; and
(d) replication, on a pro rata basis, of all existing supports in his current SOPS except for support worker assistance which has been replaced by the support provided under subparagraph (c)(ii) above and any other one-off supports in his current SOPS for which the funding has already been expended.

..............................[SGD]..........................................
Senior Member K. Parker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – plan review – assessment of degree of physical and psychological impairments arising from Applicant’s disability – whether supports might reduce Applicant’s independence – credibility issues – slightly higher level of support worker assistance granted, but not at the level requested by the Applicant – Tribunal satisfied mini-CPAP machine repayments under payment plan met “reasonable and necessary support” criteria – NDIA agreed to provide ergonomic desk and chair during the course of the proceeding – Applicant claimed more expensive desk and chair – Tribunal not satisfied more expensive desk and chair met “reasonable and necessary support” criteria – Decision Under Review set aside and remitted with directions
Legislation
Administrative Appeals Tribunal Act 1975 (Cth
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Cases
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Secondary Materials
NDIS Operational Guidelines - Reasonable and necessary supports | NDIS
NDIA publication: Disability-related health supports | NDIS
REASONS FOR DECISION
Senior Member K. Parker
13 December 2022

The Applicant, Mr Anthony Darlow, is an adult participant in the National Disability Insurance Scheme (NDIS). Mr Darlow seeks review of a decision by the National Disability Insurance Agency (NDIA) approving a statement of participant supports forming part of an NDIS plan. In short, Mr Darlow has requested that funding for additional supports under the NDIS be included in his SOPS.
While this matter was before the Tribunal, the NDIA agreed to provide Mr Darlow some, but not all, of the additional supports he was requesting; specifically, increased hours of support coordination and assistive technology comprising orthotics (that is, funding of $1,790.24 for orthoses for two pairs of shoes and application of an external raise to the right shoe to two pairs of shoes). On the first day of the hearing, Mr Darlow told the Tribunal he was “willing to concede on the transport side of things” and confirmed he was comfortable with the current level of transport supports.[1]
[1] Refer Transcript, P-27.
The supports remaining in dispute between the parties in this proceeding are:
(a)increased hours of support worker assistance on a 1:1 basis (specifically, to increase Mr Darlow’s total weekly number of hours of support worker assistance to 33 hours per week and to include services after 8pm on Mondays and Fridays and before 8pm on Tuesdays, Wednesdays, and Thursdays);
(b)repayments on a payment plan executed by Mr Darlow in respect of a mini-Continuous Positive Airway Pressure (CPAP) machine; and
(c)an ergonomic desk and chair in accordance with quotations provided by Mr Darlow.
The Tribunal will refer to these three supports collectively as the Requested Supports. The NDIA contends that the Requested Supports are not “reasonable and necessary supports” as they do not meet the criteria under s 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDISAct). Mr Darlow contends otherwise and that he should be funded for the Requested Supports.
Arising from the hearing, the NDIA considers that an additional support should be added to Mr Darlow’s SOPS being funding for 10 hours for an NDIA-registered Behaviour Support Specialist to undertake a behaviour support assessment of Mr Darlow.
Following a remittal by the Tribunal ordered under s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), a delegate of the CEO approved a new SOPS for Mr Darlow on 14 January 2022. The NDIA included in the new SOPS funding for the following supports:
(a)the behaviour support assessment referred to in paragraph [5];
(b)a total of 14.5 hours per week of support worker assistance (that is, core supports funding) to assist Mr Darlow with activities of daily living (ADL) and social, community and civic participation; and
(c)$1,000 to purchase a less expensive office chair than the one proposed by Mr Darlow (with a lumbar support and a safe working load over Mr Darlow’s weight) and a static sit-to-stand desk.
Mr Darlow elected to proceed with this review under s 42D(4) of the AAT Act, so the decision on 14 January 2022 to approve this new SOPS became the Decision Under Review. This new SOPS forms part of Mr Darlow’s current NDIS plan.
The Tribunal’s jurisdiction arises from the operation of s 25(1) of the AAT Act in conjunction with s 103 of the NDIS Act.
For the reasons set out above, the Tribunal sets aside this decision under review and remits this matter for reconsideration by the NDIA, with a direction that it is to facilitate the approval of a new SOPS for Mr Darlow containing the following provisions:
(a)a reassessment date that falls on the one-year anniversary of the date of approval of the new SOPS resulting from this remittal;
(b)a provision specifying that the funding in the new SOPS is to be managed in the same way as the funding is managed in Mr Darlow’s current SOPS;
(c)a provision approving funding for Mr Darlow for the following supports:
(i)to meet the repayments for Mr Darlow’s mini-CPAP machine (not to exceed $2,036.95, as per quotes for mini-CPAP machine and consumables);
(ii)12.5 hours per week, 52 weeks per year, at the weekday daytime rate plus 5 hours per week, 52 weeks per year, at the weekend daytime rate, for support worker assistance to assist the Applicant in relation to his personal care routine (whether that be undertaken in his home or in any other place), and to undertake occasional heavier household cleaning as required; and
(d)replication, on a pro rata basis, of all existing supports in his current SOPS except for support worker assistance which has been replaced by the support provided under subparagraph (c)(ii) above, and any other one-off supports in his current SOPS for which the funding has already been expended.
ISSUE
The Tribunal must decide whether it should affirm, set aside, or vary the Decision Under Review. This will require the Tribunal to consider whether the Requested Supports are “reasonable and necessary supports” under s 34(1) of the NDIS Act; and if so, at what level.
EVIDENCE AND SUBMISSIONS
The Applicant was unrepresented in this proceeding. Both parties lodged voluminous submissions and evidence in relation to the matters arising, for consideration by the Tribunal. The NDIA lodged a hearing tender bundle with the Tribunal comprising 2,332 pages (NDIA’s HTB). The NDIA’s HTB contained the set of Tribunal Documents (T-Documents) and Supplementary Tribunal Documents (ST-Documents) lodged by the NDIA pursuant to its obligations under ss 37 and 38AA of the AAT Act. It also included:
(a)a large volume of medical records and reports in relation to Mr Darlow produced under summonses and as provided by Mr Darlow on 6 December 2021;
(b)expert reports prepared by Ms Toni Richardson, Mr Darlow’s treating occupational therapist – specifically:
(i)her plan review report dated 18 June 2021 (Ms Richardson’s First Report);[2]
(ii)her functional assessment report dated 5 November 2021 (Ms Richardson’s Second Report);[3] and
(iii)her supplementary report dated 6 December 2021 (Ms Richardson’s Third Report);[4] and
(c)independent expert reports prepared by Ms Hannah Lewis; an occupational therapist engaged by the NDIA to undertake a functional assessment of Mr Darlow – specifically:
(i)her functional assessment report dated 19 November 2021 (Ms Lewis’ Report);[5] and
(ii)her supplementary report dated 6 December 2021 (Ms Lewis’ Second Report);[6] and
(d)Dr Grant Walker, Neurologist, engaged by the NDIA to undertake an independent medical examination of Mr Darlow – specifically, his report dated 24 November 2021 (Dr Walker’s Report).[7]
[2] Refer NDIA’s HTB, Pages 316-319.
[3] Ibid, Pages 361-410.
[4] Ibid, Pages 486-490.
[5] Ibid, Pages 423-455.
[6] Ibid, Pages 486-490.
[7] Ibid, Pages 465-469.
Further documentary evidence was produced as requested during the hearing; and both parties also lodged closing submissions after the hearing due to the new evidentiary matters that came to light during the hearing. This included a witness statement made by a representative of the table tennis association, being the organisers of a weekly table tennis competition that Mr Darlow participates in as a player.
Mr Darlow was self-represented at this hearing and was able to clearly articulate his case. His support workers were present. Mr Darlow also lodged an Affidavit sworn by him on 3 December 2021 containing statements about his lived experience and submissions about why he considers that the Requested Supports are “reasonable and necessary supports” (Mr Darlow’s SLE).[8]
[8] Ibid, Pages 474-482.
The NDIA was represented by Ms Jess Moir of counsel. The NDIA lodged a Statement of Facts, Issues and Contentions (NDIA’s SFIC) (comprising 33 pages), a set of case authorities and updated legislation and operational guidelines (comprising 990 page) and Closing Submissions which ran for 38 pages (NDIA’s Closing Submissions).
The matter was listed for a four-day hearing, including two moderately lengthy adjournments.
At the hearing, Mr Darlow gave evidence, and he called the following witnesses to give evidence:
(a)Ms Richardson;
(b)Dr Louise Alexander, Mr Darlow’s treating general practitioner; and
(c)Mr Ross Wall, Mr Darlow’s treating psychologist.
At the hearing, the NDIA called two independent experts, Ms Lewis and Dr Walker, to give evidence. The NDIA made further oral submissions on the last day of the hearing. On the second last day of the hearing, a further lay witness being a committee member of a table tennis association, Mr GB, gave evidence at the hearing.
Mr Darlow lodged closing submissions on 22 February 2022 comprising 36 pages (Mr Darlow’s Closing Submissions). He raised some new matters and requested some new supports for the first time. The NDIA made a submission to the Tribunal about this on 8 March 2022. Upon consideration of that submission, the Tribunal reopened this matter and listed it for a further resumed hearing on 23 March 2022 to address those new matters with the parties.
The Tribunal has now considered all of the documentary and oral evidence and submissions put before the Tribunal.
BACKGROUND
Mr Darlow’s living arrangements
Mr Darlow is a 46-year-old man who lives independently in a unit in an outer suburb of Melbourne. He has a disability arising from several impairments affecting his physical and mental health. He is supported by support workers through an agency and several health practitioners. The support workers assist him with activities of daily living (ADLs), and they also accompany him on outings into the community, to play competition table tennis weekly on Monday nights, and to attend hydrotherapy twice a week under the supervision of an exercise physiologist.
History of Mr Darlow’s impairments and medical conditions
Dr Walker, Neurologist, was engaged by the NDIA to undertake a medical examination of Mr Darlow. Mr Darlow objected to submitting to a medical examination by Dr Walker.[9] The NDIA requested that Dr Walker review the medical documentation relating to Mr Darlow and to prepare a report (prepared on 24 November 2021) about Mr Darlow’s reported diagnoses, and to answer a set of specific questions prepared by the NDIA (Dr Walker’s Report).
[9] Refer Transcripts for directions hearings on 12/8/2021 and 13/10/2021.
In Dr Walker’s Report, he addresses the following reported diagnoses of:
(a)cardiomyopathy;
(b)severe Obstructive Sleep Apnoea (OSA);
(c)T6-T9 spinal wedge fractures;
(d)shortened leg length;
(e)syncope;
(f)overactive bladder;
(g)Acquired Brain Injury (ABI); and
(h)musculoskeletal injuries
Dr Walker also indicated the medical documentation provided evidence of the following:
(a)hemochromatosis (requiring venesections in the past);
(b)excess alcohol intake;
(c)asthma;
(d)obesity leading at one stage for a discussion of bariatric surgery by Dr Cheah in 2020;
(e)thymoma excision in 2013 requiring thyroid replacement hormone since the excision;
(f)left sided carpal tunnel shown on nerve conduction studies in 2018;
(g)androgen insufficiency for which he has seen Dr Calogerkakis and has two monthly injections of testosterone;
(h)mental health issues – noting Mr Wall’s Report dated 24 September 2020 stating that he had known Mr Darlow for four years and that he suffered from anxiety, depression, and obsessional behaviour; and
(i)keratoconus of his cornea.
Mr Darlow was involved in a fall in the workplace in 2005. Mr Darlow claims to have sustained an ABI as a result of this fall.
In Dr Walker’s report, he made the following observations about Mr Darlow’s claimed ABI (emphasis added):[10]
This I assume relates to his fall in 2005. Regrettably I have no information in respect of the nature of the head injury although it is alleged that he was seen at the Austin Hospital by the Neurology team. He was seen by Dr Archer (Neurologist) on

26 July 2020 when he had a history over some months or more of blank spells.

Dr Archer wondered about a post-traumatic seizure disturbance but he had just as little information as I do now and came to no conclusions. He did arrange an electroencephalogram which was reported as being normal and it is said that Mr Darlow has had a prolonged ambulatory EEG which was also normal. It is said that Mr Darlow has cognitive difficulties but I do not know that these have ever been properly assessed by a neuropsychologist. When he was seen by Hannah Lewis (Occupational Therapist) on 16 October 2021 he seemed to be able to answer questions appropriately while performing manual tasks at the same time.
[10] Refer NDIA’s HTB, Pages 466-7.
At the hearing, Dr Walker said there was “some bruising of the left temporal lobe in that accident, so it was a genuine traumatic brain injury” and a history of some “spinal wedge fractures”.[11] Mr Darlow has a leg length discrepancy. Dr Walker considers this may be contributing to Mr Darlow’s back problems.
[11] Refer Transcript 10/12/2021, P-143.
In Mr Darlow’s Closing Submissions, he states that one of the effects of his claimed ABI is that he does not “have a thirst” and that he needs to be “promoted to drink to hold the syncope events at bay”. The Tribunal understands this to mean that Mr Darlow is suggesting he needs to be prompted to drink by others to prevent him from syncope events (that is, from fainting).
Mr Darlow is obese and has a body mass index in the vicinity of 40.[12] At the hearing, Mr Darlow said he had gained weight gradually from March 2019 and that he weighed 125 kg. Mr Darlow said he was on weight loss injections, Ozempic to suppress his appetite,[13] and on a waiting list for gastric sleeve surgery.
[12] On 30 June 2021, Mr Darlow’s treating general practitioner recorded his height as 170cm and weight as 117kg. At a directions hearing on 13 October 2021, Mr Darlow confirmed that he suffers from obesity – Refer Transcript Directions Hearing 13/10/2021, P-15.
[13] Refer Transcript, P-51.
Mr Darlow suffers from OSA, for which he says he is compliant with using a CPAP machine to assist him to sleep. Dr Walker states in his report that Mr Darlow’s OSA is not caused by any ABI.[14]
[14] Refer NDIA’s HTB, Page 467.
Mr Darlow has been diagnosed with cardiomyopathy. In a letter from Dr Kon Profitis, Cardiologist, he states that Mr Darlow’s only main symptom is fatigue, which the doctor opined is “multifactorial”.[15]
[15] Ibid, Page 805.
In Dr Walker’s Report, he summarises Mr Darlow’s history of having cardiomyopathy as follows (emphasis added):[16]
This was discovered in about 2019 when he had some abnormal scans. He has seen Prof Profitis or one of his associates on a number of occasions. His report dated 23 December 2020 indicates that he had a reduced left ventricular ejection fraction compared with the same study in 2019. He was not on any cardiac medications until 2020 when he was commenced on Bisoprolol and Perindopril. He had some exertional dyspnoea but when he was later reviewed in June 2021, he had no coronary artery disease as such. His Perindopril was changed more recently to Entresto because of low blood pressure readings.
[16] Ibid, Page 466.
Mr Darlow claims that his energy levels have decreased and his ability to walk has decreased due to the cardiomyopathy. He also claims that his ability to perform actions requiring fine motor skills has decreased, due to the tiredness in his arms.[17]
[17] Refer Transcript, P-46.
Dr Alexander told the Tribunal that Mr Darlow’s cardiomyopathy meant that he has less endurance from regular activities compared to an average person of Mr Darlow’s age.[18] She also said that Mr Darlow’s “dilated cardiomyopathy” might make it harder for him to sustain his arms in a raised position for a long period of time, but she said she did not have enough information to make a full comment.[19]
[18] Ibid, P-107.
[19] Ibid, P-104.
Mr Darlow told the Tribunal how extremely concerned he was about the diagnosis of cardiomyopathy. He said he wants to be accompanied by a support worker to his competition table tennis matches, in case something happens to him, and he requires immediate assistance. However, at the hearing, Dr Alexander told the Tribunal that Mr Darlow is not at risk of an acute cardiac event.[20] The Tribunal accepts Dr Alexander’s evidence in this regard.
[20] Ibid, P-109.
Mr Darlow experiences urinary incontinence, reportedly at a frequency of about twice a month, and faecal incontinence which he described as “very rare”.[21] He said he does not use continence aids at home but always wears continence aids when out in public.[22] He said he self-catheterises about once a week.[23] Dr Alexander said it is unclear why Mr Darlow’s bladder is “overactive”.[24] Botox has been used and is reported to have been highly effective in improving Mr Darlow’s continence.[25] At the hearing, Mr Darlow said the Botox helps him to manage the incontinence but has not cured the problem.[26]
[21] Ibid, P-200.
[22] Ibid.
[23] Ibid, P-201.
[24] Refer Transcript, P-115.
[25] Refer NDIA’s HTB, Page 645.
[26] Refer Transcript, P-200.

Mr Darlow says that he suffers from funny turns or blank spells from time to time. Mr Darlow claims that his cognitive function is also impaired. However, Mr Wall gave evidence at the hearing that Mr Darlow has “above average intelligence” in the “performance area” of IQ, but his major problem is that “sometimes” emotional regulation takes over his cognitive functioning.[27] It was not apparent to the Tribunal, from the way Mr Darlow’s ably represented himself at the hearing of this matter, has engaged with online activities (which the Tribunal acknowledges he says took him 18 months to learn),[28] and the buying, fixing, and reselling (at a profit) of several motor vehicles, that he suffers from any cognitive functional impairment. Mr Darlow intermittently displayed agitation at certain points during the hearing but was able to regulate his approach to the Tribunal and remained respectful and polite throughout virtually all the hearing.
[27] Refer Transcript, P-125.
[28] Refer Mr Darlow’s Closing Submissions.
Mr Darlow claims to have significant impacts from an ABI, but this was not supported by a report prepared by neuropsychologist, Ms Sara Fratti, dated 20 January 2015, which concluded that his “attentional ability was intact” and his memory was not abnormal.[29] Ms Fratti opined that Mr Darlow’s psychological, or emotional distress, may have a more significant impact upon him (than ABI deficits) in his day-to-day functioning. As highlighted by the NDIA, Ms Fratti characterised Mr Darlow’s ABI deficits as “mild” and she opines as follows in her report:[30]
Overall, his attentional ability was intact and his memory, although mildly reduced for visual information, was not abnormal. Quite the opposite, Mr Darlow’s memory and attention were all within expected ranges of premorbid functioning, which indicated a complete recovery of these functions post-injury. In addition to this, his reported use of notes and reminders, including structured daily routines, appeared to have helped him to compensate for his difficulties in day-to-day tasks.
[29] Refer Ms Fratti’s Report dated 20 January 2015, page 5.
[30] Ibid.
The Tribunal accepts the opinions of Ms Fratti given her area of speciality and there were subsequent assessments by a neuropsychologist to challenge this evidence.
Ms Richardson administered a Montreal Cognitive Assessment 8.1 (MOCA 8.1) to Mr Darlow on 4 November 2021.[31] He achieved an overall score of 23/30. A score of 26 or higher is considered to be “normal”. Mr Darlow achieved full scores for his attention, abstraction, and orientation; 3 out of 5 for visuospatial/executive function; 2 out of 3 when naming different types of animals; 1 out of 3 for language reflecting mild impairment in working memory and executive function; and 4 out of 5 for delayed recall. Ms Richardson’s conclusions from undertaking this assessment are as follows (noting Ms Richardson is not a neuropsychologist) (emphasis added):[32]
The results from this standardised assessment indicate mild impairment of memory and executive function. Anthony appears to perform better in tasks involving numbers. He consistently demonstrates impairment in relation to paying attention to detail. These results reflect the difficulties that Anthony experiences in day-to-day function in terms of information retention, remember to take his medication and difficulties associated with being able to correctly fill his medication dosette.
[31] Refer NDIA’s HTB, Page 405 & 406.
[32] Ibid, Page 374.
Dr Walker in his report, was asked to comment about Mr Darlow’s general cognitive function. He notes there is no objective measurement of his cognitive function from a neuropsychologist and that “from the recent information provided by Ms Lewis just recently”, Mr Darlow’s cognitive function “did not seem to be a major problem”.[33] When asked to identify the primary cause of any assessed cognitive impairment, Dr Walker provided the following opinion:[34]
It has been implied that his impaired cognition relates to a traumatic brain injury but I have no evidence that this is or is not the case. Cognitive function may be impairment [sic] by many other factors which in Mr Darlow’s case would include his mental health issues, obstructive sleep apnoea, and past alcohol excess.
[33] Ibid, Page 468.
[34] Ibid.
Dr Walker was also asked to comment on whether Mr Darlow’s cognition impacts on his performance of daily tasks. Dr Walker seemed doubtful, based on his comments as follows:[35]
Mr Darlow states that he has mildly reduced short term memory, reduced planning and initiation of tasks, and reduced problem solving. He also implies that it has caused minor speech disturbances and “extreme muscle weakness resulting in wheelchair dependence”. These latter two complaints are illogical in the extreme and the first three have not been quantitated or even proven objectively. Mr Darlow’s complaints are very largely subjective.
[35] Ibid.
Mr Wall wrote a letter dated 24 September 2020 (Mr Wall’s Letter) which states that he had treated Mr Darlow for the past four years (that is, since about 2016), having 10 sessions with him (being the number of sessions permitted by Medicare per annum on a Mental Health Plan).[36] At the hearing, Mr Wall told the Tribunal that Mr Darlow had been diagnosed with depression and post-traumatic stress disorder (PTSD).[37] In Mr Wall’s Letter, he referred to Mr Darlow’s obsessional behaviours. At the hearing, Mr Wall referred to Mr Darlow experiencing social anxiety, lack of motivation, very low self-esteem and that he has a sense of hopelessness. Mr Darlow said he felt like a “duck out of water” in social situations.[38] Mr Wall said Mr Darlow could be impulsive due to the PTSD, making both intimate and non-intimate relationships difficult for him; and that he could make some “poorly thought-out decisions at time”.[39]
[36] Refer T-Documents, T4/43.
[37] Refer Transcript, P-120.
[38] Ibid, P-55.
[39] Ibid, P-121.
Mr Wall considered that Mr Darlow had suffered a major decline in the last year after his diagnosis of a heart disorder and the difficulties he had experienced with his now ex-partner.[40] During the course of this proceeding, Mr Darlow’s relationship with his ex-partner ended, and he told the Tribunal he had moved out of her mother’s home where they had been living together. Dr Alexander said she had observed that Mr Darlow’s mental health had suffered a lot in the last year, after his diagnosis of cardiomyopathy. Dr Alexander mentioned that Mr Darlow had required higher levels of medication for his depression.[41]
[40] Ibid.
[41] Ibid at P-108.
In June 2021, Mr Darlow attended the Emergency Department at a hospital voicing suicidal ideation, following which there was some engagement with him by the Crisis Assessment and Treatment Team (CAT) Team.[42] Mr Darlow told the Tribunal that his support workers assist him with monitoring his mental health, and they provide him with emotional support and companionship.[43]
[42] Refer NDIA’s HTB, Page 1,389.
[43] Refer Transcript, P-32.
History of Mr Darlow’s participation in the NDIS
Mr Darlow became a participant in the NDIS in about 2016 or 2017.[44] Before that time, he received disability-related supports under a program offered by the Victorian Government.
[44] According to the Respondent’s SFIC at paragraph [6], it was 2017. In Mr Darlow’s Closing Submission, he says he has been a participant since 2016/2017. Nothing turns on it.
On 19 November 2020, a delegate of the Chief Executive Officer of the NDIA (CEO) approved a statement of participant supports (SOPS) for Mr Darlow.[45] Approval was given in this SOPS for total funded supports of $43,532.06 to cover a notional plan period of one year (comprising $22,762.32 of Core Supports and $20,769.74 of Capacity Building Supports).[46] Mr Darlow sought an internal review of this decision by a “reviewer” under s 100(6) of the NDIS Act.
[45] Refer NDIA’s HTB, Pages 89-96.
[46] Ibid, Page 93.
On 20 April 2021, the “reviewer” made an internal review decision under s 100(6) of the NDIS Act.[47] Mr Darlow lodged an application for review of the NDIA’s internal review decision.[48]
[47] Ibid, Pages 13-22.
[48] Ibid, Pages 7-11.
During this proceeding, as further evidence and information about Mr Darlow came to light, the NDIA became satisfied that some additional supports were “reasonable and necessary supports” and should be funded and provided to Mr Darlow. The Tribunal remitted this application on a few occasions under s 42D of the AAT Act to allow for new SOPS to be approved by the NDIA. The last remittal resulted in the approval of a SOPS for Mr Darlow which commenced on 14 January 2022 (as referred to in paragraph [6] above). This SOPS forms part of Mr Darlow’s current NDIS plan.[49]
[49] Refer email from NDIA received on 2 December 2022 confirming that the SOPS dated 14 January 2022 has remained Mr Darlow’s current SOPS.
Current approved supports for Mr Darlow
The current SOPS for Mr Darlow covers a period of one year and includes total funded supports of $77,950.69 as follows:
(a)Total Core Supports funding of $49,062.62 comprising:
(i)Consumables (low-cost AT and continence package): $2,314.08;
(ii)Daily Activities (assistance with self-care activities – standard – weekday daytime – 442 hours per annum (equal to 8.5 hours per week for 52 weeks): $25,295.66;
(iii)Social Community and Civic Participation (Access community, social and recreational activities – weekday evening – 6 hours per week for 52 weeks): $19,652.88; and
(iv)Transport: $1,800;
(b)Total Capacity Building Supports funding of $25,078.84 comprising:
(i)Choice and Control – Plan management agency: $1,485.75;
(ii)Support Coordination – Level 2 support coordination – 36 hours per annum: $3,605.04;
(iii)Daily Activity – Provision to a participant of assessment (AT or functional capacity or other assessments), recommendations for supports, undertake therapy or training (including in assistive technology) supports – other therapy – 30 hours once: $5,819.70;
(iv)Daily Activity – Provision of assessment (AT or functional capacity or other assessments), recommendations for supports, undertake therapy or training (including in assistive technology) supports – physiotherapy – 14 hours once: $2,715.86;
(v)Daily Activity – Provision of assessment (AT or functional capacity or other assessments), recommendations for supports, undertake therapy or training (including in assistive technology) supports – psychology – 16 hours once: $3,430.56;
(vi)Daily Activity – Selection and/or manufacture of customised or wearable technology – 6 hours once: $1,163.94;
(vii)Daily Activity – Exercise physiology – 26 hours once - $4,341.74;
(viii)Daily Activity – Individual assessment and support by a nurse – 3 hours once: $372.15;
(ix)Relationships – Specialist behavioural intervention support – 10 hours once: $2,144.10;
(c)Total Capital Support funding of $3,809.23 comprising:
(i)Assistive Technology - Funding of $2,809.23 for orthoses for four pairs of shoes, application of an external raise to the right shoe to four pairs of shoes, and custom foot orthoses; and funding of $1,000.00 for an ergonomic desk and chair, assistance must be sought from an Assistive Technology Assessor when choosing a suitable office desk and office chair.
LEGISLATIVE FRAMEWORK
The NDIS was established under the NDIS Act and operates in pursuit of the objectives set out in s 3. Section 4 establishes general principles guiding actions to be taken under the NDIS Act. Persons with disabilities may apply to become a participant in the scheme, subject to certain eligibility requirements.
A participant’s plan is prepared in accordance with the NDIS Act, and the regulations made under s 32A of the NDIS Act. The supports described in the SOPS must be approved in accordance with the NDIS Act, and any regulations made under the NDIS Act, such as the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports for Participants Rules).
Section 31 of the NDIS Act establishes a set of general principles that apply to the “preparation, review and replacement” of a NDIS participant’s plan, as reproduced below. These principles have been considered by the Tribunal.
31       Principles relating to plans
The preparation, review and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:
(a)be individualised; and
(b)be directed by the participant; and
(c)where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(d)where possible, strengthen and build capacity of families and carers to support participants who are children; and
(da)if the participant and the participant’s carer agree – strengthen and build the capacity of families and carers to support the participant in adult life; and
(e) consider the availability to the participant of informal support and other support services generally available to any person in the community; and
(f)    support communities to respond to the individual goals and needs of participants; and
(g) be underpinned by the right of the participant to exercise control over his or her own life; and
(h) advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i)   maximise the choice and independence of the participant; and
(j)   facilitate tailored and flexible responses to the individual goals and needs of the participant; and
(k) provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.
Section 31 of the NDIS Act sets out several principles which apply when an NDIS plan is developed for a participant. The plan is the instrument that sets out the participant’s goals and aspirations, governs the funding the participant is entitled to receive under the scheme, establishes the notional period for the plan, and how that funding should be managed.
An NDIS plan does not take effect until a SOPS forming part of the plan has been approved by the CEO under s 33(4) of the NDIS Act. Specifically, s 33 of the NDIS Act sets out certain matters that must be included in a participant’s plan, including the participant’s statement of goals and aspirations (s 33(1)) and a SOPS, which is prepared with the participant and approved by the CEO in accordance with s 33(2)).
Section 33(5) of the NDIS Act requires that the CEO, in deciding whether to approve the SOPS under s 33(2), must:
(a) have regard to the participant’s statement of goals and aspirations;
(b) have regard to relevant assessments conducted in relation to the participant;
(c) be satisfied as mentioned in s 34 of the NDIS Act in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided;
(d) apply any methods and have regard to any criteria prescribed by the NDIS rules in relation to the manner in which the reasonable and necessary supports will be funded;
(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.
Section 34(1) of the NDIS Act provides as follows:
34 Reasonable and necessary supports
(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 [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 reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(2)The [NDIS] rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
Section 33(5)(d) of the NDIS Act requires that the Supports for Participant Rules be applied in the making of a decision to approve a SOPS.
The Tribunal also notes the observations of Mortimer J in McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle) at [43] as follows:
The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) and (7) constrain the rule-making power to preserve the federal characteristics of the NDIS. The [Supports for Participant Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.
The NDIA has issued policy guidance in relation to “reasonable and necessary supports” under s 34(1) of the NDIS Act.[50] The Tribunal will consider this guidance in making this decision and will apply this guidance unless to do so would be inconsistent with the NDIS legislative scheme.
[50] Refer Reasonable and necessary supports | NDIS
CONSIDERATION
The Tribunal will now address the evidence and submissions of the parties in respect of each of the mandatory criteria under s 34(1) of the NDIS Act regarding each of the Requested Supports remaining in dispute as between the parties.
Section 34(1)(a) – whether the Requested Supports will assist Mr Darlow to pursue his goals, objections, and aspirations
Paragraph 34(1)(a) of the Act requires that “the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations”.
Support worker assistance
Mr Darlow’s goals, objectives and aspirations are recorded in his NDIS Plan and include:[51]
(a)to be supported to improve his mental and physical health;
(b)to be supported to develop his “independent living skills surrounding budgeting and planning”;
(c)to be able to access activities of interest to him within the community; and
(d)to obtain part-time employment.
[51] Refer Mr Darlow’s NDIS Plan dated 14 January 2022 on page 3.
Mr Darlow’s support workers presently assist him to carry out many ADLs in his home and they accompany him on outings within the community. On this basis, the Tribunal is satisfied that funding for support worker assistance will assist Mr Darlow to pursue his goals, objectives and aspirations as referred to in subparagraphs [62(a) and (c)] above.
Subsidy for CPAP machine

The Tribunal is satisfied that this support would assist Mr Darlow to pursue his goal, objective and aspiration as referred to in subparagraph [62(a)] above, that is, to be supported to improve his mental and physical health. The Tribunal will return to this support when considering whether it is most appropriately funded under the NDIS or more appropriately funded under the general health system.
Ergonomic chair and desk
The Tribunal accepts that Mr Darlow experiences some difficulty with his spinal function which can make it difficult for him to remain in a seated position for a long time, and that he would be assisted if he were provided with an ergonomic chair and desk. The NDIA agrees that Mr Darlow should be provided with this equipment but $1,000 should be provided for the purchase of both these items. The Tribunal will come back to this issue when considering the “value for money” criterion in respect of this support below. The Tribunal is satisfied that the provision of an ergonomic chair and desk will assist Mr Darlow to pursue his goals, objectives, and aspirations, as referred to in subparagraphs [62(b) and (d)]. The provision of an ergonomic chair and desk will make it possible for Mr Darlow to undertake activities at a desk which will assist him to pursue opportunities in online business enterprises and to use his computer which will allow him to attend to matters involving his budgeting and planning.
Section s 34(1)(b) – whether the Requested Supports will assist Mr Darlow to undertake activities to facilitate his social and economic participation
The Tribunal must be satisfied that the Requested Supports will assist Mr Darlow to undertake activities to facilitate his social and economic participation. The Tribunal is satisfied that all three of the Requested Supports meet this criterion for the reasons referred to above: because the support worker assistance will assist him to access the community; the use of the CPAP machine will assist him to sleep, which will in turn assist him to have the energy and mindset to be able to be engaged in social and economic activities; and the ergonomic chair and desk will assist him to be able to work at a desk which in turn, will help him to engage in economic activities such as his online business enterprises (specifically, the “bot building” Mr Darlow spoke about during the hearing).
Section 34(1)(c) - the Requested Support represents “value for money”
The Tribunal must be satisfied the Requested 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.
Rule 3.1 of the Support Rules provides as follows, as relevant:
Value for money
3.1 In deciding whether the support represents value of money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of the 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);
…
(e) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports …
Support worker assistance
Mr Darlow’s evidence is that he requires support worker assistance as follows:[52]
(a)on Mondays, he plays table tennis, and he states his support worker will attend with him. He states he cannot attend alone due to his medical conditions. He referred to his support worker also attending medical appointments with him and assisting him to dispense his medications for the week;
(b)on Tuesdays, his support worker will assist him to attend some hospital appointments and hydrotherapy for four hours (to assist with some exercises). He said the exercise physiologist is with him for one hour during hydrotherapy;
(c)on Wednesdays, he is assisted by the support worker with his grocery shopping, washing, housework and he might have some appointments, such as with his GP. He attends to a cardio program for one hour and meal preparation for the week with the assistance of a support worker;
(d)on Thursdays, he completes any meal preparation and household chores, may have some appointments, and attends another hydrotherapy session in the pool with the exercise physiologist;
(e)on Fridays, he “engages in community access” such as attending bowling, going to the movies, or playing games with the support worker. He states he could also have some other appointments;
(f)on the weekends, he states that he will “do his own thing” and will not be assisted by support workers. He states that he cannot shower on those days.
[52] Refer Mr Darlow’s answers to questions at NDIA’s HTB, Pages 470, and Mr Darlow’s SLE, NDIA’s HTB, Pages 474 & 475.
In Mr Darlow’s SLE, he states that on a good day, he is “pain-free, emotionally okay, anxiety level low, low social isolation, depression at a minimal, positive thinking and enabled ability”.[53] On a bad day he states he has “pain, emotionally unstable, high anxiety levels, frequent suicidal thoughts, being short fused and getting frustrated at not being able to bend down or do anything for” himself.[54] He states he has 5 good days and 25 bad days over the course of a month.[55] He also asserts that he needs assistance, due to his disabilities, with all his ADLs.[56]
[53] Refer NDIA’s HTB, Page 475.
[54] Ibid.
[55] Ibid.
[56] Ibid.
Mr Darlow states that he requires help getting to appointments and that his anxiety is “so bad” that he can “freeze” if he is alone.[57] He states he can drive but has not done so for six months.[58] He states there is a restriction on his driver’s licence that he must wear glasses or contact lenses. Mr Darlow states that he does not own a car.[59] He states he does not have a “walker” and that he uses a crutch and knee/ankle/back brace “sometimes”, as “prescribed by WorkCover years ago”.[60]
[57] Ibid.
[58] Ibid, Page 476.
[59] Ibid.
[60] Ibid.
In Mr Darlow’s SLE, he states he cannot drive because of his heart condition.[61] At a directions hearing on 13 October 2021, Mr Darlow told the Tribunal that he did not own a car and that his partner (at that time) or his support workers would drive him when he needed to travel;[62] and that he would travel about 100km per fortnight depending upon what appointments he needed to attend.[63]
[61] Ibid, Page 475.
[62] Refer Transcript 13/10/2021, P-6.
[63] Ibid, P-5.
In Mr Darlow’s Closing Submission he highlights that he has been an NDIS participant since 2016/2017 and that it has only been in the last 12 months that he has required the support of support workers. Mr Darlow considers this to be a “testimony in itself of how independent and bloody minded” he is. Mr Darlow states that it is only now that he is requesting care on weekends, and it has been and continues to be a huge daily struggle for him to ask for and accept help but to also come to terms with the fact that he needs help. He says he needs help on the weekend because he is living on his own in a private rental and he feels that weekend care is needed due to his underlying medical conditions.
In Mr Darlow’s Closing Submissions, he confirms that he is requesting support worker assistance of 33 hours per week. He states he is not seeking sleepover support worker assistance and that “82% of the 33 hours requested per week are at the base rate of $57.10 per hour and only 6 hours per week are requested at $62.80 per hour”. Mr Darlow highlights that an increase in support hours “from 18 hours to 30+ hours” was not sought by him until June 2021, after his trip to Perth.
Mr Darlow’s trip to Perth, and then Exmouth, had not been mentioned by Mr Darlow in his statement of lived experience or at the hearing, before it was raised by Ms Moir at the hearing during cross-examination of Mr Darlow. The medical records incorporated within the NDIA’s HTB,[64] show that Mr Darlow had been admitted to Maroondah Hospital overnight on 16 May 2021 after presenting with sharp left-sided radiating back pain, shortness of breath and diaphoresis. The following statement was made in the discharge summary for this admission (emphasis added):[65]
Also comments that he had some swelling in his right leg a fortnight ago when had driven to Perth.
Swelling eased, but then returned on drive back to Melbourne from Perth.
[64] Refer NDIA’s HTB, Page 574.
[65] Ibid.
A clinical note dated 17 May 2021, also contained the following statements:
Drove back from Perth 1/52 (last Sunday)
While driving from Perth to Exmouth developed right leg swelling relieved by compression bandage.
Right leg swelling on return to Melbourne – now resolved.
Well over last 1/52 – Yesterday 1600 was working on car – developed sudden chest..pain..
At the hearing, Mr Darlow was questioned about whether he had driven from Melbourne to Perth and back again, in May 2021. Mr Darlow acknowledged making the trip. He said he managed it by taking frequent rest stops every half hour, and by staying in motels instead of camping.[66] He denied doing the driving and said that his ex-partner had driven.[67] When questioned about this on the first day of the hearing, Mr Darlow did not mention that once he arrived in Perth, he took another long-distance trip from Perth to Exmouth, and back to Perth again. This was confirmed by Mr Darlow on the third day of the hearing, when he was recalled to give evidence, after Mr Wall had mentioned on the second day of the hearing, details of Mr Darlow’s travel in Western Australia. Mr Darlow confirmed that he had made the trip from Perth to Exmouth with his 84-year-old uncle and his ex-partner and that they had both gone fishing, but Mr Darlow had not. He said that his uncle and ex-partner had driven and that his uncle still had a driver’s licence.[68] Mr Darlow said they made a five- or six-hour drive to Nanga Bay where his uncle lives, stayed there for four days, then drove another four or five hours to Ningaloo and stayed there for one week. He said they then went to Exmouth, which was about 40 minutes’ drive from Ningaloo. Mr Darlow was asked by the Tribunal why he did not mention this extension to his trip when he was giving evidence on the first day. Mr Darlow answered, “I wasn’t asked about it”. When asked whether there were other things that he had not shared with the Tribunal about that trip, such as other travel, Mr Darlow answered “No”. The Tribunal lacks confidence in the truthfulness of Mr Darlow’s evidence. The matters set out below in paragraphs [110] to [118] of these Reasons for Decision show that Mr Darlow has a propensity to tell falsehoods to protect his interests in this application. The Tribunal rejects Mr Darlow’s evidence that he did not undertake any of the driving on the trip from Melbourne-Perth-Exmouth-Perth-Melbourne. It prefers the evidence in the form of the clinical notes referred to above, indicating that Mr Darlow had driven to and from Perth and then from Perth to Exmouth. On the balance of probabilities, the Tribunal finds that Mr Darlow shared the long-distance driving to and from Melbourne to Perth and to and from Perth to Nanga Bay with his ex-partner and from Nanga Bay to Exmouth and back to Nanga Bay, with his uncle and ex-partner. The Tribunal acknowledges that he experienced some leg swelling consequently, but his ability to make such a long trip, and to share the driving, indicates that the degree of Mr Darlow’s impairments are not as severe as he reports them to be.
[66] Refer Transcript, P-43.
[67] Ibid.
[68] Ibid, P-192.
Mr Darlow asserts that his heart function has decreased from 40% to 35% and that the extra hours he is seeking are reasonably needed due to the significant changes in his circumstances. Mr Darlow states that on 2 February 2022 he was informed by his cardiovascular specialist at Box Hill Hospital that his ejection fraction needed to be above 40% for him to be cleared to drive.
In Mr Darlow’s Closing Submissions, he highlights that he has had two hospital admissions for mental health issues, two submissions to the CAT team, and multiple medical diagnoses including, but not limited to, his heart condition and hypersomnia. He contends that due to these diagnoses of the medical conditions, he has an increased need for further medication, which as a result, he says, has taken a toll on his mental health and physical health. He contends that this “outlines the necessity and the need for support workers” as specified in “my OT report dated April 2021 of 33 hours per week”.
In Mr Richardson’s First Report prepared in June 2021 she recommended that Mr Darlow receive funding for “a minimum of 30 hours carer support per week to manage personal, domestic and community tasks”.[69]
[69] Refer NDIA’s HTB, Page 319.
In Ms Richardson’s Second Report, dated 5 November 2021, she states that Mr Darlow had been receiving OT services through Inspiro for the previous nine months. She notes Mr Darlow’s medical history as including an ABI, T6-T9 spinal wedge fractures, a shortened right leg length, cardiomyopathy, syncope, and an overactive bladder. She also says that he presented with impaired memory and that he had reported significant depression and anxiety.[70] Ms Richardson states that she had undertaken functional assessments of Mr Darlow over eight hours on 27 October 2021 and 4 November 2021 in his former home and in community environments.[71] Ms Richardson also gave evidence at the hearing.
[70] Ibid, Page 362.
[71] Ibid.
Ms Richardson reports that Mr Darlow:[72]
[72] Ibid.
(a)is independently mobile;
(b)has limited endurance and experiences shortness of breath, such that he requires frequent rest breaks when ambulating and is unable to stand in one position for more than 10 minutes;
(c)requires the support of carers to manage ADLs due to fatigue, pain, upper limb weakness, reduced range of movement in his back, shoulder, and shortness of breath;
(d)reports needing support in relation to self-control and emotional regulation;
(e)reports being unable to process more than one piece of information at a time;
(f)experiences occasional confusion and reports significant agitation/anxiety when accessing the community;
(g)reports that he is no longer driving as he is at high risk of experiencing a medical event and is fearful of potentially injuring himself and others;
(h)(at the time of the assessment) was living with his partner in a home owned by her parents and that it was his intention to separate from her, and move into a home of his own;
(i)reports a deterioration of both his health and function over the past six months primarily in relation to a decline in cardiac function; and
(j)reports considerable fatigue, anxiety and suicidal ideation which has impacted on his ability to undertake numerous aspects of personal, domestic and community ADL.
Ms Richardson described the number of hours being utilised by Mr Darlow as being 33 hours per week, and states that in her opinion those number of hours of support worker assistance should not be reduced. Specifically, Ms Richardson summarised her assessment of Mr Darlow as follows:[73]
Anthony experiences difficulty with many aspects of personal, domestic and community ADL resulting in the need for carer support. He is an active participant in each of the activities undertaken with his carers and he tries to manage as much as he can independently. Having access to the support of carers allows Anthony to participate in activities of benefit to him including table tennis, hydrotherapy and social outings. It allows him to continue to manage as independently as possible with personal, domestic and community tasks previously supported by his partner and it allows him to function as safely as possible while accessing the community. It should be noted that a reduction in carer support has the potential to compromise Anthony’s ability to safely manage self-care, domestic and community tasks. It may also have the potential to result in a further decline of function both socially and emotionally.
[73] Ibid, Page 382.
A key issue arose in this proceeding as to whether the level of support worker assistance requested by Mr Darlow, that is, the number of hours he has requested and the time of the day he has sought such support, represented “value for money”. The comparable or alternative support in this instance, which the NDIA contends will achieve the same outcome for Mr Darlow, is the provision of support worker assistance at the level specified in his current SOPS, being the 14.5 hours per week as described in paragraph [6(b)] of these Reasons for Decision. Mr Darlow has requested 33 hours per week[74] and to include services after 8pm (and before midnight) on Mondays and Fridays and before 8pm on Tuesdays, Wednesdays, and Thursdays.
[74] Refer Mr Darlow’s Closing Submissions.
The NDIA accepts that 14.5 hours per week of support worker assistance with ADLs and social, community and civic participation is “reasonable and necessary, on the basis of the recommendations made by Ms Lewis”.[75] The NDIA contends that funding any more than 14.5 hours per week is neither reasonable, nor necessary, and may pose a risk of harm to Mr Darlow in that it may create dependence and decrease his functional capacity over time.[76]
[75] Refer NDIA’s Closing Submissions at paragraph [118].
[76] Ibid, paragraph [119].
The substantive hearing was scheduled to commence on 8 December 2021. In preparation for the hearing, Ms Lewis was engaged by the NDIA to assess Mr Darlow. Mr Darlow objected to an in-person assessment and this issue was addressed by the Tribunal at directions hearings on 12 August 2021 and 13 October 2021. At the first of those directions hearings, Mr Darlow said that he did not trust an occupational therapist from the NDIA and suggested that she would not make a justified, fair, and unbiased assessment of him after seeing him on only one day; and that by contrast, he had spent “hours and hours” with his treating occupational therapist.[77] At the second of those direction hearings, Mr Darlow confirmed that he “utterly refuse[d]” to be assessed by the NDIA’s occupational therapist stating that there was “no point” and that he also would not consent to be examined by a neurologist appointed by the NDIA.[78]
[77] Refer Transcript Directions Hearing 12/8/2021, P-8.
[78] Refer Transcript Directions Hearing 13/10/2021, P-10.
The Tribunal requested whether Mr Darlow would agree to be interviewed by telephone by the NDIA’s occupational therapist, as an alternative to an in-person assessment; to which he somewhat reluctantly agreed. At the time this telephone interview took place, for part of it, Mr Darlow was in transit in his support worker’s car from his home to an appointment. Those circumstances were less than ideal for the occupational therapist to undertake her assessment, but she did her best to proceed with the telephone interview so that she could prepare her report as requested by the NDIA.
In Ms Lewis’ First Report she opines that the support Mr Darlow is seeking is “high”, given his reported comparative level of independence in personal care, domestic tasks, and cognitive performance.[79] Ms Lewis concluded as follows:[80]
Mr Darlow’s goals as stated in section 16 of this report can significantly be supported via short term or periodic therapeutic program, implemented via OT, exercise physiology or physiotherapy, vocational support program, and psychological intervention. Long term reliance upon formal supports (support worker model) as described in section 6.2.1 can often lead to long term dependence and a reduction in personal functional capacity. Whilst the support worker model clearly is required by Mr Darlow in some areas, I consider that his heavy reliance upon this current level of support may be contraindicative to his independent living potential.
[79] Refer Ms Lewis’ First Report at paragraph [18.2].
[80] Ibid at paragraph [18.4].

Following Ms Lewis’ assessment, she recommended that Mr Darlow should receive formal support comprising:[81]
(a)2 hours per week to assist with him with cleaning;
(b)2 hours per week to assist him to attend hydrotherapy;
(c)1.5 hours per week to assist him to attend table tennis;
(d)2 hours per week to assist him with his shopping (and to be used flexibly depending on what Mr Darlow would like to do each week);
(e)5 hours per week to assist him with his personal care; and
(f)2 hours per week to assist him with meal preparation.
[81] Refer Transcript, P-169.
Mr Darlow was critical that the functional assessment was conducted by Ms Lewis by way of telephone rather than in person and invited the Tribunal to disregard her opinions or to place less weight on them for this reason. The Tribunal does not consider it appropriate to do so, given the reason that Ms Lewis conducted the assessment in this way was because of Mr Darlow’s earlier objection to being assessed in person. Ms Lewis had access to the reports of Ms Richardson, including the record of her observations made of Mr Darlow. Ms Lewis had access to a range of other medical and clinical records relating to Mr Darlow. During the assessment by telephone, Ms Lewis was able question Mr Darlow about any matters about which she required clarification.
In those circumstances, the Tribunal considers it is reasonable for it to rely upon the observations and opinions of Ms Lewis in reaching its decision in this matter. A number of Ms Richardson’s reports were based on self-reports by Mr Darlow in any event. For instance, Ms Richardson had not made any direct observations of Mr Darlow undertaking the personal care activity of showering himself to demonstrate the extent of his capacity to undertake this task independently. In that regard, Ms Richardson needed to rely upon what Mr Darlow had informed her about his capability in this area. Accordingly, Ms Lewis’s opinions expressed about his support needs in that domain are as prima facie as valid as Ms Richardson’s opinions.
Mr Darlow asserted at the hearing that it was not possible to engage a support worker for less than a minimum of four hours per visit.[82] The General Manager of the support worker agency used by Mr Darlow provided a letter dated 9 February 2022 indicating that the agency is willing to provide support for a minimum of 3 hours per shift.[83] At the hearing, Ms Lewis told the Tribunal that she had worked with NDIS participants where their support workers came to visit in one-hour time slots and that she was unaware of any struggle to find agencies who were willing to provide one-hour shifts.[84] Mr Darlow has chosen the support worker agency referred to above and is very happy with the service being provided to him. Mr Darlow relied upon the principle that he should be permitted to exercise choice and control in relation to which agency he engages to provide him with support workers to assist him.
[82] Refer Transcript, P-169.
[83] Refer Transcript, P-8.
[84] Refer Transcript, P-169.
The NDIA contends, in response, that while choice and control are matters to be taken into account, it is incumbent upon the Tribunal to makes its assessment based upon the “reasonable and necessary supports” criteria set out in the NDIS Act. The Tribunal agrees. The NDIS Act is clear as to the criteria which are to be applied when deciding whether a support should be funded under the NDIS, and they are set out in s 34(1) of the NDIS Act. Wherever possible, there should be flexibility afforded in the plan for the participant to choose how they access their supports. For instance, while the funding will be calculated for Mr Darlow based on the level of supports the Tribunal considers meets the criteria, Mr Darlow will still be at liberty to make a choice about how he uses that funding over the course of a week (that is, whether he wants to use more funding on some days and less funding on other days). To that extent, Mr Darlow will have choice and control.
The NDIA accepts that the provision of some level of formal support is beneficial in assisting Mr Darlow to manage his mental health conditions. However, the NDIA contends that it is important to strike a balance between providing Mr Darlow with one-on-one support and ensuring that he has opportunities to develop capacity. The NDIA contends that there was evidence before the Tribunal that providing him with too much support “may foster dependency”. Specifically, Ms Lewis states as follows in her report:[85]
[l]ong term reliance upon formal supports (support worker model) … can often lead to long term dependence and a reduction in personal functional capacity. Whilst the support worker model clearly is required by Mr Darlow in some areas, I consider that his heavy reliance upon this current level of support may be contraindicative to his independent living potential.
[85] Refer NDIA’s HTB, Page 437.
Further, Ms Lewis gave evidence as follows (emphasis added):[86]
I would be concerned about the reliance on support workers to provide what I tend to see as a moral support. I would see that that kind of reliance upon formal supports leading to dependency and I would want to find alternative ways to support Mr Darlow with his emotions or his anxiety and depression. And group programs or other more formalised support programs might be a better recommendation.
[86] Refer Transcript, P-158.
The Tribunal agrees that the balance contended for by the NDIA in paragraph [94] must be struck; and that this would not be the case if support was provided at the level Mr Darlow is seeking. Ms Lewis states in her report that Mr Darlow is reliant upon his carers as his primary social outlet.[87] The Tribunal considers that the NDIS is designed to establish “reasonable and necessary” disability-related supports for its participants and should not be used, at the taxpayer’s expense, to provide companionship to a participant if they do not have many friends or family around them who would normally fill this role to ease their loneliness. There are many people in the community, without disabilities, of Mr Darlow’s age, who lack companionship and are lonely as a result, and they do not have access to taxpayer-funded supports to alleviate their loneliness. Those persons should seek out companionship in the usual manner, as others do in the community and/or attend community-based activities as appropriate to build up their social circle if this is something they desire.
[87] Refer NDIA’s HTB, Page 371.
The NDIA invited the Tribunal to bear in mind that one of the general principles guiding actions under the NDIS Act is that reasonable and necessary supports provided under the scheme should “support people with disability to pursue their goals and maximise their independence”.[88]
[88] Refer s 4(11)(a) of the NDIS Act with emphasis added.
Mr Wall gave evidence that he considered that the company of support workers would help to build Mr Darlow’s “emotional stability”; and in turn, this would assist Mr Darlow to manage his psychiatric conditions. Mr Wall said he was unable to express a view about how many hours of support worker assistance were appropriate for Mr Darlow. Mr Wall acknowledged that there may be better ways for Mr Darlow to avoid social isolation, but he said he did not think Mr Darlow was up to that, and that he needed support around him to “develop that”.[89] In this regard, Ms Lewis recommended group programs as an option for Mr Darlow to be supported to socialise; indicating that they are run by people who understand the difficulties that might arise from attendees who do not usually have the ability or initiative to create connections with others, and their main aim is to make people feel comfortable in a group environment.
[89] Refer Transcript, P-122.
The Tribunal would not place Mr Darlow in the category of being socially isolated out of proportion for a person of his age group who is not disabled. Mr Darlow plays table tennis in a competition weekly, for four and a half hours at a time. He does so with people whom, by his own evidence, he has known for a long time. Ms Richardson, in her report dated 5 November 2021, refers to Mr Darlow’s interest in meeting others who have participated in the online course he was undertaking at the time she prepared her report.[90] He is frequently visited by his support workers each week under the current level of funding approved by the NDIA, allowing him to access the community if he chooses to use the support workers for that purpose. He is also active in buying, fixing up motor vehicles and reselling them, as revealed for the first time at the hearing when he was questioned about documents produced by VicRoads under summons, indicating the several cars registered in his name and subsequently disposed of. This activity involves his attendance upon and interacting with car mechanics to assist him to fix up those cars, by Mr Darlow’s own evidence, and to interact with prospective buyers and sellers. Until recently, Mr Darlow had been in a relationship with his de facto partner and lived with her at her mother’s home, until their relationship ended. While the Tribunal accepts this may not be a social outlet for him any longer or at the present time, it would indicate that he is capable of developing significant relationships with others and he may well do so again into the future.
[90] Refer NDIA’s HTB, Page 371. This online course was later described as a course in the management of his finances – see Page 372.
The Tribunal acknowledges, from Mr Wall’s and Dr Alexander’s evidence and Mr Darlow’s Closing Submissions, that Mr Darlow has been through a lot in recent times and that he has a higher than usual need for emotional support presently. However, the Tribunal considers that Mr Darlow will receive an incidental benefit from having the visits from his support workers to assist him to optimise his mental health, at the same time as they are assisting him with his ADLs and occasionally, heavier household cleaning, as a result of his physical impairments. For this reason, the Tribunal is not satisfied that it would be “value for money” for additional standalone hours of support from support workers to be funded, solely for the purpose of providing him with companionship. The Tribunal accepts Ms Lewis’ evidence that Mr Darlow’s attendance at the community-based group programs run by persons skilled in the way she describes, would deliver the same outcomes for Mr Darlow, and perhaps be more effective at providing him with companionship and social interaction on an even footing (rather than by a person paid to do so), and to build Mr Darlow’s independence. These comparable supports would be more cost-effective than him receiving costly, NDIS funded, one-on-one companionship from his support workers to interact with him in a social capacity.
Mr Darlow also seeks assistance from support workers with several daily activities, which the Tribunal will now consider.
Assistance by a support worker to access the community
Mr Darlow contends that he requires support to accompany him to weekly table tennis competition on Monday evenings, to hydrotherapy twice per week, and to other places in the community such as to attend his appointments. He claims that he needs them to drive him and also to help him with his emotional regulation so that he does not have altercations with other members of the community.
Table tennis competitions on Monday evenings
A contentious issue arose in this matter as to whether Mr Darlow requires a support worker to accompany him to his weekly table tennis competitions. The NDIA considers that he does not need such support; and instead, he would achieve the same outcome of participating in table tennis by catching a taxi unaccompanied to and from the venue. The Tribunal notes that Mr Darlow currently receives funding of $1,800 as transport supports under his current SOPS, which could fund such trips.
At the hearing, Mr Darlow gave evidence that he started playing table tennis at the age of 13.[91] Ms Richardson states, in her report dated 5 November 2021, that Mr Darlow plays five games of table tennis between 7pm and 10.30pm. Each game consists of three sets, with each set taking about five minutes. There is a five-minute rest between each set.[92] Mr Darlow said that approximately 100 people will be present during the table tennis competition. He said that he has known some of the people at table tennis for over 30 years and Ms Richardson describes this activity as being physical and social for Mr Darlow.[93] In recent times, he has been accompanied by a support worker. When asked by the Tribunal, what the support worker did while he played table tennis at such events, he said that she sat against the wall.[94] Ms Lewis gave evidence at the hearing that she did not think it would be a good use of a support worker’s time for them “to sit idle”, and she would not be recommending it.[95]
[91] Refer Transcript, P-56.
[92] Refer NDIA’s HTB, Page 377.
[93] Refer Transcript, P-56 & P-165 and NDIA’s HTB at page 371.
[94] Refer Transcript, P-56.
[95] Refer Transcript, P-166.
Mr Darlow said he could not attend table tennis unaccompanied because of his cardiac condition and that he is at risk of an acute cardiac event. At the hearing, Mr Darlow said that if there was an emergency, his support worker would be able to administer first aid to him, and the support worker could relay information about his conditions and medications to the paramedics if an ambulance was called to assist him.[96] At the hearing, Ms Richardson gave evidence that Mr Darlow goes out with a support worker because he is fearful that something will happen to him while he is out.[97]
[96] Ibid, P-33.
[97] Ibid, P-98.
The evidence before the Tribunal, as highlighted by the NDIA,[98] does not reveal any logical or reasonable basis for Mr Darlow holding the fears he does at present about accessing the community independently or without the support of his support workers. Dr Walker and Dr Alexander both gave evidence to the effect that Mr Darlow is not at risk of an acute cardiac event arising from his cardiomyopathy, contrary to Mr Darlow’s earlier assertions to the Tribunal and to the occupational therapists who undertook functional capacity assessments of Mr Darlow.[99] Dr Walker also opined that there is no safety risk to a person suffering from pseudo seizures (Mr Darlow described them as “funny turns”) if they are to go into the community.[100] Further, Dr Alexander gave evidence that even though Mr Darlow was at a higher “falls” risk than an average person of his age, it was safe for him to go for a walk unaccompanied “as regards to falling”.[101] When Mr Darlow was asked whether he had ever fainted at table tennis, he answered “No”.[102]
[98] Refer NDIA’s Closing Submissions at paragraph [80].
[99] Refer Transcript, P-109, P-147 & P-148.
[100] Ibid, P-145.
[101] Ibid, P-118.
[102] Ibid, P-61.
Mr Darlow said there have been occasions where he has had to stop playing because of an asthma attack, a wheezy feeling, exhaustion or a knee injury; and at those times, he would take his asthma medication, Symbicort. He said this “mostly” relieved his symptoms.[103] The Tribunal considers that these are challenges that other people of Mr Darlow’s age might face at the competition from time to time and they do not warrant the immediate assistance from a support worker. When asked whether Mr Darlow could safely play tennis table unaccompanied, Dr Alexander told the Tribunal, “In terms of function, yes, and whether he is able to in terms of his mental health, I’m not sure”.[104]
[103] Ibid.
[104] Ibid.
In that regard, Mr Darlow has given evidence that he is concerned about his ability to stay emotionally regulated when accessing the community unaccompanied. He is concerned about his interactions upon encountering difficulties or conflict with others in the community. There is little evidence before the Tribunal about recent incidents where this has arisen as a problem for Mr Darlow.
However, the Tribunal acknowledges that Mr Darlow has been diagnosed with PTSD and anxiety, which may give rise to behavioural irregularities. Inconsistent with this diagnosis, the Tribunal observed Mr Darlow able to regulate his emotions effectively during the hearing process before the Tribunal, including at times when he was challenged about the veracity of the evidence he had given through a process of cross-examination by Ms Moir and questioning by the Tribunal. He became tearful at times when talking about the status of his mental health conditions and what was causing his anxiety; but was able to regain his composure and continue.[105] As mentioned above, Dr Walker was doubtful about whether it could be conclusively established that Mr Darlow has an ABI and was suffering the impacts of such a condition.
[105] Ibid, P-87.
On the first day of the substantive hearing on 8 December 2021, Ms Moir asked Mr Darlow whether the organisers of the table tennis competition had required him to have a support worker present. He answered “Yes, they have” and he said he was getting a letter stating that.[106] When asked whether they had provided Mr Darlow with a reason for this requirement, he said “Basically, a duty of care. They don't want the responsibility of someone with a heart condition and mental illness and all the conditions that I have to be under their responsibility. They want to pass the buck, basically”.[107]
[106] Ibid, P-60.
[107] Ibid.
The Tribunal notes the further exchange between the Tribunal and Mr Darlow about this (emphasis added):[108]
MR DARLOW: So basically, the way I understand it is my left side of my heart is not pumping properly and the medication is basically to try and thin my blood and make it easier for my heart to pump.
MEMBER: Yes?
MR DARLOW: Now, if I am not on medication I am going to die. I am going to suffocate to death, that's basically what the doctor said. Okay.
MEMBER: Right?
MR DARLOW: The fear of actually dying is probably very real. I've had tests in regards to the - and at the start I wasn't allowed to play table tennis. I wasn't allowed to exert myself but after some further investigations I think it was an echocardiogram.
MEMBER: Yes?
MR DARLOW: They basically said that my valves and everything else would be okay but I wasn't going to have a heart attack. So then I was able to go back to table tennis. But of course that came with conditions as well because table tennis have a duty of care. They can't have someone having a heart attack on the court. So they basically said, "Look, you know, we're happy for you to come back but we will give you constant rest breaks or rest breaks when you actually need them and we would like a support worker to be with you." The reason for the support worker is, as I said in my opening statement, is to be able to provide medical assistance if required, be able to relay my conditions and know my conditions off by heart like they know my conditions off by heart - off tap - to basically be able to relay this to the Emergency Services, which is exactly what happened on Monday night.
[108] Refer Transcript, P-48.
The Tribunal notes that Mr Darlow also told both Mr Richardson and Ms Lewis, when they undertook their functional assessments of him in 2021 before the substantive hearing of this matter, that he was required to have a support worker with him while he was at table tennis.
After the hearing, the parties successively lodged their closing written submissions. Mr Darlow took steps to obtain a letter from the table tennis association (TTA) confirming that this condition (of having a support worker attend table tennis with him) was imposed upon him. Specifically, an email dated 12 December 2021 by Mr GB, a board member of TTA, was produced to the Tribunal which referred to Mr Darlow’s request that TTA provide a letter and Mr GB states, “I am not quite sure of what you require. Can you explain what is needed, why it’s needed, etc”.[109] Mr Darlow replied to this email on the same day stating that he had been diagnosed with cardiomyopathy which can cause a syncope event (blood pressure to drop suddenly) and that he struggled from physical back, shoulder and leg issues. Mr Darlow states: “I wish to have a support worker at table tennis as they are aware of my medical conditions and medications I’m taking in the event that 000 needs to be called” and that “they also administer asthma meds and ensure fluid intake is ongoing if needed while I play”. Further, Mr Darlow states in this email:[110]
…I am not comfortable in playing without a support worker not only for my safety but the club as well. (Even though I understand there is trained first Aid there but it takes time for them to be notified and assist) So i would like to get a letter on letterhead saying that the club insist on me having a support worker whilst playing due to medical and physical requirements.
Could i possibly get this asap.
[109] Email by Mr GB, TTA, lodged with the Tribunal on 6 February 2022.
[110] Email by Mr Darlow, lodged with the Tribunal on 6 February 2022.

At a meeting of the TTA on 14 December 2021, the following resolution was made by the TTA committee (underlining emphasis added):[111]
Anthony Darlow – Support worker required
Anthony Darlow has written to the association requesting for CDTTA to request a letter that requires a support worker to assist with his heart cardiomyopathy and other medical conditions.
MM moves that CDTTA provides supporting documentation for Anthony Darlow to get a support worker, and that he not be able to participate without one.
WL seconded
Motion carries 5-3. AM to get in contact with Anthony to ensure he understands the possible ramifications of this, and then provided he understands, provide a letter from CDTTA supporting his case for a support worker.
[111] Refer Minute of Meeting dated 14 December 2022 lodged with the Tribunal on 28 January 2022.
Upon receiving Mr Darlow’s Closing Submissions and this new evidence, the NDIA made an application for the hearing to resume so that it could be heard on several new matters Mr Darlow had raised. The Tribunal granted this request, and the hearing was reopened and resumed. Arrangements were made for Mr GB to give evidence about the new evidence lodged by Mr Darlow regarding the imposition of a condition in relation to his participation in table tennis.[112]
At the resumed hearing, Mr GB told the Tribunal that TTA had not imposed any conditions upon Mr Darlow before 14 December 2021 requiring him to have a support worker accompany him to table tennis.[113] Mr GB added that TTA does not generally monitor the medical conditions of the participants in the competition, for the purpose of imposing such conditions.[114] This evidence revealed that Mr Darlow’s evidence to the Tribunal on 8 December 2021 that such a condition had been imposed was a falsehood. The Tribunal considers that Mr Darlow intention was to mislead the Tribunal (and also the occupational therapists who had assessed his functionality in late 2021), as to the basis upon which he was permitted by the TTA to participate in table tennis. Mr Darlow had sought to procure this evidence, when the Tribunal had asked Mr Darlow to provide this confirmation after the first day of the hearing. Mr Darlow made this false statement with the knowledge that it would assist him to achieve a favourable outcome in respect of his request for increased hours of support worker assistance.
[113] Refer Transcript 28/01/22, P-8.
[114] Ibid, P-9.
This false evidence given by Mr Darlow significantly discredits Mr Darlow’s evidence in this application. The Tribunal finds Mr Darlow to be an unreliable witness. The Tribunal considers that this demonstrates that Mr Darlow is prepared to be untruthful when giving evidence in order to achieve what he wants in this proceeding.
Further, given the contrived way in which the letter from the TTA was obtained, and the fact that it was based upon assertions made by Mr Darlow about his medical risks, which are not supported by his treating doctors, the Tribunal has decided to disregard the imposition by TTA of this condition as a factor in favour of meeting Mr Darlow’s request for a support worker to accompany him to his weekly table tennis competitions.
On balance, the Tribunal is satisfied that Mr Darlow is not at any special risk of harm if he accesses the community unaccompanied, compared to any other person of Mr Darlow’s age who does not have the same impairments. The Tribunal considers that by accessing the community without the assistance of a support worker, it is likely to serve Mr Darlow by fostering his independence, as suggested by Ms Lewis. He could do so by catching an Uber or taxi and minimise any potential for conflict by ensuring that he does not speak to the driver if he is worried about losing his temper with them, or by avoiding other persons he may meet if he is feeling agitated with them. If any conflict arises or the situation becomes challenging for whatever reason, and Mr Darlow is not confident about his ability to regulate his emotions on any given occasion, he may retreat. Further, Mr Wall can continue to assist him to develop and implement strategies in this regard, as he has done in the past. Further, for Mr Darlow’s weekly visits to the table tennis competition, he will be in the company of others, including some persons he has known for decades. Therefore, the Tribunal considers that the chance of any conflict arising in that environment is remote, and if it did, that he is in the company of longstanding friends or acquaintances who may come to his aid if needed.
As for Mr Darlow’s concern about something happening to him, and his not being able to inform paramedics of his conditions and medications if he does not have a support worker with him, the NDIA contends as follows:[115]
During the hearing, the Applicant said that he purchased a USB medical identification bracelet from Independence Australia around 12 months ago. He agreed that it was “probably an option” to put his medical conditions on the bracelet so that they could be known,[116] but said that he has not yet done this. On the basis that there is an available means of ensuring that his medical history is available to first responders in case of any emergency, it appears that it is not necessary for the Applicant to be accompanied by a support worker for the purpose of relaying that information.
[115] Refer NDIA’s Closing Submissions at paragraph [81].
[116] Refer Transcript, P-63, lines 7-30.
The Tribunal is not satisfied on the evidence that this component of Mr Darlow’s request for increased hours will achieve benefits for him that are unable to be achieved by Mr Darlow simply wearing his medical emergency bracelet, at no cost to Mr Darlow.
The Tribunal also finds that there is no medical justification for a support worker to be present based the matters set out above in paragraphs [34], [106] to [107]. The Tribunal does not accept that the attendance of a support worker is required so they can administer his Symbicort and ensure that he maintains his fluid intake (as suggested by Mr Darlow). Based on the medical evidence before the Tribunal, including the evidence as to mild impairment to Mr Darlow’s cognitive function (at best), the Tribunal considers that he is capable of attending to those matters independently of assistance from any other person; and he is at no special risk, compared to other persons of Mr Darlow’s age, of having an emergency event while he is playing table tennis. If a cardiac event does occur, Mr GB gave evidence at the hearing that they have a defibrillator in the stadium. Mr GB referred to their people only having had “very basic first aid knowledge” but he referred to them having had training to use the defibrillator and he intimated it has instructions on it. He said they have never had to use it and if they did, they would be calling “000” and an ambulance.[117]
[117] Refer Transcript 28/01/2022, P-8.
Based on the matters referred to above, the Tribunal finds that additional funding for a support worker to accompany Mr Darlow on community access visits each week does not represent “value for money”.
Hydrotherapy
Mr Darlow would also like a support worker to accompany him to hydrotherapy at a pool twice per week. When engaging in hydrotherapy, an exercise physiologist will be present in the pool with Mr Darlow for one hour during each visit. The Tribunal asked Mr Darlow at the hearing why he wanted both the exercise physiologist and his support worker present while he was doing hydrotherapy. Mr Darlow said that he wished to have both present because he had not disclosed some of his impairments to his exercise physiologist and he gave the following evidence:[118]
I "prefer" a support worker actually assisting with the holding of - you know, of the noodles, or - you know, tipping me on my back and all that sort of stuff because then the exercise physiologist is there to ensure that it's all done properly.
[118] Refer Transcript, P-184.
The Tribunal considers there is no need for Mr Darlow to be assisted by two persons while he is in the pool for hydrotherapy sessions, when his exercise physiologist is already in the pool with him. One person is sufficient. Mr Darlow gave evidence that there are four lifeguards at the pool facility, as it is “busy”. At the time when Mr Darlow is not in the pool, if he would like to be assisted with his showering, dressing and other personal care in relation to his lower body (as he is independent in respect of his upper body), Mr Darlow is at liberty to arrange for his support worker to make their visits to attend to his personal care needs at the time that he is attending the pool, as suggested by the NDIA. In this regard, the Tribunal accepts the contentions of the NDIA in its Closing Submissions at paragraph [117].
The Tribunal is not satisfied that additional funding to pay for a support worker to attend Mr Darlow’s hydrotherapy sessions as a standalone support represents “value for money” because he can receive the support of the exercise physiologist for the one hour during each visit that the exercise physiologist will be in the pool with him. Mr Darlow is also at liberty to arrange for his support worker to meet with him at the pool to undertake his daily personal care activities, instead of meeting him at his home on that day.
Shopping
In Ms Richardson’s Second Report, she records Ms Darlow’s “current status” as requiring assistance to remember items, reach items shelved down low, and to manage anxiety/inhibitions and provide redirection when agitated while he is shopping in the community.[119] Ms Richardson states that Mr Darlow finds shopping stressful, and feels on edge while in the community thinking that “something will happen”; and he feels more comfortable having a carer present in case he experiences a medical event. The Tribunal is not satisfied, based on the medical evidence of Mr Walker and Dr Alexander, that Mr Darlow’s concern about there being an acute medical event while he is in the community is justified. Mr Darlow may use his phone or a shopping list to remember items and may, independently or as assisted by his support workers before leaving home, prepare a shopping list. Mr Darlow may call upon the assistance of staff members in the supermarket to assist him to reach items which are low on the shelf. The Tribunal does not consider that funding for support workers to assist Mr Darlow with his shopping represents “value for money”.
[119] Refer NDIA’s HTB, Page 370.
Assistance with personal care activities
In Ms Richardson’s Second Report, she records Mr Darlow’s “current status” as being independent in feeding, toileting at home, and showering and dressing his upper body.[120] Ms Richardson notes in her Second Report that Mr Darlow “can” require assistance when toileting in the community, and that he requires assistance when washing his hair; washing, drying, and applying cream to his lower legs and feet; lower body dressing; shaving; and medical management (because Mr Darlow’s carers have indicated he requires assistance with filling his dosette box because he makes mistakes).[121]
[120] Ibid, Page 366.
[121] Refer NDIA’s HTB, Page 366-7.
In Ms Richardson’s Second Report, she states that Mr Darlow is able to wash and dry his face. Mr Darlow had reported standing while he was showering.
Ms Lewis has recommended the use by Mr Darlow of a shower chair.[122] Ms Lewis considers that a shower chair would assist Mr Darlow to wash his hair while in a seated position; and he could lower his head forward, to reduce the upper limb reach to his head.[123]
[122] Ibid, Page 434.
[123] Ibid, Page 437.
An important feature of Mr Darlow’s request for assistance from a support worker with his personal care arises from his footcare regime, because he says he perspires heavily and is prone to eczema and fungal infections. Mr Darlow says he is unable to attend to his footcare independently. He also claims that he experiences upper limb weakness suddenly while undertaking activities that require his arms to be elevated for a sustained period.[124]
[124] Ibid, Page 364.
Ms Richardson suggests that Mr Darlow clean his shower on a daily basis by using a spray and a long-handled brush to wipe the shower. This is to control reinfection of the foot fungal infection. Msr Lewis agreed with this suggestion and gave evidence that she considers Mr Darlow had the functional capacity to perform that task, considering he would have the functional capacity to clean a toilet. Ms Lewis also gave the following evidence:[125]
…the other recommendations that I made around toe sponges or shower sponges which are on a long handle to reach the feet, would support Mr Darlow's independence in washing his feet, particularly in a seated position, you would need a shower stool. And the toe dryers, which are a very similar concept in that they're on a long handle and they have a cloth around the base of the dryer and that can fix into the toes. And using a towel hooked around the foot and using that in a motion of like a sawing motion to dry the feet. So, that would support Mr Darlow's independence. Spraying the feet, I'm not sure what that spray looks like, but I would suggest that Mr Darlow would be able to spray his feet. The creams, I would need to understand more about what the application of those creams look like. But in saying all of that, I would say that that is a very quick process for a support if required.”
[125] Refer Transcript, P-159.
In response to Ms Lewis’ evidence, Mr Darlow said:[126]
I have tried many, many ways of drying my feet and whatever and I simply dispute her comment about a toe wiper because I'm not able to get in the creases of behind my feet with a toe wiper and I can't guarantee - and that's mainly where the fungal infection adheres or takes place. So the only way I can really deal with that is through towelling. I'm not able to reach my feet and her telling me that I can put my feet - I can put the towel under my feet and wipe it that's all okay for the arches and the heel of the foot but the actual ball - between the ball of the foot and the tip of the toes that's not going to help.
[126] Ibid, P-203.
In Mr Darlow’s Closing Submissions he stated that he has tried “all the aids including but not limited to toe dryers, sockets, pick up sticks (they work really well) raised toilet seat, back washers and hair washing aids and more”.
Based on Mr Darlow’s evidence, the NDIA accepted that funding of some support worker assistance to assist Mr Darlow attend to certain personal care tasks, and in particular, applying cream to his feet, represents “value for money”. Ms Richardson also refers to Mr Darlow needing to apply spray to his feet, and she says Mr Darlow has reported not being able to reach down sufficiently to undertake this task.[127] The NDIA contends that one hour per day of support worker assistance with personal care is reasonable, relying upon the recommendation of Ms Lewis (who recommends five hours per week for assistance with personal care).[128]
[127] Refer NDIA’s HTB, Page 366.
[128] Refer NDIA’s Closing Submissions at paragraph [111].
The Tribunal agrees with the suggestions made by Ms Lewis to the effect that the use by Mr Darlow of a shower chair and long-handled equipment is available to him and is likely to enable Mr Darlow to undertake several aspects of his daily foot care and cleaning the bottom of his shower each day, independently. However, like the NDIA, the Tribunal is satisfied that assistance by a support worker is required by Mr Darlow each day to attend to other aspects of his foot care needs, specifically, applying the sprays and creams, due to his inability to reach the lower parts of his body. The Tribunal also accepts that he should be supported to wash, dry, and dress the lower parts of his body, apply lower body dressings as required, and to assist him to shave.
The Tribunal considers additional funding for support workers to assist Mr Darlow with his medical management is not “value for money” because the same outcome can be achieved either by Mr Darlow downloading a free ‘app’, as suggested by Ms Lewis, which would prompt him to take his medications, or he can arrange for his pharmacist to prepare webster packs on his behalf. Mr Darlow says he does not trust the pharmacy to do this correctly. The Tribunal considers Mr Darlow’s fear in this regard to be irrational; and the Tribunal would have greater confidence in a pharmacist undertaking this task than either Mr Darlow or his support workers manually filling the dosette box. The Tribunal also does not accept that Mr Darlow lacks the cognitive capacity to fill his dosette box correctly, even if it takes him some time to do so; or to ask his support worker to double-check that he does so correctly when they visit to attend to his self-care needs. Mr Darlow has a higher-than-average IQ and can manage it if he applies his mind to the task at hand, as he does when he applies his mind to entrepreneurial activities, such as online “bot-building” (chat functions for websites), and “flipping” cars. The Tribunal acknowledges that his memory and executive function may be impaired, but only mildly so (at best).
Assistance with domestic ADLs
Ms Richardson, in her Second Report, describes the “current status” that Mr Darlow is able to attend to his laundry and light cleaning (dusting, tidying, cleaning the mirror in the bathroom, vanity, and toilet) and that he requires assistance with the following domestic ADLs:
(a)cutting raw meat and hard foods, pouring, and transferring some weighty ingredients into the Thermomix bowl, retrieving items shelved down low from cupboards and pantry;
(b)heavy chores such as vacuuming and cleaning the shower;
(c)washing, hanging and folding bed linen and occasional assistance to hang items;
(d)all aspects of house and yard maintenance.
In Ms Lewis’ First Report she observes that some of those indications were inconsistent with Mr Darlow’s ability to play table tennis. The Tribunal agrees with this and finds it hard to reconcile Mr Darlow’s claimed impairments with his ability to participate in weekly table tennis competitions at the intensity described by Ms Richardson in paragraph [104] of these Reasons for Decision. This was put to Mr Darlow at the hearing, and he sought to downplay the physical demands of playing table tennis.
The Tribunal does not accept this and considers that Mr Darlow’s participation in table tennis reflects a moderate degree of physical functionality and endurance. The Tribunal considers Mr Darlow’s capacity to engage in physical activities when performing his domestic ADLs exceeds the ability as reported by Mr Darlow to his treating health practitioners (including Ms Richardson), Ms Lewis and the Tribunal.
Specifically, the Tribunal considers that Mr Darlow has the capacity to vacuum his floor and can undertake a light clean of his shower and bathroom if he paces himself, like he says he does when participating in table tennis competitions. If provided with a clothes horse as suggested by Ms Lewis, the Tribunal also considers that Mr Darlow is capable of hanging out his laundry onto the clothes horse. For this reason, the provision of additional funding for support workers to attend to his laundry does not represent “value for money”, as he can achieve the same outcome by the provision of a clothes horse and attending to that task himself. The Tribunal accepts that Mr Darlow requires assistance from a support worker for the heavy cleaning required in the home from time to time; that is, when spring cleaning is required, or furniture needs to be shifted for deep cleaning. The Tribunal accepts that additional funding to pay for a support worker for one hour per week, to undertake those residual heavier cleaning activities, represents “value for money”.
The Tribunal considers that Mr Darlow requires minimal assistance in the preparation of his food and that he is capable of preparing most meals himself. The Tribunal accepts that when a support worker visits him to attend to his personal care needs that they might assist him, for two hours per week in total, with meal preparation as recommended by Ms Lewis; and that this two hours per week represents “value for money”.
How many hours of support worker assistance represents “value for money”?

Drawing together the above considerations, the Tribunal considers that the provision to Mr Darlow of funding for 2.5 hours per day, every day of the week, at the daytime rate (that is, a total of 17.5 hours per week), represents “value for money” taking into account the benefits to be achieved relative to comparable supports. During those shifts, the support worker may assist Mr Darlow to:
(a)attend to his personal care routine such as showering, drying, and dressing the lower parts of his body, and apply lower body dressings as required;
(b)assist him to shave;
(c)attend to other aspects of his foot care needs, specifically, applying the sprays and creams, due to his inability to reach the lower parts of his body;
(d)attend to occasional heavy cleaning required in the home from time to time, that is, when spring cleaning is required, or furniture needs to be shifted for deep cleaning; and
(e)attend to certain minimal tasks involved in this meal preparation but leaving Mr Darlow to prepare most of his meals independently.
Subsidy for CPAP machine
Quotes dated 21 March 2019 for Mr Darlow’s mini-CPAP machine show that the cost of this device and consumables comes to a total of $2,036.95.[129] The Tribunal considers that the subsidy requested by Mr Darlow in the form of repayments on the payment plan for this device represents “value for money” under s 34(1)(c) of the NDIS Act. However, the Tribunal will return to this support when considering whether it is most appropriately funded under the NDIS or more appropriately funded under the general health system. The NDIA contended that funding for a CPAP device may be available to Mr Darlow under Medicare; and if so, it is more appropriately funded under the Medicare system rather than under the NDIS. By the time the NDIA lodged its Closing Submissions, the Tribunal notes the NDIA did not specifically contend that the criterion under s 34(1)(f) of the NDIS Act was not met, nor develop any argument that funding for a CPAP machine is more appropriately funded by Medicare under the general health system.
[129] Refer NDIA’s HTB, Page 47 & 48.
Ergonomic chair and desk
Mr Darlow has not been assessed by an orthopaedic surgeon in recent times. However, he claims that he has impairment to his spinal function and finds it difficult to remain seated for lengthy periods of time due to back pain. This was not contested by the NDIA, and it accepts that Mr Darlow requires an ergonomic desk and chair to meet his disability needs.
Mr Darlow seeks funding of $2,960 for an ergonomic chair and $1,963.50 for an electric sit-to-stand desk.[130] The NDIA contends this is not “value for money”; and instead, has approved total funding for $1,000 which may be used by Mr Darlow to purchase the ergonomic chair and desk. The Tribunal considers that the evidence before it suggests that the same outcome, of enabling Mr Darlow to be seated or standing when working at his desk and to be adequately supported in an ergonomic chair, would be achieved if he was to be funded for an ergonomic desk and chair at the combined value of $1,000, for which Mr Darlow is already funded under his current NDIA plan. For this sum, a suitable electrically operated sit-to-stand desk and ergonomic chair may be purchased from Officeworks, per the quotes contained within Ms Lewis’s Report.[131]
[130] Refer NDIA’s HTB, Pages 321&322.
[131] Refer NDIA’s HTB, Page 451 (desk: $429.00) and Page 454 (chair: $399).
For this reason, the Tribunal considers that the more expensive ergonomic desk and chair (costing $4,923.50 in total) requested by Mr Darlow does not represent “value for money” within the meaning of s 34(1)(c) of the NDIS Act and that this criterion has not been met.
All six criteria under s 34(1) of the NDIS Act must be met for a support to be a “reasonable and necessary support” and funded or provided under the NDIS Act. Given the Tribunal has found that s 34(1)(c) is not met with respect to the ergonomic desk and chair requested by Mr Darlow, it is not necessary for the Tribunal to proceed to a consideration as whether the remaining criteria under s 34(1) are met.
Criterion under s 34(1)(d) - the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice
In relation to this requirement, r 3.2 of the Rules provide as follows:
3.2      In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a)       published and refereed literature or any consensus of expert opinion;
(b)       the lived experience of the participant or their carers; or
(c)       anything the Agency has learnt through delivery of the NDIS.
3.3      In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
The Tribunal has, in effect, considered whether the Requested Supports are, or likely to be, effective and beneficial, as part of the process of considering the benefits to be achieved when assessing whether they are “value for money”. There was no specific challenge in this matter that support worker assistance or the subsidisation of a CPAP machine are, or likely to be, effective and beneficial. The contest was about the level of support that should be provided to Mr Darlow; that is, the number of hours per week of support worker assistance that should be provided. Or in the case of the CPAP machine, whether his need for a CPAP machine relates to his disability. Mr Darlow has been granted access to the NDIA. When the NDIA (and the Tribunal upon review) moves to the stage of reviewing what supports should be included in the participant’s SOPS, the decision-maker should make its assessment as to whether a support is a “reasonable and necessary support”, based on an assessment of the person’s current impairments, irrespective of whether the impairment under consideration was the same as the impairment for which the participant was recognised as having a disability and granted access to the scheme.
For this reason, the Tribunal is satisfied that the request for support worker assistance and to subsidise the mini-CPAP machine, both meet the criterion under s 34(1)(d) of the NDIS Act.
Criterion under s 34(1)(e) - the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks, and community to provide
Section 34(1)(e) of the NDIS Act requires that the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks, and community to provide. Rules 3.4 of the Support Rules also provides that the CEO is to consider (as relevant in this case) the “extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes” – see Rule 3.4(b)(ii)(C). The other subrules of Rule 3.4(b) do not apply because Mr Darlow does not receive support from any family members according to his evidence. Rule 3.4(c) also requires the Tribunal to consider the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.
Mr Darlow gave evidence that he has no family or friends willing to assist him. His relationship with his ex- partner has ended. He has known some people at the table tennis association for a long time, but it is not apparent that he socialises or receives support from them outside of the weekly competition events. Mr Wall said there might be a person that Mr Darlow played table tennis with whom Mr Darlow could “call on and can trust” but that he did not see him a lot. Mr Wall said he would need to check on this as he was unsure. Mr Wall explained that Mr Darlow’s family were in Perth.[132] Mr Darlow said he is very close to his uncle who is in his 80’s, but his uncle lives in Perth.
[132] Refer Transcript, P-132.
This criterion is mostly irrelevant in Mr Darlow’s case, due to his lack of informal supports. However, it is relevant in relation to Mr Darlow’s request for support worker assistance to provide with him companionship, and Ms Lewis’ suggestion that he could address his claimed social isolation by joining community groups as described above. The Tribunal considers this it is reasonable to expect that such community programs should be playing a role in addressing Mr Darlow’s claim about being socially isolated; and that he should be building his independence and social skills by attending these community groups to establish relationships, instead of paying support workers using NDIS funds to spend time, and socialise, with him.
For this reason, the Tribunal considers that the request for 33 hours of support worker assistance has not taken account of what it is reasonable to expect community-based group programs to provide to Mr Darlow.
This criterion is not directly relevant to Mr Darlow’s request for the mini-CPAP machine repayments, and for this reason, the Tribunal concludes that this criterion has been met with respect to this support.
Criterion under s 34(1)(f) - the support is most appropriately funded or provided through the [NDIS], and is not more appropriately funded or provided through another system or service as described in this provision
Rules 3.5 of the Support Rules refers to Schedule 1, which sets out the matters the CEO is to have regard to when considering whether this criterion is met. Of relevance, Schedule 1 addresses supports relating to a participant’s “Health (excluding mental health)” (Rules 7.4) and “Mental health” (Rule 7.6 and 7.7).
Support worker assistance
It was not contended that Mr Darlow’s request for funding for support worker assistance is not most appropriately funded through the NDIS and is more appropriately funded through another general service system. The Tribunal is satisfied that provided this support meets all other criteria under s 34(1) of the NDIS Act, that it is most appropriately funded through the NDIS.
Subsidy for CPAP machine
Rule 7.4 provides that the NDIS will be responsible for supports related to a person’s ongoing functional impairment and that enable the person to undertake ADLs, including maintenance supports delivered and 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 required to live in the community and participate in education and employment. Rule 7.5 provides that the NDIS will not be responsible for medical or clinical treatment of health conditions, other activities aimed at improving the health status of Australians, or where the predominant purpose is treatment directly related to the person’s health status. It can be a complex task to assess whether a piece of clinical apparatus such as a CPAP machine should be funded under the NDIS or under the general health system, as the NDIA has contended in this instance.
The Tribunal notes the NDIA has issued a publication entitled “Disability-related health supports”.[133] The policy guidance in this publication states that the disability-related health supports that the NDIA will fund, when directly related to the participant’s disability, includes the following:
Respiratory supports: if you need support, care and planning to help you breathe and maintain respiratory health where this is compromised.
[133] Disability-related health supports | NDIS
As mentioned above, by the time of making its Closing Submissions, the NDIA’s earlier contention that this support is more appropriately funded by Medicare (under the general public health system) was not pressed. There is also a paucity of evidence that Mr Darlow would be entitled to receive a CPAP machine under Medicare. On this basis and given the indication in NDIA’s publication referred to in the above paragraph, the Tribunal concludes that funding for the CPAP machine repayments in Mr Darlow’s case is most appropriately funded under the NDIS.
Whether Rule 5.1(a) applies
Rule 5.1(a) of the Supports for Participants Rules provides that a support will not be provided or funded under the NDIS if it is likely to cause harm to the participant or pose a risk to others.
This rule is potentially relevant in relation to Mr Darlow’s request for 33 hours of support worker assistance. Based on Ms Lewis’ evidence, which the Tribunal accepts, cautioning against the provision of support assistance to Mr Darlow exceeding his disability-related support needs, because it “can often lead to long term dependence and a reduction in personal functional capacity” (see paragraph [88] above), the Tribunal is satisfied that Rule 5.1(a) also precludes the provision of support worker assistance to Mr Darlow of more than 17.5 hours per week, as any additional hours are in excess to his disability-related support needs.
CONCLUSION
For the reasons set out above, the Tribunal sets aside this decision under review and remits this matter for reconsideration by the NDIA with a direction that it is to facilitate the approval of a new SOPS for Mr Darlow containing the following provisions:
(a)a reassessment date that falls on the one-year anniversary of the date of approval of the new SOPS resulting from this remittal;
(b)a provision specifying that the funding in the new SOPS is to be managed in the same way as the funding is managed in Mr Darlow’s current SOPS;
(c)a provision approving funding for Mr Darlow for the following supports:
(ii)to meet the repayments for Mr Darlow’s mini-CPAP machine (not to exceed $2,036.95, per quotes for mini-CPAP machine and consumables);
(iii)12.5 hours per week, 52 weeks per year, at the weekday daytime rate plus 5 hours per week, 52 weeks per year, at the weekend daytime rate, for support worker assistance to assist the Applicant in relation to his personal care routine (whether that be undertaken in his home or in any other place), and to undertake occasional heavier household cleaning as required; and
(d)replication, on a pro rata basis, of all existing supports in his current SOPS except for support worker assistance, which has been replaced by the support provided under subparagraph (c)(ii) above, and any other one-off supports in his current SOPS for which the funding has already been expended.
I certify that the preceding one-hundred and sixty-four (164) paragraphs are a true copy of the reasons for decision of Member K. Parker.
……………[SGD]…………………
Associate
Dated: 13 December 2022
Dates of the hearing:  8, 9 and 10 December 2021, 28 January 2022 & 23 March 2022
Date of final closing submissions:     8 March 2022
Advocate for the Applicant:               Self-represented
Advocate for the Respondent:           Ms Jess Moir of counsel
Solicitors for the Respondent:           Maddocks

[2022] AATA 4280

13 December 2022

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