Deayton and National Disability Insurance Agency
[2021] AATA 1506
•28 May 2021
Deayton and National Disability Insurance Agency [2021] AATA 1506 (28 May 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2019/7510
Re:Michael Deayton
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:28 May 2021
Place:Melbourne
The Tribunal affirms the decision under review.
......[sgd]..................................................................
Dr Stewart Fenwick
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – applicant with nemaline myopathy – no disadvantage principle – whether day to day living costs – whether supports relate to disability – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975
Australian ConstitutionNational Disability Insurance Scheme Act 2013
Cases
Breavington v Godleman (1988) 169 CLR 41
McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121
McLaughlin and National Disability Agency [2021] AATA 496
National Disability Insurance Agency v WRMF (2020) 276 FCR 415Red Energy Pty Ltd v Saxton [2019] FCCA 86
Secondary Materials
Convention on the Rights of Persons with Disability, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008)
National Disability Insurance Scheme (Support for Participants) Rules 2013Quick, John and Robert Rudolph Garran, The Annotated Constituted of the Australian Commonwealth (1901)
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
28 May 2021
BACKGROUND
Mr Deayton applied on 18 November 2019 for review of an internal review decision of the National Disability Insurance Agency (NDIA) dated 29 April 2019 which, in effect, maintained his plan as previously approved without a number of specific supports which Mr Deayton had wanted to be included.
The Applicant was accepted as a National Disability Insurance Scheme (NDIS) participant on 9 February 2018. Mr Deayton’s first NDIS plan was approved on 9 November 2018, and he sought a review of the plan on 14 November 2018. Mr Deayton declined to access the supports funded in his plan and continued to question the plan’s content at the time of its first annual review in 2019. Mr Deayton’s concerns about his supports arise from his transition from a Victorian Disability Services funded Individual Support Package (ISP) to the NDIS in 2018.
Mr Deayton represented himself at a hearing by telephone on 12 March 2021. He lodged a Statement of Facts, Issues and Contentions (SFIC), and a bundle of material was received at the hearing (Exhibit A1), marked H3–H23 in the Hearing Bundle lodged by the Respondent. This material includes a statement of lived experience from Mr Deayton, a number of witness statements, a range of documents relating to the supports not approved by NDIS, and several policy documents in relation to the NDIS.
The Respondent lodged a SFIC and documents under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents), and the Hearing Bundle, being a consolidated set of all material lodged. At my invitation, the Respondent lodged further material following the hearing being submissions and authorities relevant to the concept of ‘no disadvantage’, and the interpretation of day-to-day living expenses.
LEGISLATION
An NDIS plan takes effect under s 37 of the National Disability Insurance Scheme Act 2013 (the Act) when a statement of goals and aspirations has been received from an NDIS participant, and a statement of participant supports has been approved. Under Division 4 of Chapter 3 of the Act a participant may request review of their plan at any time.
Certain principles underpin participant plans pursuant to s 31 of the Act. Accordingly, and ‘so far as reasonably practicable’, the preparation, review, replacement, and management of funding under a plan should take into account a number of principles that are aimed, broadly, at ensuring that plans address the individual aspirations and needs, and advance their inclusion and participation in the community.
Under s 33(2) of the Act, plans must include a statement of participant supports that specifies, relevantly, general supports (if any) and the ‘reasonable and necessary supports’ (if any) that will be funded. In deciding whether to approve a statement of participant supports, s 33(5) provides that regard must be had, among other things, to the participant’s statement of goals and aspirations and the NDIS rules (if any).
Section 34(1) of the Act requires that a decision maker must be satisfied of all of the following in relation to the funding or provision of both general, and reasonable and necessary, supports:
(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 NationalDisability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Under s 34(2) of the Act, NDIS rules may prescribe ways to reach the required satisfaction in respect of the above matters. The National Disability Insurance Scheme (Support for Participants) Rules 2013 (the Rules) are made under s 209 of the Act (and are a legislative instrument) and provide the following general criteria for supports:
5.1A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a)additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b)costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
There is recent authority for the proposition that the statutory task of determining what is in a plan and what are reasonable and necessary supports is a ‘fact-intensive exercise’ and one that is highly individualised (National Disability Insurance Agency v WRMF (2020) 276 FCR 415, 449 at [152] (WRMF)).
It has also been held that as ‘reasonable and necessary supports’ is not defined in the Act, its meaning can be derived from the legislative context, especially ss 4(11) and 14 of the Act (McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121, 131 at [41] (McGarrigle)).
Section 4 of the Act sets out the general principles that guide actions taken under the Act, and includes (s 4(11)) specific reference to reasonable and necessary supports which should:
(a)support people with disability to pursue their goals and maximise their independence; and
(b)support people with disability to live independently and to be included in the community as fully participating citizens; and
(c)develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
Section 14 of the Act addresses funding, and states that assistance in the form of funding may be provided for persons or entities:
(a)for the purposes of enabling those persons or entities to assist people with disability to:
(i) realise their potential for physical, social, emotional and intellectual development; and
(ii) participate in social and economic life …
The objects of the Act are found in s 3(1) and include support for the independence and social and economic participation of people with disability, the provision of reasonable and necessary supports, and enabling people with disability to exercise choice in the pursuit of their goals.
EVIDENCE AND SUBMISSIONS
Support Plan
Mr Deayton’s first approved plan (8 November 2018 to 8 November 2019) (T7) has total funded supports of $52,581.65 and states the following:
(a)he lives independently in a two bedroom wheelchair accessible unit. He has family in the neighbourhood who assist him at times, as do friends and neighbours;
(b)he has the rare, genetic muscle disorder Nemaline Myopathy. On good days he can get out of bed and look to his daily needs. On bad days he is unable to get out of bed except for basic needs;
(c)he has a keen interest in horse racing and is a member of a syndicate, and has friendships and good social networks in the sport;
(d)he enjoys AFL and movies which he watches on Foxtel and he once participated in competitive wheelchair sports, which he would like to return to; and
(e)he spends a large part of his day online and socialising via Facebook.
Mr Deayton’s plan identified the following short-term goals: to maintain independent living; and, to meet his ongoing disability support needs, to maintain independence, dignity and self-esteem. The plan identified the following medium or long-term goals: maintain current independent movement and transportation in and around home and community to see friends and family; maintain and enhance social networks and have more opportunities to access community activities and participate in sporting and recreational activities; and maintain mobility, flexibility and muscle strength.
The core funded supports in Mr Deayton’s plan included: funding for personal care and community access; funding for assistive technology; and transport costs. Capacity building supports included: funding to assist in identifying assistive technology needs; and funding for allied health professional or therapists, including personalised training. Capital supports included powered wheelchair and bed and associated items.
The NDIA appear to have approved a revision of this plan (T8) by letter dated 8 October 2019 (T8, p 53), increasing the total funded supports to $59,280.15. According to the Respondent’s SFIC ([15]) on 4 November 2020, the plan review date was extended to 24 April 2020 and the total funded supports was increased to $143,038.65.
The core supports relevant to the issues in this matter are described as follows (T7, p 48; and T8, p 60):
(a)‘Support to explore and participate in community based activities of interest and to develop, build and maintain friendships, for example, a person to support you to participate in social and community activities including attending recreational camps’ (together with other domestic supports, the funding allocated is $46,524.21) (T8, p 60);
(b)‘Transport - $1,784.00. This funding is a contribution towards any transport related costs you incur during the plan period. This amount will be paid fortnightly into your nominated bank account on a pro-rata basis’ (T8, p 60).
Drawing again on the Respondent’s SFIC ([15]), the figure allocated for the self-managed supports for Mr Deayton to participate in community activities was increased to $116,791.75, and the total transport funding was increased to $4,381.09.
NDIA informed Mr Deayton that a number of specific supports in his plan had been declined (T1F) on the basis they were everyday expenses incurred by all Australians, or otherwise did not meet the requirements of s 34 of the Act. These supports were:
(a)RACV Total Care package (said not to meet any of the criteria in s 34, not to be related to the disability, and described as a daily living cost);
(b)electricity costs (said not to meet any of the criteria in s 34, not to be related to the disability, and described as a daily living cost);
(c)disability specific accommodation (said not to meet ss 34(c), (d), (e), and (f));
(d)airfare for a companion (said not to meet ss 34(c), (d), (e), and (f));
(e)part payment of Foxtel subscription (said not to meet the criteria in s 34, not to be related to the disability, and described as a daily living cost);
(f)computer software (said not to meet the criteria in s 34, not to be related to the disability, and described as a daily living cost); and
(g)Internet Service Provider connection (said not to meet the criteria in s 34, not to be related to the disability, and described as a daily living cost).
At the hearing it was accepted between the parties that the final item relating to Mr Deayton’s home internet costs was not a matter in dispute, as the Applicant was not pursuing it. During the hearing, the Respondent’s representative informed the Tribunal that instructions had been received that the computer software being sought by Mr Deayton, a dictation package, would be funded.
Information regarding ISPs
The materials include an ISP Funding Proposal for Mr Deayton, dated 11 May 2016 (T1E), and described as Proposal 6. The proposal notes a total annual request of $7,226.07. Under the subheading Context, the proposal states that Mr Deayton requested certain information be added verbatim, including:
… OOH (after a request from Michael’s GP) have installed a reverse cycle air conditioner in 3 rooms of his unit. This has increased Michael’s power usage by approximately 2000 KWH per annum; resulting in an increased costs with Michael’s electricity and places an additional strain on Michael financially.
… Michael can manage to load and unload the washing machine; however, he does not have the strength to hang them out to dry, therefore, he has to use a clothes dryer. This increases in power usage puts an additional strain on him financially.
Further, under Context, additional comments are made about items requested. The proposal notes that Mr Deayton requested the ISP meet the cost of airfare with travel companion. It goes on to suggest that the Applicant consider airline policies and choose carriers that recognise his Companion Card, or have a policy that waives associated costs. In respect of utilities, the proposal notes that the Applicant requested the ISP contribute to the cost of utilities. It goes on to state that the Applicant receives a government subsidy toward these costs and a contribution to utility costs is therefore not possible.
The proposal records that, at a hearing of the Victorian Civil and Administrative Tribunal (VCAT), a contribution of $390 per annum toward the Applicant’s Foxtel subscription was agreed. It goes on:
As per any other member of the community, Foxtel is a cost that the average community member would need to pay. For this reason, at this review, the ISP is only able to contribute a portion towards these costs due to the impact of Michael’s disability which is above and beyond the average community member.
The proposal records that contributions towards RACV roadside assistance and car insurance continue, and had been requested to continue. The insurance for his vehicle with hydraulic lift is described as $552.41 higher than a standard package, and additional assistance under a Total Care package is $221 higher than a standard package.
In relation to accommodation and transport while travelling, the proposal notes that the Applicant is not using his car due to the change in his condition following his fall and requires the help of a support person to transfer in and out of his vehicle. For this reason, and following the VCAT hearing, the Applicant sought to include a detailed statement of additional costs related to travel, which I summarise:
(a)contribution to the extra accommodation costs arising from his disability in order to take breaks if driving long distance, as recognised in previous ISPs;
(b)contribution toward the additional cost of a hotel room for a support person;
(c)the difference arising from the cost of the hire of a wheelchair accessible vehicle when flying; and
(d)if necessary, the cost of an additional airline ticket for a companion.
Finally, I note that the proposal also includes the following statement described as ‘critical information’:
‘the facilitator has explained to Michael that the priority for ISP funds is critical care needs (ie, 1:1 support). The Facilitator has explained to Michael that should some requested items not be endorsed by DHHS, then reduction of his ISP budget ongoing could result’.
A second ISP was included in the tender bundle lodged by the Respondent, being a draft ISP, dated 7 December 2010 (H5), and described as Proposal 2. In respect of the items relevant to the Application I note the following:
(a)the Context statement observes that ‘Michael’s condition is severely affected by extremes in temperatures both hot and cold, in particular hot weather causes extreme fatigue and weakness of the muscles impacting on mobility’;
(b)funding was sought for the registration costs of the Applicant’s participation in the National Electric Wheelchair Sports National Championships;
(c)assistance was requested to cover the costs of attending the event being fuel and accommodation;
(d)similar assistance was sought for attendance at another regional event; and
(e)the Applicant sought the difference between a basic and higher level Total Care RACV package ($36).
Other information provided by Mr Deayton
An undated statement from Mr Deayton (T5) includes further relevant background about his condition and personal capacities:
(a)Nemaline Myopathy is defined by muscle weakness and no specific treatment exists. It states that Mr Deayton has a program of exercise, massage and stretching techniques;
(b)he does not require assistance with personal care in his own familiar home environment and has a self-propelled commode chair. He is dependent on an electric wheelchair for mobility and has a vehicle fitted with a lift. With assistance, he can transfer into the vehicle and drive independently, however, he has concerns about his ongoing capacity to drive;
(c)Mr Deayton can organise and prepare simple meals and needs assistance with domestic tasks and shopping. He can wash clothes but uses a clothes dryer as he cannot hang clothes out; this adds financial strain. His Office of Housing flat also has reverse cycle air conditioning installed;
(d)Mr Deayton receives the Disability Support Pension (DSP), and is on an ISP from the Victorian government and receives fortnightly home care and personal care once a fortnight to assist with shopping; and
(e)his occasional activities include attending the races when one of his syndicate horses is running and the football, both dependent upon weather.
I include here additional background regarding Mr Deayton from a Statement of Lived Experience, lodged with the Tribunal on 20 August 2020 (H4):
(a)the Applicant had a physically active work life in roles that included clerk and telecommunications technician;
(b)Mr Deayton has always had an interest in sport including, in particular, football and horse racing. He had a close association with a local team and attended major stadiums for games until his condition made it difficult for him to attend. He has been a member of several racing syndicates and early in his career would regularly attend the races, and socialised with other syndicate members when feeling capable of doing so;
(c)the Applicant has had direct and competitive experience in a number of sports since he was young, and represented Victoria on several occasions in electric wheelchair sports;
(d)he has lived independently in an Office of Housing unit since 2006;
(e)Mr Deayton was hospitalised for four and a half months in 2014 after experiencing a fall while getting into his wheelchair, breaking a leg;
(f)due to issues with the NDIS the Applicant continues to receive support from the local council including home care and assistance with shopping, together with occasional help from family for things, such as changing a lightbulb;
(g)Mr Deayton considers his condition is deteriorating more quickly because he has become depressed since NDIS support was provided; and
(h)he has ceased driving because of increased weakness and has difficulty feeding himself.
In a further document, headed ‘Answers to the questions contained in correspondence dated 14th May, 2020’,[1] Mr Deayton states as follows (relevantly):
All items declined on my NDIS plan was previously approved on my state funded ISP which falls in line with the Disability Act 2006. As there was an agreement between the Federal and State Government, “ensure that people with disability are not disadvantaged by the transition to the full roll out of the NDIS”, then there is no need to go through all the information that has already been decided upon under relevant legislation.
[1] A document in response to correspondence prepared by the Respondent during the course of case conferencing, and intended to provide guidance in the elaboration of the Applicant’s case.
In a brief SFIC Mr Deayton provides the following information and contentions (which I summarise):
(a)under the subheading Issues: how is it that all items declined were previously approved under the ISP; how does the NDIA determine what relates to his disability; and, why does the NDIA deny his ability to participate in, and contribute to, social and economic life, to the extent of his ability?
(b)under the subheading Facts: the reverse cycle split system air conditioner in his unit was installed on medical advice; he has had some form of state assistance since 1998 (including ISP since at least 2010); has continually tried to get the plan right for his needs since November 2018 and has not accessed the plan; and
(c)under the subheading Contentions: people with a disability have the same right as other members of society to determine their own best interests, and to exercise choice and control, and engage as equal partners in decisions that affect their lives, to the full extent of their capacity; ‘[t]he NDIA are not in a position to determine my needs when I have a rare condition’; the funding needed is directly related to his support needs; the costs are incurred ‘when you do not have the choice to do something because of your disability, unlike the average Australian’.
Mr Deayton lodged a bundle of papers relating to the installation of the split system air conditioning system (H7). This bundle includes a letter from Dr Catherine Jeffrey, dated 4 December 2012 (H7, p 66), a General Practitioner, which states as follows:
Michael has Nemaline myopathy (type of muscular dystrophy). The heating and cooling in his unit is not suitable. Michael needs to live in an environment with an even temperature. At present, the gas wall furnace is not heating the unit. There is no air conditioning in the unit. Michael does not tolerate the heat: he become lethargic and struggles with his daily function.
I would be grateful if you would assess the heating and cooling in his house and make appropriate changes. Perhaps reverse ducted cycle heating and cooling would help Michael’s situation.
I note that Mr Deayton lodged a bundle of electricity bills with the Tribunal and Respondent on 10 October 2020 (H7 in the Respondent tender bundle). Bills dating from 2010–2011 indicate that the Applicant has been in receipt of Medical Cooling and Winter Energy concessions, and more recent bills from 2016–2017 refer to a Victorian Government Annual Electricity Concession. As might be expected, usage and charges vary over time but, by way of example, the first bill is for 750 kWh of power across a 93-day period in early 2010, and the last bill is for 365 kWh of usage over a 30-day period in early 2018.
Several medical reports were lodged by Mr Deayton with his Application:
(a)Ms Jennifer Guild, physiotherapist, dated 8 December 2010 (T1A), states that she has seen Mr Deayton regularly since 1998 and that regular physiotherapy is extremely important and regular massage is very helpful;
(b)Dr Jeffrey, dated 5 October 2015 (T1B), states that Mr Deayton’s condition will deteriorate and fluctuates, he needs assistance when outside the home, it would be unsafe for him not to have a carer when on holiday, and that due to his limited mobility needs to have avenues at home to maintain his interests and Foxtel would support his passion for sport and entertainment; and
(c)Dr Yong Chern Lee, consultant neurologist, dated 4 March 2016 (T1C), states Mr Deayton’s condition has deteriorated slowly over the years and made worse by a fall in 2014, that he has significant weakness of the upper limbs, that his ability to travel outdoors and integrate with the community has been markedly restricted, and Foxtel is helpful for his psychological wellbeing.
Mr Deayton lodged a signed statement dated 7 October 2020. This is written in the form of a chronology covering 18 dates between 15 October 2018 and 6 March 2020, and I include here a summary of relevant parts:
Date
Details
15 Oct 2018
Mr Dayton met with Local Area Coordinator (LAC) who has a copy of ISP and requested supports including: all but one component of his ISP; a new wheelchair; bed; linen; additional power costs for heating/cooling and clothes dryer; computer and software; house cleaning and bed changing; assistance with shopping and outings; equipment maintenance. LAC advised that not all requests would be allowed.
12 Nov 2018
LAC advised at meeting that plan approved. Mr Deayton advised he would not accept the plan ‘as it put me in a worse position’, and requested an immediate review.
14 Nov 2018
Copy of plan received.
16 Nov 2018
Phone contact with NDIA.
7 Dec 2018
Phone contact with LAC.
14 Dec 2018
Mr Deayton advised NDIA to withdraw all notification that he is on the NDIS until situation resolved, and still awaiting advice as to why certain supports had not been included.
22 Jan 2019
Phone contact with NDIA.
17 April 2019
Phone contact with NDIA.
29 April 2019
Attendance in person at NDIA office, Mr Deayton told to put review request in writing.
13 May 2019
Attendance in person at NDIA office.
24 May 2019
Attendance in person at NDIA office to discuss plan.
8 Oct 2019
Meeting at NDIA office to discuss plan.
28 Oct 2019
Attendance in person at NDIA office.
8 Nov 2019
Phone message from NDIA re accessing plan.
26 Nov 2019
Mr Deayton advises NDIA of AAT application.
6 Mar 2020
Phone contact with NDIA.
The further statements lodged by Mr Deayton are from his sister Ms Catherine Hoeft, dated 6 October 2020, and his brother, Mr Patrick Deayton, dated 9 October 2020. Ms Hoeft describes the assistance she and her husband provided to the Applicant when transitioning out of his family home after a divorce in 2005. She provides information supporting Mr Deayton’s needs, consistent with his own description. Ms Hoeft states that the Applicant has not been able to independently weight bear after his 2014 fall, and that she has observed a further significant loss of strength in his arms. She considers that his mental health has suffered through his engagement with the NDIS.
The Applicant’s brother states that he visits the Applicant nearly once a week and brings a meal and provides assistance around the house. He also attended during the night when Mr Deayton experienced a fall. The statement further describes the Applicant deteriorating further and struggling to eat and drink.
Mr Deayton provided a letter from Ms Clare Symons, dated 1 October 2020 (H14). Ms Symons states that she is employed in the Frankston Council and that Mr Deayton has been receiving support at home and with shopping since September 2006. Ms Symons explains that she also provides assistance to those transitioning to NDIS support. While Mr Deayton’s assistance was to expire upon approval of his NDIA plan, Ms Symons states that the Council was providing ongoing support during the review of the Applicant’s plan. I note Mr Deayton provided a copy of his Home and Community Care Services Home and Personal Care Plan, from December 2014 (H8). This document describes the services provided in some detail.
The policy documents included in Exhibit A1 are:
(a)Intergovernmental Agreement for the National Disability Insurance Scheme (NDIS) Launch (H6);
(b)Report of the Commonwealth Ombudsman on the National Disability Insurance Agency’s Handling of Reviews, May 2018; and
(c)Submission by the Commonwealth Ombudsman on the Review of the National Disability Insurance Scheme Act 2013, 13 November 2019.
RACV package
Mr Deayton submitted that he had previously been funded for an RACV Total Care package and did not understand why he had to go through this again. In evidence he described the experience of coming back from an event and breaking down, and could not ride with the truck driver and had to take a taxi. The Total Care package, he stated, includes wheelchair assistance.
At the hearing, discussion focused on the scope of the request and the documents provided by Mr Deayton, being a car insurance quote for his vehicle as unmodified, by way of benchmark, and the actual policy summary and premium for his own vehicle (H9 and 10), and a quote for RACV Roadside Assistance (H23). The difference between the two sums is some $550, that is, the actual premium is nearly double the quote obtained for the unmodified vehicle. The difference between standard and premium levels of care is approximately $140.
The Respondent’s representative submitted that both items were day-to-day items, but that if the supports were to be accepted, it would be necessary to obtain more current quotes as those provided were from 2016. In its SFIC, the Respondent states the quotes do not provide a breakdown of specific components related to Mr Deayton’s disability.
Electricity charges
In its SFIC and in submissions at the hearing, the Respondent submitted that there was no evidence to suggest Mr Deayton had difficulty with thermodynamic regulation, that is, a lack of particular evidence linking the air conditioning support to his disability.
At the hearing I asked Mr Deayton to explain what the connection was. He responded that it was extremely difficult to answer given the variation that exists in nemaline myopathy. He stated that the air conditioning was required because he was being affected by becoming lethargic and it gives him the ability to function day-to-day. Mr Deayton stated that he was currently (that is, during the hearing) using a heater on his feet and muscle function is affected by heat; a situation amplified in his case.
Mr Deayton stated that he had revised the figure of 2,000 kWh additional usage he had previously estimated and believed it now to be in the order of 2,500 kWh. I asked Mr Deayton the nature of usage and he stated that he used the system every day, bar a nice day, that is 95% of the time. The Respondent’s representative asked Mr Deayton if he had tried other means of regulating temperature. Mr Deayton responded that that was a question for a doctor but that while he was able to dress himself, it was not easy to get jumpers on and off. As clothing can be restrictive, Mr Deayton states that he also drinks to keep cool but it makes little difference.
In respect of the clothes dryer usage, Mr Deayton stated that he began using the dryer as his condition deteriorated. He estimated that it is used once a fortnight for his washing and also for his sheets, and once a month for towels. Mr Deayton stated it was not convenient for his home care worker to help to hang out washing as it would not then be brought back in, and his home care worker puts the washing into the dryer.
The Respondent’s representative submitted that there was a lack of objective medical evidence and that Dr Jeffrey’s 2012 report was prepared for a different purpose. There was, furthermore, no evidence in relation to the issue with washing. It was also submitted that this was not funded under the earlier ISP because of the payment of a government subsidy, which was described as a Victorian government medical cooling concession.
Mr Deayton stated that the medical cooling concession was in relation to his wheelchair to cover its night-time charging and he did not consider that the concession covered the actual cost incurred.
Accommodation costs
Mr Deayton confirmed that the support relates to the cost of assistance arising from travel. The context for the support was that the Applicant had previously been able to travel alone, for example to Sydney and regional Victoria albeit with a stopover. His last travel before his leg break had been to Port Macquarie. Mr Deayton then stated that he has stopped driving. He stated that there are days he can drive, and days he cannot. I asked Mr Deayton directly how long it had been since he drove and he stated that it had been over a year, and that he had safety concerns about his ability to turn the steering wheel.
Mr Deayton stated that he had funding under his ISP in the past for approximately $900 and stated that support was needed for the difference in cost between a standard room and an accessible room. By way of example he stated that when travelling to Port Macquarie he stopped at Gundagai and there was an accessible room with one bed only, meaning he could not share with a companion, leading to extra cost. He stated that he may need to allow for unexpected stops as well.
The Respondent’s representative stated that there was no objective evidence as to the additional expenses or whether comparable accommodation was available. It was also questioned how such support would contribute to Mr Deayton’s goals, particularly as he had stopped driving.
Mr Deayton responded that he did not accept the level of justification being sought. His attitude, he stated, is that if it is a good day, he will decide what he wants to do; he does not have a crystal ball. Further, in his experience, an accessible room was always more expensive than a standard room.
Airfare
The Respondent’s representative submitted that there was a lack of evidence about Mr Deayton’s particular needs on a plane. Mr Deayton stated that documentation about flight concessions had indicated that flight staff would not provide the personal and intimate support he was likely to need, given that he may have continence issues. It may be that he would require assistance with eating, or with his clothing. Mr Deayton stated the last time he flew was in 2006, he was accompanied by his niece, and he was able and mobile at the time. He stated his doctor’s letter indicated that he needed assistance if he goes out.
Foxtel
Mr Deayton stated that he had Foxtel installed before starting to claim part payment in his ISP. He stated that he had been informed it was not to be funded, and after the request was put in and formally rejected it was granted by VCAT.
The Respondent’s representative reiterated the submission in the SFIC, that this is a daily expense not attributable to support needs. The SFIC adds that there may be cheaper alternatives and Foxtel may not represent value for money.
I asked Mr Deayton whether he could follow the football on free-to-air broadcasts and the races on the radio. He stated that you may never hear your horse called until it is past the finish line, although his horse won a Country Cup on Oaks Day in 2019. Mr Deayton stated that he has shares in a syndicate and it is a big part of his social life.
Mr Deayton was asked by the Respondent’s representative to clarify why Foxtel was necessary. He stated that race meetings are not live streamed and then referred to the Australian Constitution. Mr Deayton submitted that the Federal Government cannot take something over unless the States agree. He stated further that s 118 of the Constitution deals with recognition of state laws and that he had come to an agreement at VCAT. In addition, it was a matter of public record that no one will be disadvantaged in the transition to NDIS.
Mr Deayton was asked how the cost of Foxtel compared with attendance at events in person. He responded that this had already been covered before and the cost of getting to events had been taken into account. Mr Deayton stated that he would prefer to attend in person although it would depend on his ability on the day. I asked Mr Deayton when he last attended an event and he responded December 2018, noting that ‘one year’ he attended five cup meetings. Mr Deayton stated that Foxtel helps with his sanity and he was becoming depressed.
The Respondent’s representative submitted that entertainment costs are borne by everyone in any event, whether online or in person. It was not possible to determine an additional cost arising from the disability in this case because the cost would be incurred anyway. Mr Deayton submitted in reply that this was the reason a part contribution had been requested.
SUBMISSIONS
In closing submissions, the Respondent’s representative emphasised the fact-intensive nature of the inquiry in determining a reasonable and necessary support. Reference was made to ss 33 and 34 of the Act, and the decisions McGarrigle and WRMF (extracts of which also appear in the Respondent’s SFIC). Reference was also made to Rules 3 and 5 and the NDIS Operational Guidelines (T11).
With respect to Mr Deayton’s submission that a principle of ‘no disadvantage’ should be applied, it was submitted that such a concept did not have statutory force, and that any such concept would not apply to individual supports, but to assessing the whole package of supports. The Respondent’s representative submitted that the Intergovernmental Agreement did not establish an obligation to fund under the NDIS supports that were previously funded by a State. Moreover, the agreement could not bind the Agency, and was itself not enforceable on its own terms (H6, p 45 at [134]).
It was submitted that the term ‘no disadvantage’ is not incorporated into the Intergovernmental Agreement (IGA). However it was also submitted that the Operational Guidelines (T11, p 274) refer to the principle, and to s 118(2)(a) of the Act, which requires the Agency to use its best endeavours to act in accordance with ‘any relevant intergovernmental agreement’.
Specific submissions made with respect to the individual supports in question here were broadly consistent with those summarised above. In short, the Respondent maintained the position that the evidence that was available with respect to supports was dated or general in nature.
It was conceded that, given Mr Dayton’s evidence, the Agency may not have previously well understood the need for a carer or support worker during travel. However, given that the evidence indicated Mr Deayton had not flown since 2006, evidence from a medical practitioner or allied health professional about Mr Deayton’s current circumstances would be needed.
In relation to the Foxtel subscription, it was also submitted that Mr Deayton has funding allocated for support with transport and journeys outside the home.
In summary, the Respondent’s representative submitted that the Tribunal was required to reach a state of being positively satisfied that the denied supports were both reasonable and necessary. While the Applicant’s statement of lived experience is relevant, the Act, Rules and Guidelines provide the relevant decision-making framework. Reference was made in particular to guidelines 10.5 (T11, p 267) regarding value for money considerations, and 10.6 (T11, p 268) regarding whether a support is effective and beneficial having regard to good practice.
Mr Deayton commenced his oral submissions by referencing the Australian movie ‘The Castle’. He submitted that the NDIA was acting against the Constitution (citing the well-known phrase – ‘it’s the vibe’). In this context, s 118 of the Constitution was extremely relevant as it related to the way the Federal Government should act when taking something over from the State. Mr Deayton submitted his ISP was under state law and therefore must be given credit.
Mr Deayton cited the General Principles in s 4 of the Act. These included (s 4(17)) that the Agency perform its functions and powers consistent with the principles, which include (s 4(8)) that people with disability be able to ‘determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity’. Mr Deayton stated that he had not been spoken to or involved in the review of his plan.
Mr Deayton further submitted that it had not been demonstrated that the supports were not reasonable and necessary to maximise his goals, and the decision impacts his ability to be independent. He submitted that he had already been through this in his previous ISP. Mr Deayton declined to go into more detail about the evidence in relation to specific supports, but noted that the matter of thermal regulation was clear from that fact that ‘any athlete will tell you they need to warm their muscles up’.
Finally, Mr Deayton cited the Preamble to the United Nations Convention on the Rights of Persons with Disability (UNCRPD),[2] which recognises the diversity of persons with disability. This, he submitted, ‘all needs to come into consideration’. He also cited the concept of ‘reasonable accommodation’, which involves necessary and appropriate adjustment to ensure persons with disability enjoy, on an equal basis, human rights and fundamental freedoms. Personally, Mr Deayton stated he sought the ability to maintain his independence.
[2] Opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008).
In submissions provided following the hearing, the Respondent cited a number of decisions. I consider the decision in McLaughlin and National Disability Agency [2021] AATA 496 (McLaughlin) (handed down on the day of the hearing in this matter) particularly relevant. It is cited for the finding made that the no disadvantage principle does not supplant the statutory criteria for determining reasonable and necessary supports (at [128]–[130]). It is also cited for its findings in relation to the issue of day-to-day living costs, noting that the Tribunal in that decision found in favour of one support, and against another, based on the interpretation of evidence in respect of the nexus between the person’s disability and the support in question. The Tribunal found in favour of additional running costs of a private vehicle which it found fell within the ‘carve-out’ provision in Rule 5.2(a) of the Rules (at [125]).
CONSIDERATIONS
It is appropriate to first address Mr Deayton’s more fundamental submissions which centre upon his argument that supports previously funded under his ISP should have been included in his NDIS plan.
The Intergovernmental Agreement includes as Annex A (H6, pp 48–52) the text of ‘high-level’ principles released by the Council of Australian Governments following the release of the Productivity Commission report on Disability Care and Support. Here it is stated in Principle 1 (at point (l)) that the NDIS should recognise best practice at the State and Territory level to ‘[p]rovide continuity of support to people with disability currently receiving services to ensure they are not disadvantaged in the transition …’.
I also accept that there is reference in s 118 of the Act to best endeavours with respect to any intergovernmental agreement. However, as noted in the Operational Guidelines, the concept of no disadvantage is not found in the IGA, and I am unable to accept that the IGA itself should guide decision making in the way contended by Mr Deayton. This is a consequence of the nature of administrative decision making in the context of the NDIS, where a decision must be made consistent with the federal statutory framework.
As a matter of practical reality, it must also be acknowledged that the participant needs and support options may change from plan to plan, within the NDIS, let alone across different schemes. Perhaps more importantly, and in the specific context of this matter, I must note that the evidence before me does not provide any real certainty as to what was previously funded. I do not discount Mr Deayton’s evidence and submissions on this point, but I am not satisfied that I have adequate evidence of the nature of his ISP prior to transition to the NDIS to base any relevant consideration or finding.
Mr Deayton cited the Constitution in support of a proposition, broadly, that discussions or outcomes of some form apparently in relation to a VCAT proceeding should have weight in the Tribunal. The Constitution also was cited in support of the need to recognise Mr Deayton’s previous ISP support. The provision relied upon is found in Chapter V dealing with the States and s 118 provides: ‘[f]ull faith and credit shall be given, throughout the Commonwealth, to the laws, the public Acts and records, and the judicial proceedings of any State’.
Briefly, I understand this provision to establish what has been described as ‘inter-state official and judicial reciprocity’ or the ‘national character’ of law throughout the Commonwealth.[3] It is not evident to me that the Constitution assists Mr Deayton in the way he proposes and, as noted above, I am required to apply the statutory criteria in considering reasonable and necessary supports.
[3] See the helpful discussion in Red Energy Pty Ltd v Saxton [2019] FCCA 86 at [35]–[36], in particular the references to the decision of the High Court in Breavington v Godleman (1988) 169 CLR 41, and to Quick and Garran’s Annotated Constitution of Australia.
I note also Mr Deayton’s appeal to the UNCRPD. The first stated object of the Act is to give effect, in conjunction with other laws, to Australia’s obligations under the UNCRPD (s 3(1)(a) of the Act). I consider that the Applicant’s reference to diversity was to reinforce the submissions that the supports in contention should be considered in the context of his particular experience of his condition. I am not able to identify Mr Deayton’s application as raising issues relating to the concept of reasonable adjustment.
I will now consider the specific supports requested by Mr Deayton, in the context of the need to satisfy the requirement they be considered reasonable and necessary, with reference to the criteria specified in s 34 of the Act, and, as needed, to the guidance provided in the Rules.
RACV package
As I understand the evidence, Mr Deayton lost confidence in his driving ability due to a deterioration in his strength as a result of his condition. This evidence arose in relation to a discussion at the hearing about another support, somewhat incidentally. His evidence does appear to be supported by medical evidence that indicates a change in Mr Deayton’s physical capabilities.
Mr Deayton gave evidence that he had previously driven to wheelchair sports events, and wished to participate in them again in the future. He provided some written evidence of the premium costs of insurance. He gave evidence about the nature of roadside assistance coverage, and his personal experience in an emergency while driving.
I have little difficulty with the proposition that Mr Deayton’s particular needs in maintaining and using his modified car for sport and other activities relates directly to his disability, and could, ordinarily, meet the criteria in s 34(2) of the Act. I have also taken into account the decision in McLaughlin in which the Deputy President, in that matter, appears to have come to a broadly similar conclusion in an analogous situation, but in respect of a slightly different range of operating costs.
I have also taken account of the commentary in that decision with respect to the interaction of ss 33 and 34 of the Act on what is ‘reasonable and necessary’ (McLaughlin, at [62]–[84]). I am satisfied that there is sufficient evidence to indicate that, at present, Mr Deayton is not in a position to enjoy the support requested, given his physical limitations. For this reason only, I am unable, on the evidence available, to find that the requested support could meet the statutory test of reasonable and necessary.
Electricity costs
Mr Deayton has put some effort into quantifying as best he can the marginal additional cost that he attributes to the use of air conditioning, and his clothes dryer.
The medical evidence provided is largely consistent with Mr Deayton’s evidence at the hearing. I note, for example, that Dr Jeffrey refers to the need for heating and cooling, but stresses the importance of Mr Deayton’s difficulty in managing the heat (meaning that cooling is a priority). The Applicant’s own evidence was that the system was in use 95% of the time, meaning that there is broadly no particular distinction, at least in Mr Deayton’s mind, between the two modes.
I accept that there is adequate evidence that because of his condition, Mr Deayton is unable to avail himself of natural drying options. I note the evidence also shows that Mr Deayton has assistance in performing his washing and drying chores, however the usage, regardless of who turns the dryer on, is apparently relatively modest. On this basis, I am unable to find that there is an additional living cost arising from the relatively ordinary level of usage of a clothes dryer.
There was some evidence about Mr Deayton’s receipt of electricity concessions, which I assume arises due to his status as a recipient of the DSP, however I am unable to make any relevant use of this information without more specific submissions.
While I am generally persuaded on the evidence that Mr Deayton may bear marginally higher electricity costs as a result of his disability, unfortunately the state of the evidence overall does not permit me to make a finding in his favour. There remain too many imponderables about how to relevantly quantify the scope of this argued marginal cost difference, although I acknowledge Mr Deayton’s attempt to do so.
Disability specific accommodation
The evidence on this support focused largely on Mr Deayton’s past experience participating in disability sports events, which he attended when still driving. I am not certain that it is appropriate to link this support to Mr Deayton’s capacity to drive, and so while I have not been persuaded that supports related to driving are reasonable and necessary, the same may not follow for this item.
Somewhat in common with the previous support, however, this matter seems to turn in large part upon the state of the evidence. I understand Mr Deayton’s position to be that his goals and desire for social participation justify the support of additional marginal accommodation costs. I consider that while, in theory, this proposition is acceptable, I do not have an adequate information base on which to make a useful substantive decision. That evidence base is a necessary first step before taking into account submissions, which may well vary, about the existence of the stated need, and appropriate options in responding to it.
Accordingly, I am unable to make a positive finding that this is a reasonable and necessary support.
Airfare for companion
I note the concession in the submissions made on the Respondent’s behalf that Mr Deayton’s evidence at the hearing provided useful insight into the likely nature of his needs if travelling by air. I accept that Mr Deayton has investigated the issues around concession travel, and the sorts of assistance available to persons in his situation.
The evidence is that Mr Deayton apparently has not flown for many years but this is probably not definitive; he is in fact asking for support to fly. His plan does appear to include funding for a support person for certain activities; however, the nature and extent of this funding was not explored at the hearing.
While I have found the medical evidence, such as it is, in relation to Mr Deayton’s ability to deal with temperature regulation at home somewhat persuasive, I do not consider there to be sufficient evidence about his condition currently to make a defensible finding about this particular support. I do not doubt Mr Deayton’s own description of his possible needs, but I consider it reasonable, as submitted on the Respondent’s behalf, that there be a more objective basis for providing the support requested.
Part payment of Foxtel subscription
Mr Deayton has provided evidence about his particular circumstances which present a slightly unique set of interests. I do not think the Applicant’s history of participation or general interest in sport is necessarily far outside what might be considered normal.
Evidence on the specific benefit of a Foxtel package was not explored in great detail at the hearing. I accept that it should not be confined to sports, but this was a focus of discussion. Mr Deayton was of the view that he could not follow racing in the way he desired through other channels, such as radio. I accept that this might be a fair statement of reality, and of his preference.
I accept that a cogent rationale has been provided by Mr Deayton for his use of Foxtel. I do not dispute that he has related it to his goals and objectives, and his social participation. I expect, although this was not addressed at the hearing, that the cost is reasonable, and that it would have a beneficial effect on Mr Deayton.
However, I am not satisfied that the support is related to Mr Deayton’s disability. I think the better view is that Foxtel is merely one of a number of means by which he can obtain information and entertainment, including about horse racing. Equally, there is some merit in the argument that this is the kind of experience and expense that many Australians choose to fund as part of their daily cost of living.
Accordingly, I find that this support is not reasonable and necessary in the terms of the Act.
CONCLUSION
I made passing reference above (at [32]) to correspondence that was prepared by the Respondent in the earlier phases of this matter in the Tribunal. I acknowledge that this represented an attempt to bridge some of the information gaps, as the Respondent saw them. Given my findings, it is unfortunate that relevant information could not be sourced or provided in some way.
I consider that key information, data and evidence is important not only to quantify particular support requests, but to validate the underlying need. Without such material, it is difficult to develop an adequate understanding of the burden an applicant is seeking to address. This, indeed, is only the starting point for the inquiries established in the framework provided by the Act. In this instance, Mr Deayton’s direct evidence was helpful, and credible, however the absence of a robust evidence base overall has left important matters unable to be resolved to an appropriate standard of satisfaction.
DECISION
For the reasons given above, the Tribunal affirms the decision under review.
I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member
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Associate
Dated: 28 May 2021
Date of hearing: 12 March 2021 Date final submissions received: 19 March 2021 Applicant: By telephone Counsel for the Respondent: Mr Ryan Kornhauser Solicitors for the Respondent: Mr Christopher Bilboe, National Disability Insurance Agency
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