Defa and The CEO, National Disability Insurance Agency (NDIS)
[2024] ARTA 34
•7 November 2024
Administrative Review Tribunal
Applicant/s: Lelisa Defa
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/4954
Tribunal: General Member N Purcell
Place: Sydney
Date: 7 November 2024
Corrigendum
Date of Corrigendum: 19 November 2024
The Tribunal directs the Registrar, pursuant to subsection 114(1) of the Administrative Review Tribunal Act 2024 (Cth) to alter the text of the decision in this application as follows:
1.The Respondent is amended to “The CEO, National Disability Insurance Agency”.
2.The word ‘ofte’ is corrected to ‘often’ in line 10 of paragraph 35(a).
3.The word ‘who’ in line 1 of paragraph 35(g) is removed.
4.The word ‘with’ in line 7 of paragraph 59 is replaced with ‘concerning’.
5.The words ‘Rule 3.2’ is replaced with ‘Rules 3.2 and 3.3’ in line 1 of paragraph 77 and the word ‘provide’ is replaced with ‘provides’.
6.The word ‘were’ is replaced with ‘was’ in line 2 of paragraph 109.
7.The sentence ‘Mr Defa did not mention that he travelled with his wife to Ethiopia’ is replaced with ‘Mr Defa did not mention in his statement filed 2 weeks before the hearing that he travelled with his wife to Ethiopia’ in paragraph 117.
8.The words ‘whether he had ever had a nurse’ are replaced with ‘whether he had ever had support from a nurse’ in line 2 of paragraph 124.
9.
The words ‘At hearing, Dr Vadasseri said’ are added to the beginning of the second sentence in line 2, paragraph 169 and the words ‘Mr Defa provided no information’ are replaced with ‘Mr Defa did not provide information’ at line 6 of paragraph 169.10.The words ‘a letter to Mr Defa from the TAC dated 17 January 2024 informed him’ is replaced with ‘the TAC informed Mr Defa by letter dated 17 January 2024 that’ at paragraph 426.
........................[SGD]...........................................
General Member N Purcell
Decision and
Reasons for DecisionDefa and The CEO, National Disability Insurance Agency (NDIS) [2024] ARTA 34 (7 November 2024)
Applicant/s: Mr Lelisa Defa Respondent:
The CEO, National Disability Insurance Agency
Tribunal Number:
2023/4954
Tribunal:
General Member N Purcell
Place:
Sydney
Date:
7 November 2024
Decision:
The Tribunal affirms the decision under review.
........................[SGD]................................................
General Member N Purcell
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – participant supports – reasonable and necessary supports – pain – depression – PTSD – multiple health conditions – comorbidities – credibility issues – inconsistent evidence – self-reports – expert witnesses – procedural fairness – accessibility – Rule 5.1 – cause harm – dependency – deconditioning – selflimiting behaviour – entrenchment of illness – psychosocial treatment & recovery – focus on capacity building – independence – reduction in support worker hours – transitional period – need for reassessment.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth)
The National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth)
CASES
McGarrigle and National Disability Insurance Agency [2017] FCA 308
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979)
2 ALD 634
Beezley v Repatriation Commission [2015] FCAFC 165
National Disability Insurance Agency v WRMF [2020] FCAFC 79
SECONDARY MATERIALS
Operational Guidelines – Reasonable and Necessary supports, 22 September 2024.
Operational Guideline – Including specific types of supports in plans, 10 June 2022.
Psychosocial Disability Recovery-Oriented Framework, 2021.
Statement of Reasons
INTRODUCTION
1.Mr Defa is a 41-year old man who lives in a suburb of Melbourne. He was granted access to the scheme on 25 August 2020. Mr Defa lives with a range of medical conditions including Type 1 diabetes and coronary heart disease. He was diagnosed with Post Traumatic Stress Disorder (PTSD) and Major Depressive Disorder (MDD) after witnessing a motor vehicle accident in which a cyclist was killed in February 2019.[1]
[1] T1A of JHB1.
2.A number of other conditions were also raised during the proceedings which will be discussed below including obstructive sleep apnoea (OSA), bilateral shoulder bursitis, chronic back pain, hypertension, gout, combined hyperlipidemia/hypercholestoralemia (high cholesterol), obesity, gastro-oesophageal reflux disease (GORD), memory issues, cognitive decline, Chronic Cerebral Small Vessel disease/Cerebral Microvascular Ischemia, hepatic steatosis (fatty liver disease), developmentally small lumber spinal canal, erectile dysfunction, bladder and prostate issues, cancer and strokes.
THE DECISION UNDER REVIEW
3.Mr Defa seeks external review of an internal review decision made by the National Disability Insurance Agency (the Respondent) on 22 June 2023. This decision affirmed an earlier decision dated 17 May 2023, to approve a Statement of Participant Supports (SOPS). Mr Defa applied to the Administrative Appeals Tribunal (AAT) pursuant to section 103 of the National Disability Insurance Act 2013 (Cth) on 5 July 2023. The AAT was abolished on 13 October 2024 after Mr Defa’s hearing concluded and before the decision of the Tribunal was finalised. The Administrative Review Tribunal (ART) began on the 14 October 2024. By virtue of the transitional arrangements, Mr Defa’s matter was automatically transferred to the ART.[2]
[2] Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
4.The issue before the Tribunal is whether the Applicant satisfies the criteria of the National Disability Insurance Scheme (‘the NDIS’ or ‘the scheme’) in accordance with sections 33
and 34 of the National Disability Insurance Act 2013 (Cth) (‘the NDIS Act’ or ‘the Act’) in relation to the following requested supports:
(a) 7 hours per day of registered nursing support; and (b) 17 hours per day of support worker assistance.
5.Mr Defa contends these supports are reasonable and necessary owing to his impairments, comorbidities, and the complexity of his medication regime. The Respondent contends that although Mr Defa lives with several complex medical conditions, the evidence is insufficient to demonstrate that his impairments are such to require nursing support, or the hours of support worker assistance requested.
BACKGROUND
6.By way of background, Mr Defa’s plan dated 4 August 2022 (36 months) (Plan 1) included core funding of $287,548 per annum. This provided for (amongst other things) 10 hours per day of support worker assistance. The next plan dated 17 May 2023 (12 months) (Plan 2) included core funding of $292,659 per annum. This also allowed for 10 hours of support worker assistance per day. This plan changed the management of Mr Defa’s funding to agency managed following concerns about funds being used for supports not included in his SOPS.[3]
[3] See A1 of JHB2, p15-16.
7.As mentioned above, Mr Defa sought internal review of the 17 May 2023 decision, citing concerns that changes to management of his NDIS funds would interfere with his ability to access supports, including his psychologist, as they were not registered NDIS providers.[4] He also provided additional information to the Respondent at this time, submitting a change in circumstances form and requesting 20 hours per day of support worker assistance. Mr Defa obtained a report from occupational therapist, Mr Andrew Sletcher, (discussed further below) in support of this request.[5] Following the provision of this additional information, the Respondent conducted a section 48 plan reassessment.
[4] This issue was not pressed at hearing and Mr Defa’s NDIS funds will continue to be agency managed.
[5] C15 of JHB1.
8.On 23 November 2023, the Respondent wrote to Mr Defa to inform him of its decision.[6] The decision resulted in the commencement of a new plan, including core funding of $145,011 (Plan 3). This plan had the effect of reducing Mr Defa’s support worker assistance to 5 hours per day (2 hours per day for home and living needs such as personal care, meal preparation and cleaning and 3 hours per day for community participation).[7] In explaining its decision, the Respondent wrote:
[6] D1 of JHB1.
[7] A1 of JHB2, p14.
At this stage there is not enough evidence to determine that you require additional hours to assist you with managing your disability specific needs. This funding, along with other supports included in your plan, has the potential to help you build capacity and achieve your goals. There is no information regarding the strategies or exercises that have been recommended to help you build your physical and cognitive capacity, nor is there record keeping regarding progress and development in relation to what has worked and what has been unsuccessful.[8]
[8] D1 of JHB1, p392.
9.Mr Defa’s current plan dated 16 April 2024 (Plan 4) also provides 5 hours of support worker assistance per day.[9] By reason of section 103(2) of the NDIS Act, the decisions to approve the SOPS in Plans 3 and 4 are also before the Tribunal.[10] Plan 4 was varied pursuant to section 47A of the NDIS Act on the 25 October 2024. This provided for a 6-month extension of his current plan on a pro-rata basis while awaiting a decision of this Tribunal.
[9] B2 of JHB1, p238 – 239.
[10] The Tribunal made a 42(D) remittal order under the AAT Act on 3 April 2024 due to depletion of funding in Mr Defa’s plan.
10.Mr Defa’s current plan includes $1,500 low-cost assistive technology, none of which had been used as of July 2024 and $1,784 for transport.[11] Capacity Building supports include the following:
[11] A1 of JHB2, p13 12 A1 of JHB2, p13.
•24 hours per year for psychology supports (stated)
•21 hours per year for physiotherapy
•45 hours per year for other therapies.12
11.Apart from using his capacity building funding for fortnightly psychology sessions, Mr Defa has only used $775.96 for occupational therapy, presumably for Mr Sletcher’s report
(discussed below).[12]
[12] A1 of JHB2, p13.
12.The last four plans appear to have included 36 hours for Specialist Behaviour Intervention support and 24 hours for a behaviour management plan. There was no evidence before the Tribunal indicating behaviours of concern, and rightly, Mr Defa has not utilised this funding.
13.By way of explanation, there will be some references in this decision to the Traffic Accident Commission of Victoria (TAC). The TAC is a Victorian Government-owned organisation set up to pay for treatment and benefits for people injured in transport accidents, amongst other things. It was established under the Transport Accident Act 1986 (Vic) and operates as a commercial insurer providing coverage to injured Victorians regardless of fault.[13]
[13]
DIRECTIONS HEARINGS
First Telephone Directions Hearing – 3 May 2024
14.The first telephone directions hearing (TDH) was held on 3 May 2024. Mr Defa was supported by Ms Chuye Siarot from Action on Disability within Ethnic Communities (ADEC) and his regular support worker Mr Haisam Rifaie. During that hearing, the Tribunal arranged for a referral to Victoria Legal Aid for a one-off advice session that applicants can access prior to final hearing. The Tribunal understands Mr Defa utilised this service.
15.The Tribunal discussed the steps to progress the matter to hearing with the parties and made standard directions to that end. The Tribunal also explained that the hearing would primarily focus on how impairments arising from medical conditions impact Mr Defa’s day to day functioning and support needs, not necessarily conditions or diagnosis themselves. Noting that Mr Defa had already filed evidence indicating many appointments with medical practitioners, the Tribunal directed:
On or before the 31 May 2024, the Applicant is to provide a Statement of Lived Experience including a summary of an average week which includes details of:
a) medical or allied health appointment details;
b) daily routine at home (personal care, cleaning, cooking / meals, relaxing, sleep times etc);
c) weekly activities in the community including shopping, socialising and/or exercising);
d) current arrangements for taking medication including the times when each medication is taken or usually taken;
e) how support workers specifically assist you with all the above; and
f) any other relevant information about your daily / weekly life.
Second Directions hearing by video – 8 August 2024
16.The second directions hearing was held by video on 8 August 2024, providing an opportunity for Mr Defa to meet counsel for the Respondent, Ms Natalie Blok and the Tribunal prior to the hearing. The Tribunal indicated it would explain the hearing process to Mr Defa, answer any questions and deal with pre-hearing administrative matters.
17.The day before the directions hearing, the Respondent sent through 14 requests to issue summons to obtain records from various hospitals and treating practitioners. The Respondent submitted that the Tribunal required more evidence to understand the need for the large number of support hours requested by Mr Defa and indicated they wanted several of his treating medical and allied health practitioners to give oral evidence at the hearing. Mr Defa did not object to the issuing of summons. The Tribunal noted the return and review of summons material had the potential to interfere with the listed hearing dates of 3 to 5 September 2024.
18.Both parties wanted to avoid a delay with the hearing. The Tribunal was able to schedule 4 extra days to accommodate the additional witnesses, allowing for the hearing to be heard in one block on either side of a weekend. Mr Defa also requested his treating Endocrinologist, Dr Dennis Engler be called to give oral evidence because he had been treating Mr Defa’s diabetes for some time and had good knowledge of his other medical conditions. Mr Defa described Dr Enger as someone who he consulted a bit like his general practitioner (GP) because of difficulties with his actual GP Dr Wang.
19.During the directions hearing, the Tribunal noted it had looked at some of the filed material and understood that a nurse was providing daily support to Mr Defa. The following exchange took place:
Tribunal:Mr Defa, one thing when I was reading through the material yesterday was I couldn’t see any information about the nurse that’s been attending and so I think it’s very important that a statement is provided by the nurse who has been providing, as I understand it, 7 to 10 hours of care each day.
…
Mr Defa: I’m not sure where that information came from, I don’t have any nursing at the moment.
…
Tribunal: Has there ever been a nurse?
Mr Defa: I cannot recall. No, I don’t recall.
…
Tribunal: I was very much under the impression that you currently have a support worker who spends overnight time with you and that you had a nurse who was managing your medication. If that is not the case, then I will need very detailed information from you about who is currently administering and managing your medication and what that looks like.
…
I need to understand what the current situation is, as well as any expert views on what the arrangement should be.
20.The Tribunal made clear that it was very important that Mr Defa and his advocate review the evidence already filed and correct any errors on or before 23 August 2024, when he was due to file any final evidence and his statement of facts, issues and contentions.
21.The Tribunal indicated it wanted to hear from Mr Defa’s support workers and to understand arrangements during his recent trip to Ethiopia including evidence about how long he was away and what supports were in place while he was overseas.
OVERVIEW OF FINAL HEARING
22.The Tribunal held the final hearing by video over 8 days, commencing on Tuesday 3 September and concluding on Thursday 12 September 2024. During the directions hearings, Mr Defa indicated he may not be able to concentrate for more than 1 hour at a time, suggesting it takes time for him to get ready in the morning and for his medications to take effect. To accommodate this, the hearing began at 11am each day.
23.Mr Defa was observed to actively engage in the proceedings each day with most days concluding between 4:30 and 5:30pm. He requested toilet breaks as needed but otherwise appeared to be focused on the evidence each day with occasional signs of fatigue in the late afternoon. Mr Defa reported that he used extra opioid pain medication (Palexia 50mg immediate release PRN) during the hearing which he said helped him to concentrate. This issue will be discussed in more detail below.
24.Mr Defa was not legally represented in the proceedings but had the support of a disability advocate, Ms Siarot, from ADEC. Ms Siarot indicated prior to the hearing that she would not be able to attend the whole hearing due to other work commitments. She did not play an active role in the proceedings.
25.Mr Defa’s main support worker, Mr Rifaie, was present for both directions hearings and most of the final hearing. Prior to Mr Defa giving his oral evidence, Mr Rifaie was asked to remove himself from the room so he couldn’t hear Mr Defa’s evidence.[14] Mr Rifaie gave his oral evidence from his home. Both were informed about the importance of not discussing their evidence. The Tribunal is satisfied this direction was adhered to.
[14] T1 of JHB1, p12-14.
26.Mr Defa gave evidence during three main sessions; on the first day, fourth day and final day of the hearing, however due to the length of the hearing, it was unavoidable that his evidence was interspersed over the other 5 days.
27.The Tribunal permitted Mr Defa to make submissions on issues throughout the proceedings but also reminded him on occasion about the need to refrain from giving evidence in front of other witnesses. In all other respects, the Tribunal observed Mr Defa to effectively self- advocate. Over the course of at least 40 hours of hearing time, Mr Defa was able to:
(a)correct counsel on misheard, misremembered, or misspoken facts;
(b)correct the Tribunal on a mistaken assumption;
(c)object to questions posed by counsel;
(d)raise issues of procedural fairness including a suggestion of actual or apprehended bias by the Tribunal;
(e)recall details of conversations or appointments over a year ago;
(f)ask probing questions of witnesses;
(g)submit that Mr Baldock’s evidence should be struck out on the basis of alleged bias
and/or conflict of interest.
28.Mr Defa demonstrated a level of intellectual acumen significantly at odds with some of the expert evidence filed prior to hearing; a subject of further discussion later in this decision.
29.The Agency was represented by Ms Blok of counsel.
30.In arriving at its decision, the Tribunal has considered the various documents contained in the joint hearing bundle (JHB1) and the supplementary joint hearing bundle (JHB2) which were accepted into evidence. This included a set of documents filed by the Respondent pursuant to section 37 of the now repealed Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) (‘T-Documents’) and the Respondent’s Statement of Facts, Issues and Contentions (SOFIC) dated 26 July 2024.[15] Mr Defa also filed several statements or written documents dated 11 September 2023,[16] 25 October 2023,[17] 30 May 2024,[18] 19 August 2024,[19] and a SOFIC dated 20 August 2024.[20] He filed extensive medical and psychological documents which are included in the two joint hearing bundles and referred to throughout this decision.
[15] Joint Hearing Bundle (JHB).
[16] C10 of JHB1.
[17] C14 of JHB1.
[18] C21 of JHB1.
[19] B2 of JHB2.
[20] B3 of JHB2.
31.The Tribunal was also assisted by material obtained under summons. The following individuals or organisations were summoned to provide relevant records:
(a)Alfred Health (hospital)
(b)Dr Frank Laska - Rheumatologist
(c)Dr Ganga Ganesvaran – Neurologist and Geriatrician
(d)Melbourne Pain Group
(e)Monash Health (hospital)
(f)Professor Sree Appu – Urological Surgeon
(g)Stud Road Medical Centre
(h)Victorian Neuropsychology Rehabilitation Services
(i)Melbourne Heart Care
(j)St John of God, Berwick (hospital) (k) Dr Melanie Bertino – Clinical Psychologist (l) Digestive Health Centre.
32.The material produced totalled around 5000 pages. Relevant material was marked and admitted into evidence with the consent of the parties and is contained in Annexure A. Some additional material filed during and after the hearing was also admitted by the Tribunal with consent. The indexes of JHB1 and JHB2 are also included in Annexure A for ease of reference.
Witnesses
33.In addition to Mr Defa, the following 11 witnesses, in order of appearance, were summoned to give oral evidence based on their professional knowledge, expertise and/or experience providing services or support to Mr Defa. They each provided reports or letters which were filed with the Tribunal prior to the hearing (except for support worker Mr Ashanafi Teklemaniot).
34.Independent occupational therapist (OT) Mr Adam Baldock, was the only witness who was not a treating practitioner or service provider. Mr Baldock was engaged by the Respondent to conduct an independent functional capacity assessment as part of these proceedings. Mr Defa declined to participate in a face-to-face assessment with Mr Baldock and therefore his report was prepared ‘on the papers’.
35.The following is a brief overview of the witnesses who gave oral evidence, all of whom were observed to be honest:
(a)Dr Dennis Engler – treating Endocrinologist and Clinical Associate Professor of Diabetes, Endocrinology and Internal Medicine at Monash Health. Dr Engler first saw Mr Defa in 1998 at the Young Adults Diabetes Service before he transferred across to his private practice in May 2019.[21] Dr Engler sees Mr Defa about every 3 to 6 months depending on what issues have arisen and is Mr Defa’s longest treating practitioner. Mr Defa indicated to the Tribunal that he consults Dr Engler like a GP[22] including in relation to his brain and back issues. Dr Engler has also provided referrals to other specialists.[23] Dr Engler told the Tribunal Mr Defa’s Type 1 diabetes is well treated and managed. Dr Engler has strong medical expertise, however it appeared he often accepts whatever Mr Defa tells him. At times Dr Engler appeared to consult with Mr Defa about his oral evidence, suggesting he had adopted a tendency towards advocacy on his behalf.
[21] C23 of JHB, p377.
[22] Transcript, Day 1, p18.
[23] Transcript, Day 8, p676.
(b)Dr Xiao Nan Wang – treating General Practitioner has been Mr Defa’s treating GP since at least 2018.[24] Dr Wang’s knowledge of Mr Defa’s various medical conditions appeared to be quite limited given the regularity of their consults. The parties and the Tribunal agreed that it appeared Dr Wang’s memory was not particularly reliable as he could not recall seeing Mr Defa in person at all in 2024 (contrary to clinic records).[25] It also appeared there was some existing tension between Mr Defa, Dr Wang and possibly other GPs at the Stud Road Medical Centre about the amount and frequency of Palexia pain medication prescribed to Mr Defa.
[24] T2 of JHB1, p64 [8-9].
[25] T2 of JHB1, p67 [0-24].
(c)Dr Emily Kotschet – treating Cardiologist at Melbourne Heart Care. She has overseen Mr Defa’s cardiac issues for about 4 years. Dr Kotschet initially saw Mr Defa monthly but now sees him about every 3 to 6 months. She gave evidence that Mr Defa’s cardiac issues are well managed however there is no cure for his artery spasm and he still reports chest pain.
(d)Dr Melanie Bertino – treating Clinical Psychologist has provided regular counselling support to Mr Defa for about 5 years. She initially saw him in person at his home, in the months after Mr Defa witnessed the accident involving a motorcyclist in 2019. All sessions have been conducted via video call since COVID19. It appeared to the Tribunal that Dr Bertino largely accepts whatever Mr Defa tells her and the Tribunal has some concerns about the efficacy of the therapeutic approach adopted over the past several years. It appears little progress has been made in terms of treating Mr Defa’s PTSD with Eye Movement Desensitization and Reprocessing (EMDR) despite her plan to do so since 2019.
(e)Mr Mina Youssef – Pharmacist has provided pharmacy services to Mr Defa over several years. He provided frank and helpful evidence, clarifying for the Tribunal the current medications prescribed and dispensed on a regular basis to Mr Defa.
(f)Mr Andrew Sletcher – treating OT graduated in 2022 and works for Astrad Occupational Therapy, a mobile OT company based in Brisbane. Mr Sletcher was engaged by Mr Defa to conduct a functional capacity assessment in September 2023, in support of his ‘Change in Circumstances’ application to the Agency. Mr Sletcher had 9 months experience as an OT when he assessed Mr Defa for 2 hours on one occasion. Mr Sletcher’s limited experience conducting assessments and his apparent willingness to accept claims by Mr Defa without corroborating evidence was evident in his report.
(g)Dr Srirekha Vadasseri – former treating Psychiatrist has over 10 years’ experience as a psychiatrist. She began treating Mr Defa under the Traffic Accident Commission of Victoria (TAC) insurance program in June 2020. Dr Vadasseri ceased providing services to Mr Defa in November 2023 when his TAC funding ended. Significantly, despite Dr Engler indicating that Mr Defa’s pain should be treated or reviewed by a pain management specialist,[26] Dr Vadasseri confirmed that she only ever provided psychiatric treatment in relation to Mr Defa’s PTSD and depression (although she does have qualifications in pain management).
[26] T1 of JHB1, p41.
(h)Ms Alana Collins – Clinical Neuropsychologist at Invictus Health has been working as a neuropsychologist since 2021. She was engaged by Mr Defa in July
2023 to conduct a neuropsychological assessment and write a report in support of his request to the Victorian Civil and Administrative Tribunal (VCAT) to appoint his father as his financial administrator.
(i)Mr Haisam Rifaie – Support Worker has worked with Mr Defa for at least one year through The Care Network (TCN), a registered NDIS provider. Various records suggest Mr Rifaie has provided support to Mr Defa prior to August 2023 however this was not discussed at the hearing. Mr Rifaie gave frank evidence about his experience providing regular support to Mr Defa. The Tribunal places significant weight on Mr Rifaie’s evidence.
(j)Mr Ashanafi (Ashu) Teklemaniot – Support Worker has worked with Mr Defa for about one year. He usually works a 10 hour shift each Sunday and travelled with Mr Defa to Ethiopia, staying in the same apartment for most of the 3 months they were away. Mr Teklemaniot was assisted by an interpreter at hearing and gave candid evidence based on his direct experience and observations of Mr Defa. The Tribunal places significant weight on Mr Teklemaniot’s evidence.
(k)Mr Adam Baldock – Independent OT was engaged by the Respondent to conduct an independent functional capacity assessment of Mr Defa. Mr Defa declined to participate in a face-to-face assessment and therefore Mr Baldock’s report was prepared on the papers. Mr Baldock’s report was the only one prepared in accordance with the Tribunals’ guidelines on expert witnesses. He has over 22 years’ experience as an OT and 9 years’ experience in the medico-legal field. Mr Baldock was subjected to accusations of bias, a conflict of interest and potential racism by Mr Defa during the hearing. As will be discussed below, the Tribunal finds such assertions completely baseless. Mr Baldock was observed to give nuanced and dispassionate evidence. He provided useful assistance to the Tribunal on the issue of deconditioning and self-limiting behaviours.
36.Witnesses gave evidence on a range of matters including Mr Defa’s medication regime, mental health, pain, medical conditions, functional capacity, attendance at appointments, ability to undertake tasks of daily living and support needs. While the Tribunal finds that all witnesses were honest when giving their evidence, it became apparent over the course of the hearing that several experts formed opinions and expressed support for Mr Defa’s request for certain NDIS supports based on uncritical acceptance of information selfreported by him. Mr Defa’s credibility issues will be discussed throughout this decision. On occasion some witnesses appeared to suspend their professional judgement by accepting whatever Mr Defa told them without challenge. Limited weight can be placed on their evidence in circumstances where they over-relied on Mr Defa’s self-reporting particularly in circumstances where one would expect other objective or corroborating evidence. For example, Mr Sletcher reported in his functional capacity assessment that Mr Defa scored 95% in a test to determine his level of understanding and communication. Mr Sletcher conceded at hearing that such a score was approaching the level of impairment that would ordinarily be associated with someone who was non-verbal. Dr Engler has known Mr Defa for many years, and in addition to treating his diabetes, has provided advice and oversight in relation to several other medical conditions including referrals to other treating practitioners. Despite this knowledge, Dr Engler seemed prepared to readily accept quite an extreme claim by Mr Defa, even though the claim appeared to depart from his own understanding of Mr Defa’s functional capacity (covered later in the hearing). This is demonstrated in the following exchange:
Counsel: [Mr Defa said in a statement of lived experience] – “I have extreme difficulty standing up for more than a minute”. Is that your experience of Mr Defa to the extent that you know him, that he can’t stand for more than a minute?
Dr Engler: Is that because he’s limited by pain in the back?
Counsel: [Mr Defa said] – “After one – I start to have spasms in my lower back and legs”. Can you comment on that?
Dr Engler: I mean, well I mean if that’s what he says, that’s what I would act on and say that would have to be – that would provide an argument for neurosurgical review. Because that’s – I mean that’s marked. That’s marked impairment of functioning. If you can’t stand up for more than a minute, well – has that become more recent, Lelisa?[27]
[27] T1 of JHB1, p47, [27-39].
37. There were also instances where treating practitioners relied on the accuracy of reports of other treating practitioners, who in turn, had relied on Mr Defa’s self-reporting or, what the Tribunal now considers to be, Mr Defa’s deliberate underperformance during assessments. The issue of treating practitioners relying on the reports of other practitioners was an understandable but complicating feature of this case. It appeared that some witnesses had unwittingly enabled and supported Mr Defa to make unfounded or exaggerated claims for NDIS supports and were patently unaware of the inconsistencies and/or inaccuracies
contained in their reports. For example, Mr Defa engaged neuropsychologist Ms Alana Collins to write a report in support of his request to VCAT to appoint his father as his financial administrator because “he is no longer capable of managing his finances”.[28] Mr Defa told Ms Collins over four sessions on 25 July 2023, 27 July 2023, 1 August 2023, and 3 August 2023 the following:
[28] C12 of JHB1, p291.
•due to difficulties managing his medication “my heart just goes, and I just drop on the concrete or tiles”,[29]
[29] C12 of JHB1, p292. 31 C12 of JHB1, p293, 32 C12 of JHB1, p294.
•that “his recent falls have resulted in reduced blood/oxygen flow to the brain and caused some degree of damage”,31
•he “has severe shoulder pain from a fall eight months ago”,32
•“he had surgery on his prostate three weeks prior to remove a growth that thought to be cancerous”.[30]
[30] C12 of JHB1, p294.
•has “a recent history of unintentional medication overdose secondary to poor memory”,[31]
[31] C12 of JHB1, p295
•“at least two or three times a week he loses consciousness or becomes dizzy as he has forgotten to take medication to regulate his heart function”,[32]
[32] C12 of JHB1, p296.
•that “he is unable to count to ten while scooping out formula to make his son a bottle” and “when counting aloud…he will get to four and then lose his place and need to start from the beginning”,[33]
[33] C12 of JHB1, p297.
•that “he is no longer able to watch television as he cannot keep up with what is being said”,[34]
[34] C12 of JHB1, p297.
•“there have been instances where he has forgotten how to spell his name”.[35]
[35] C12 of JHB1, p298.
38.Mr Defa’s processing speed was assessed to be in the “extremely low” range.[36] As will be discussed below, the Tribunal finds that many of Mr Defa’s assertions, contained in Ms Collins’ report, were either false or grossly exaggerated. However, both Dr Bertino and possibly Dr Engler[37] referred to Ms Collins’ report in reference to Mr Defa’s cognitive capacity and/or support needs. VCAT declined to make the administration order[38] and Mr Defa’s processing speed was observed throughout the hearing to be significantly at odds with the findings contained in Ms Collins’ report.
[36] C12 of JHB1, p304
[37] It is possible Dr Engler was referring to the report by Ms Hannah Miller, see T1G of JHB1.
[38] T3 of JHB1, p213 [25-28] 42 T3 of JHB1, p139 [8-16].
39.The following exchange between Counsel and Dr Bertino in relation to Ms Collin’s report reveals the dynamic that was observed to be at play between some of Mr Defa’s treating practitioners.
Counsel: So at the moment he has 5 hours a day of support from a worker. Is there any reason, from your perspective, why a support worker couldn’t assist him to take his medications?
Dr Bertino: I know that the neuropsychologist did an extensive battery of testing and she recommended nursing as well as a support worker. I’m looking at her letter as to the reasons. I’m assuming that the nurse would be better able to look at those PRN dosages, and I think Mr Defa has told me that his support workers at times have been uncomfortable with the amount of medication (indistinct words).42
40.Some witnesses were asked to express opinions on matters beyond their area of expertise and/or gave evidence about Mr Defa’s support needs without direct knowledge or observation of Mr Defa’s functional capacity doing tasks of daily living at home or in the community. This is not a criticism - the Tribunal is grateful for the time and assistance provided by the many witnesses who appeared before it. For example, while the Tribunal was greatly assisted by Dr Kotschet’s explanation of Mr Defa’s heart condition and treatment, and places significant weight on that evidence, it places significantly less weight on her estimate of what his support needs might be at home and in the community, noting she now only sees him every 3 to 6 months in a hospital setting.
ROLE OF THE TRIBUNAL
41.The Tribunal’s role is to make the correct or preferable decision based on the material before it.[39] In reviewing the decision:
[39] Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [37]-[38], [45]-[46] (Kirby J), [99] (Hayne and Heydon JJ), [143] (Kiefel J).
(i)the Tribunal stands in the shoes of the delegate/internal reviewer and must make the correct or preferable decision based upon the evidence and other material before it;[40] and
[40] Esber v The Commonwealth (1992) 174 CLR 430 at 440; Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250 at [51]; QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.
(ii)the scope of the Tribunal’s jurisdiction is determined by reference to the scope of the internal reviewer’s powers under section 100 of the NDIS Act, which is in turn informed by the scope of power under section 33(2) of the NDIS Act.[41]
[41] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 at [7].
42.During opening remarks in these proceedings, the Tribunal stated:
At this hearing, the Tribunal will take a fresh and impartial look at the decision by the respondent. The Tribunal is independent of the agency. And my role is to consider, with an open mind, all relevant evidence and make the correct or preferable decision according to law. Under section 43(1) of the Administrative Appeals Tribunal Act, the Tribunal has the power to affirm the decision which would have the effect of, essentially, leaving the decision as it is, to vary the decision or make a completely new decision about the supports that should or shouldn’t be included in your plan, including the amount of any supports.[42]
[42] Transcript, Day 1, P-5, [19-28].
43.The relevant provisions under the new Administrative Review Tribunal Act 2024 (Cth) (ART Act) are sections 54 and 105.
44.While the Respondent’s decision is, of course, subject to examination and scrutiny in any administrative review proceeding, applicants must also be aware that their claims and evidence (both oral and written) will be tested too. In NDIS matters, which routinely involve claims for supports of tens, if not hundreds of thousands of dollars per year, it is right and proper that the evidence underlying a participant’s claim, for access or support, will be subject to analysis and questioning during a hearing. In the case of Mr Defa, his request for
24 hours of support worker and nursing assistance per day, represented an almost 5-fold increase to the current level of support worker assistance approved in his SOPS. On the Tribunal’s rudimentary calculations, the supports requested by Mr Defa amount to at least AUD $700,000 of core funding per year (plus an additional $42,000 for capacity building supports).
45.There is rightly no cap on the level of supports that may be requested by a NDIS participant. However, as an essential public benefit, the integrity of NDIS must also be safeguarded by ensuring that participants receive reasonable and necessary supports according to law and supported by cogent evidence. Should applicants file or give evidence during hearings which deliberately overstates their support needs and/or intentionally misleads the Tribunal about a relevant fact in issue, they should expect to face the very real consequences that can flow from their loss of credibility.
PROCEDURAL FAIRNESS AND ACCESSIBILITY ISSUES
46.The Tribunal was cognisant of issues of procedural fairness, adjustments, and accessibility during these proceedings. Whilst Mr Defa finished year 12, attended university and worked in a professional capacity as an IT manager prior to becoming a NDIS participant, there were a range of issues raised prior and during the proceedings which required careful balancing and adjustments to promote a fair process. Mr Defa:
•was not legally represented.
•frequently needs to use the toilet.
•claimed to experience memory problems.
•claimed to experience fatigue and pain.
•takes a high dosage of Palexia medication each day (opioid based pain relief) and reported to use extra Palexia to help him concentrate.
•claimed to require additional time to get ready in the morning.
47.Mr Defa indicated that a hearing start-time of 11am each day would accommodate his morning routine and allow his medication to take effect prior to the hearing. He was invited to alert the Tribunal whenever he needed a break and proceedings were paused on each occasion.
48.Mr Defa was understandably frustrated by the Respondent’s relatively late request to issue summons to a range of treating practitioners and health services. This resulted in a significant volume of material being produced only days before the hearing commenced. Notwithstanding that the summons could have been requested by the Respondent far earlier in the proceedings, the Tribunal is satisfied that relevant summons material was put to Mr Defa throughout the proceedings and that many of the thousands of pages of documents were either irrelevant and/or uncontested.[43]
[43] See Transcript, Day 1, p10 and Transcript, Day 3, p211.
49.On at least two occasions, Mr Defa suggested the Respondent interfered with his ability to call other treating practitioners such as Professor Sree Appu, a urological surgeon.[44] At the first telephone directions hearing, the Tribunal alerted Mr Defa to the option of calling expert (and lay) witnesses to give oral evidence at the hearing. It was explained to Mr Defa and his advocate that he would need to liaise directly with any witness to secure their attendance. While the Respondent elected not to summons Professor Appu to give oral evidence because, as the Tribunal understands it, the Respondent does not take issue with his letter dated 31 May 2023 filed in the JHB1 nor the material produced under summons, this does not constitute interference. Further, it became apparent that Mr Defa had not seen Professor Appu since July 2023. The Tribunal explained to Mr Defa that in the absence of a recent consult, it might be the case only limited weight could be placed on his evidence.[45] Noting that Mr Defa was not legally represented, out of an abundance of caution the Tribunal said:
[44] See Transcript, Day 2, p87-90 and Transcript, Day 3, p110-111.
[45] Transcript, Day 3, p110-111.
But, as I say, that offer stands, if there is a particular specialist – doctor – someone that has not been summoned that you think is particularly important if you could please bring that to my attention by the end of today, you are then welcome to contact that doctor and ask whether they will provide something in writing or whether they’re willing to attend in person, but beyond that, you’ve had a reasonable opportunity to raise that issue until now.[46]
[46] Transcript, Day 2, p90 [5-11].
50.The length of the hearing was unusually long. Mr Defa reported feeling unwell or fatigued on several occasions but indicated he wanted to proceed with the hearing. He was observed to actively participate on each day of the hearing and was prepared to keep going beyond
5:30pm on the fifth day of the hearing, however the Tribunal decided to conclude the day.[47] The Tribunal sat beyond 5pm on the sixth and seventh days.
[47] Transcript, Day 5, p374 and Transcript, Day 7, p597.
51.Mr Defa’s evidence and submissions were not confined to discreet sections of the hearing. He gave most of his evidence during three blocks of time, however other evidence was interspersed throughout the hearing. Mr Defa was advised at the start of the hearing that he was under affirmation for the duration of the hearing.[48] He was also reminded prior to his evidence on the last day that he was still under affirmation.[49] The Tribunal is satisfied that Mr Defa understood that he was required to answer questions truthfully and to the best of his knowledge throughout the hearing.
[48] Transcript, Day 1, p14.
[49] Transcript, Day 8, p605.
52.Mr Defa repeatedly objected to counsel’s questions over the 8-day hearing, often contending that the proposition being put to a witness was factually inaccurate. Counsel was asked to rephrase questions on a couple of occasions; however counsel was observed to put propositions fairly and without any deliberate misrepresentation of another witness’ prior evidence. It was unavoidable that there was some conjecture at times about the nuance of what a witness may have said several days prior, with the transcript only produced for the Tribunal’s benefit at the conclusion of the hearing. The Tribunal repeatedly explained to Mr Defa that it would review the proceedings carefully when writing the decision and consider the way a question was asked when assessing the evidence. As Mr Defa was not legally represented, the Tribunal gave Mr Defa some latitude to frame questions to witnesses in ways which were not necessarily in keeping with its own recollection of the evidence.[50]
[50] For example, see Transcript, Day 2, p60-61; Transcript, Day 3, p172-173.
53.Mr Defa also alleged that counsel harassed or intimidated witnesses. Ms Blok explained to Mr Defa that her job was to test the evidence. The Tribunal is satisfied counsel conducted herself in an entirely professional and courteous manner with all witnesses and was appropriately flexible in the conduct of the proceedings. She also assisted the Tribunal in its consideration of matters of procedural fairness that were of benefit to Mr Defa.[51]
[51] For example, see Transcript, Day 4, p249, Transcript, Day 6, p445-446, Transcript, Day 8, p613.
54.Mr Defa was critical of the Tribunal on several occasions during the hearing. On the third day of the hearing, he rightly corrected the Tribunal for assuming, in discussion with psychologist Dr Bertino, that a support worker had not travelled with him to Ethiopia between November 2023 and February 2024.[52] There was some foundation for the Tribunal assuming that a support worker had not travelled with him, because Mr Defa was invited to put on evidence about the supports in place in Ethiopia at the second directions hearing. Shortly before the final hearing, Mr Defa filed a copy of his passport, a document about nursing care in Ethiopia and a reference to the nurse in Ethiopia in his statement[53], however he did not mention anything about a support worker. The following exchange took place:
[52] Transcript, Day 3, p134-135 [22-16].
[53] B2 of JHB2, p33.
Mr Defa: I’m trying to do my best, and I feel like this hearing is [not] impartial. Because while the respondent has four lawyers attending, and I’m attending on my own dealing with all this, and I’ve forgotten to take my medication yesterday, and today…
Tribunal: Mr Defa, I apologise for making that misrepresentation to Dr Bertino. It was on the basis, as I say…because I had made that specific request for details about the supports you had in place in Ethiopia, and there was nothing in the two most recent statements that you filed just a few weeks ago, I assumed that, on that basis, your support worker had not been in attendance. I’m happy to acknowledge that that was the wrong conclusion to draw for the purpose of putting that question to Dr Bertino, and I’ll disregard any response on the basis of that, okay.
Mr Defa: Thank you.
Tribunal: So we will deal with any other concerns you have after Dr Bertino gives her evidence…[54]
[54] Transcript, Day 3, p135-136 [33-7].
55.On the fourth day of the hearing, counsel asked Mr Defa a series of questions about his headphones which resulted in him touching his head. This was contrary to evidence contained in his statement of lived experience indicating he could not touch his head.[55] Mr Defa was displeased about this and appealed to the Tribunal seemingly on the basis that counsel was being unfair because he had medical evidence to support his claim. The following exchange took place:
[55] C21 of JHB1, p372.
Tribunal: Mr Defa, a huge part of my task is to assess, based on the evidence, your functional capacity.
Mr Defa: Yes.
Tribunal:
And I can assure you that if Ms Blok had not asked you about the headphones, it was on my post-it note to ask because I assumed that you could reach your head, based on the fact that you’ve worn those headphones every single day of the hearing.
Mr Defa:
Yes.
Tribunal:
And can I say, Mr Defa, having observed that…you very clearly touched your head. That evidence trumps any medical expert report about whether you can touch your head because I’ve seen it with my own eyes. Okay. So I just need you to understand that.
Mr Defa:
I clearly do understand that and I’m kind of – I have to say this in light of your comments and I never said I could not reach my head..…
Tribunal:
Mr Defa, just so I’m clear, are you denying that – would you like me to put up your statement of lived experience so you can see it?
Mr Defa:
Look…
Tribunal: ...So I’m happy to bring up the evidence you have filed. Mr Defa:
Yes. Lifting up my arms, so just my headset… [but] pressure on my head to scrub my head, it’s not the same and to me it’s starting to appear whether this tribunal is neutral in this hearing. I’ve seen from the very start I haven’t – I can’t recall a moment where you’re trying to say the question is valid or appropriate – not appropriate but half of the time you’re asking the question on behalf of the respondent, who already have (indistinct) and I’m really – well, I just not sure of the position of the tribunal, whether – for you to listen to the evidence and make a determination, or you’re acting as a lawyer for the respondent to make a case.
Tribunal:
Mr Defa and Ms Blok, I’ll take that as a question about the impartiality of the tribunal and it may mean that we – well, I’ll perhaps hear from Ms Blok about how we deal with this, Mr Defa, because if you’re suggesting that the tribunal has acted in a biased or impartial manner, then that’s a serious matter and it may be that we need to adjourn this hearing and have an interlocutory about that issue... This is your hearing. What I just want to briefly clarify is that, as I explained – I can’t remember if it was yesterday or the day before, Ms Blok is here to assist the tribunal and I recall that you were unhappy with some of the questions Ms Blok was asking and she’s asking hard questions today.
But as I explained that day, I’m the decision-maker so if Ms Blok wasn’t asking those questions, I would be asking those questions and it is clear, Mr Defa, that there [are] some concerns with the evidence that’s coming before this tribunal. I made that clear yesterday. There are concerns. I’ve come into this hearing with an open mind, at the TDH, I alerted you to some confusion I was having with understanding why there wasn’t a statement from the nurse and endeavoured to give you the best opportunity to put on and clarify your position on some of those issues. Having said that, I’m not here to defend myself. I’m going to ask Ms Blok… how best I deal with this but it may be that we need to adjourn the hearing in these circumstances. Ms Blok, what do you say?
Counsel: I say it’s a matter for Mr Defa to state his position and what he seeks to do. If he wants to make an application, it’s a matter for him. Otherwise, he has got two options. One is to make an application that there is some concern from his perspective about the impartiality of the tribunal. In that case, he makes that application and the tribunal deals with it. Alternatively, he proceeds as we are going now. But I wanted to make it clear to Mr Defa that my job is to test the evidence and to put any inconsistencies to you, Mr Defa, so you have an opportunity to comment on it. And so I’ve read a lot of the material, if not all of the material before the tribunal and many of the pages of summons, and so where there’s concerns from my perspective, from the agency’s perspective, I have a duty to put those to you to enable you to offer an explanation and that’s what I’m doing. And in all the tribunal hearings I have participated in, the tribunal Member, at times, also asks questions. This is a usual procedure.[56]
[56] Transcript, Day 4, p239-241 [33-12]
56.Mr Defa indicated he was comfortable to proceed with the hearing. Mr Defa was put on notice throughout the hearing with questions or concerns about the evidence, including his reliability and credibility, and was given multiple opportunities to address those matters.[57]
[57] See for example, Transcript, Day 3, p138, p 199; Transcript Day 8.
57.On the seventh day of the hearing, Mr Defa made a series of allegations against Mr Baldock including that he was biased and had a conflict of interest. The Tribunal understands that the allegations were on the basis that Mr Baldock has provided medico-legal reports to insurance companies in the past (as stated in his CV) and that he was engaged by the Respondent to conduct an independent assessment.[58] Mr Defa concluded by saying:
[58] Transcript, Day 7, p569 [42-44].
Member, I would like to submit a motion to dismiss [Mr Baldock’s] evidence. He is off-the-shelf product of [the] NDIS. He is not independent… the question was prepared for him by the respondent, and I’m not sure if the answer is also prepared for him by the respondent. It is quite clear with the evidence he just gave he cannot be impartial, and his evidence should be dismissed…[59]
[59] Transcript, Day 7, p566 [39-46].
58.Mr Defa also suggested Mr Baldock may have changed his evidence at the hearing upon seeing Mr Defa is a black man.[60] The Tribunal notes that many of the briefing materials contained references to Mr Defa being of Ethiopian heritage and it is assumed Mr Baldock was aware of that prior to giving evidence at the hearing.
[60] Transcript, Day 7, p569 [42-44].
59.Counsel made submissions that Mr Baldock is independent and there was no basis to suggest otherwise, noting he had prepared his report in accordance with the AAT Guideline on Persons giving expert and opinion evidence. Experts giving evidence have an overriding duty to provide impartial assistance to the Tribunal and are not an advocate for a party to a proceeding.[61] She also asked Mr Baldock whether he has made recommendations contrary to the NDIA’s position. Mr Baldock provided a recent, de-identified example of an assessment concerning a young girl with an intellectual disability and several other comorbidities. In that case, he supported the provision of NDIS funding in circumstances where the Respondent had declined to fund supports.[62]
[61]
[62] Transcript, Day 7, p565.
60.Mr Baldock later said,
My opinion is not whether I agree or disagree with the NDIA. It’s my role to present the evidence that I observe during an assessment in a manner that allows the NDIA to make informed decisions as to… whether it complies with…various parts of the Act and so forth. It’s not my role to sway the NDIA either way or anyone that I’m doing a medico-legal for. It’s really just the provision of information so that the informed decision can be made.[63]
[63] Transcript, Day 7, p581.
61.The Tribunal declined to dismiss Mr Baldock’s evidence and is not satisfied there is any ground to support a finding of bias or conflict of interest. As will be discussed below, the Tribunal relies on Mr Baldock’s evidence alone in relation to allowing a transition phase for Mr Defa in terms of the hours of support worker assistance. Without this evidence, the Tribunal would have had great difficulty justifying a transition period for Mr Defa.
62.At the end of the seventh day of the hearing, after all witnesses had given evidence, the Tribunal discussed the process for closing submissions. The Tribunal asked counsel to provide a summary document of the evidence so that Mr Defa had an opportunity to consider it prior to closing oral submissions the following day. On this issue, the Tribunal remarked:
And I think, in fairness, Mr Defa, we have both been given at least a heads up on what that document is likely to contain, based on what Ms Blok has put to Mr Baldock today. That gives some indication of the respondent’s take on the evidence. One thing that I did want to check is whether the respondent could clarify whether there
has been any change in its position, so that Mr Defa has an opportunity to consider any change, any offer that may be forthcoming as a result of the evidence. And just so you know, Mr Defa, because you are unrepresented.
…
At the start of the hearing, as I reminded you… the powers of the tribunal are such that I have the power to increase, decrease, add, take away supports. And so I don’t know what my decision is going to be… I’m going to have to go away and look at the evidence very carefully. But I just wanted you to understand that there’s no issue if it is that the parties arrive at a position [that is mutually acceptable].[64]
[64] Transcript, Day 7, p587-588
63.Mr Defa indicated he would not refuse a reasonable offer.[65]
[65] Transcript, Day 7, p588 [19-20].
64.The following day, counsel indicated on behalf of the Respondent that they could offer an additional 2 hours of assistance with daily life, totalling 7 hours per day of support worker assistance. Counsel explained, “That is the highest offer the agency can make within the meaning of the legislation and having regard to the evidence that has been provided to the tribunal, and has been tested by both me and by you”.[66] Mr Defa responded, “I guess we will have to go through the process as it stands now. I do not believe your offer has taken evidence provided into consideration. I rely on the judgement of the tribunal to make the final decision”.[67] He added:
[66] Transcript, Day 8, p601 [29-34].
[67] Transcript, Day 8, p601 [36-38].
I didn’t go through all this process which it was pretty much suicidal ideology was on the table before this case, and during this case… And the support workers being present does avert me from just thinking about this ideology. Not just the ideology, there’s possibilities that I might act on it as well, which is well recorded by my psychologist and psychiatrist.[68]
[68] Transcript, Day 8, p601 [36-47].
65.Counsel made the following submission in response:
There’s a difference of opinion, and you’re entitled to your opinion and so is the agency, and the tribunal will need to make a decision on that point. In relation to the possibility of suicidal ideation and possibly acting on it, in my submission, it’s not appropriate to make any threats to the agency or the tribunal in relation to this, and there is no medical evidence – current medical evidence of these matters.[69] 66. The Tribunal will detail its response to this issue in the final section of this decision.
LEGISLATIVE FRAMEWORK
[69] Transcript, Day 8, p602 [27-32].
67.The NDIS was established under the NDIS Act. Its objectives are set out in section 3 and its general principles guiding actions taken under the NDIS Act are set out in section 4. Section 3(1)(c) and (g) relevantly states the objectives of the Act are to support the independence and social and economic participation of people with disability and to promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community.
68.A participant’s plan must include a statement of participant supports, approved in accordance with section 33 of the NDIS Act, and any rules made under the NDIS Act.
69.The National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth) came into force on 3 October 2024, changing a number of provisions including section 34 regarding reasonable and necessary supports. The Act also introduced a new section 10 (definition of NDIS support) and amended section 34(1)(f) which now requires the decision maker to be satisfied that “the support is an NDIS support for the participant”. These changes apply to the Applicant’s SOPS and must be considered by the
Tribunal.[70]
[70] Subitem 129(2) of Schedule 1 of the Amending Act provides that if a statement of participant supports is approved or varied on or after 3 October 2024, the amendments apply irrespective of whether the Applicant’s plan came into effect before, or on or after commencement.
70.Subsection 34(1) of the NDIS Act now relevantly states:
(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:
(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(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 an NDIS support for the participant.
Note: For the purposes of paragraph (aa):
(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b) a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
(2)The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).
71.The Tribunal must be positively satisfied about each of the matters set out in section 34(1) of the Act.[71] The Applicant carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[72]
[71] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [202].
[72] For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).
72.The term “reasonable and necessary support” is not defined in the NDIS Act. In McGarrigle v National Disability Insurance Agency [2017] FCA 308 (‘McGarrigle’) Mortimer J observed, at [91], with respect to the term (as defined in the Act at that time):
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is
to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.
73.The Full Court in WRMF considered the meaning of reasonable and necessary supports and stated as follows:
there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.[73]
[73] WRMF at [149-151].
74.Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters. Relevant rules in the Applicant’s case include the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (‘the Supports Rules’), which form part of the legislative framework.
75.Part 3 of the Supports Rules set out criteria the Tribunal must consider when determining whether the supports requested are reasonable and necessary.
76.Relevantly in this case, Rule 3.1 regarding value for money (section 34(1)(c)) states:
3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
…
(f) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).[74]
[74] National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
77.Rules 3.2 and 3.3 regarding effective and beneficial and current good practice (section 34(1)(d)) provide:
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 and 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.
78.Further, Rule 5.1 provides:
A support will not be provided or funded under the NDIS if:
(a) It is likely to cause harm to the participant or pose a risk to others; or (b) It is not related to the participant’s disability;
…
79.The National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth) (Transitional Supports Rules) and the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth) (Transitional Miscellaneous Rules) also introduce several changes. Section 7(3) of the Transitional Miscellaneous Rules requires the Tribunal to be satisfied that 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:
(a)As part of a universal service obligation; or
(b)In accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
80.Mr Defa’s request for support worker assistance is not excluded by the Transitional Rules. Rules 7.4 (health) and 7.6 (mental health) of the Supports Rules are relevant to his request for nursing assistance. These rules provide that the NDIS will be responsible for supports relating to a person’s functional impairments including where supports are supervised by health professionals.[75]
[75] See Respondent’s contention on this issue at F8 at [21].
81.The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[76] A relevant guideline is Operational Guideline - Reasonable and Necessary Supports (22 September 2024). This guideline states that the NDIS principles set out in law indicate that reasonable and necessary supports should:
- support you to pursue your goals and maximise your independence
- support you to live independently and to be included in the community as a fully participating citizen
- develop and support your capacity to do things that help you participate in the community and in employment.[77]
[76] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
[77] Operational Guideline - Reasonable and Necessary Supports (22 September 2024), p17
82.The Operational Guideline – Including specific types of supports in plans (10 June 2022) regarding personal care require the Respondent to consider the degree to which personal care supports:
- Maximise the independence and functional skills of the participant;
- Are appropriate to the participant’s age and circumstances; and
- Whether alternative arrangements or supports could meet a participant’s need in a less intrusive manner. For example, aids and equipment may enable a participant to complete tasks for themselves or the provision of training may increase the participant’s independence in the tasks.[78]
[78] See A1 of JHB2, p8. Available at
83.The Psychosocial Disability Recovery-Oriented Framework, 2021[79] outlines a focused approach to recovery for participants with psychosocial disability which uses the definition of recovery adopted by the World Health Organsation:
For many people recovery is about regaining control of their identity and life, having hope for their life, and living a life that has meaning for them whether that be through work, relationships, spirituality, community engagement or some or all of these”.[80]
[79]
[80] World Health Organisation. "Guidance on community mental health services: promoting person-centred and rights-based approaches." In guidance on community mental health services: promoting person-centred and rights-based approaches, 2021.
APPLICANT’S CASE
84.The Tribunal accepts that Mr Defa was diagnosed at age 5 with Type 1 diabetes and lives with several other medical or mental health conditions that impact his life. These conditions and associated medical interventions have undoubtedly caused him stress and anxiety over the years and have affected his health. Despite this, the Tribunal is satisfied that his Type 1 Diabetes and Coronary Artery Disease (CAD) are both particularly well managed at this time, with endocrinologist Dr Engler concluding that Mr Defa could be at lower risk of hypoglycaemia compared with his other patients.[81] The discussion and findings that follow do not seek to diminish that Mr Defa has experienced challenges in his life and must continue to manage a range of medical conditions going forward.
[81] Transcript, Day 1, p46 [0-5].
85.The Tribunal requires applicants who come before it to be honest. This includes ensuring all information filed with the Tribunal is accurate. An applicant’s circumstances may change from time to time, however representations about a fact in issue at a point in time must be true to the best of the applicant’s knowledge. The Tribunal does not expect perfection, particularly from unrepresented applicants – on occasion applicants (and other lay witnesses) may inadvertently get something wrong by miscalculation, inattention, misunderstanding or some other human error. In those circumstances, errors can be easily resolved and the safeguarding of one’s credibility swiftly protected by providing an updated statement which identifies the inaccuracy and corrects the record prior to hearing.
86.Prior to giving oral evidence, an applicant takes either an oath or affirmation promising to answer questions truthfully, to the best of their knowledge. The hearing process provides a further opportunity for an applicant to proactively correct errors, provide updated information (for example, about changes to functional capacity, employment status, or relationship status) and/or to make appropriate concessions if the respondent or the Tribunal draws their attention to a possible inaccuracy or inconsistency. Of course, the significance of an asserted fact later found to be untrue or the deliberate withholding of relevant information to a fact in issue by an applicant may weigh heavily on their credibility before the Tribunal. Such conduct may also constitute an offence, pursuant to section 118 of the ART Act regarding false and misleading evidence.
87.For reasons which will become apparent in the findings that follow, the Tribunal found Mr Defa to be someone who was repeatedly willing to fabricate and exaggerate in his written and oral evidence. He gave evidence (and information to others) that was at times so inconsistent, it was often difficult for the Tribunal to know or determine what was true. Further, he was observed to withhold critical information. This was self-serving and designed to bolster his request for high levels of nursing support and support worker assistance totalling 24 hours per day. During the hearing, Mr Defa maintained his position for the most part, regularly refusing to acknowledge inaccuracies or inconsistencies within his evidence or the information provided to other witnesses, third parties (such as hospitals) and the Respondent.[82] He was also observed to provide explanations which were often unconvincing. Mr Defa’s propensity to mislead or misrepresent the true nature of his medical conditions and impairments permeated much of the expert evidence.
[82] For example, see Transcript, Day 8, p638 – 641 and p646 – 650.
88.While the Tribunal’s findings are made under sub-headings throughout the body of the decision, the findings are based on consideration of all the evidence. For reasons of brevity and clarity, not every piece of evidence is referenced immediately prior to each finding. It is inevitable that some important pieces of evidence appear in later sections of the decision, often in relation to another issue and/or in support of another finding.
89.In his application for review to this Tribunal on 5 July 2023, Mr Defa wrote:
I have a very complex health issues including but not limited to Coronary artery disease (CAD), Type I Diabetes mellitus (DM), Lumbar spinal disc lesion with
chronic low back pain, Bipolar disorders / depression and anxiety, Post-Traumatic Stress, Disorder (PTSD), Obstructive sleep apnea (OSA), Hypertension, Erectile dysfunction, very weak bladder, prostate issue with that is potentially cancerous, emergency surgery was cancelled due the NDIS making a sudden change to my fund management without any planning. I have known to accidentally overdose on prescribed medication on many occasions due to memory loss and my support workers had to be trained to administer the long list of my medication, controlled and uncontrolled once to ensure I'm no longer subjected to unnecessary risks. On the 17th of May I got a call from the NDIS saying a new measure is put in place by a special council (sic) and my funding is now Agency managed despite my objection siting (sic) the risk posed to me. The new change means, I have to find a new provider and if I did I insisted there should be a period of transition so the new provider can be trained on how to provide support tailed (sic) to my complex need, but the NDIS has no regards for my safety or wellbeing and they went ahead and changed my plan any way which lead to the cancellation of a life saving surgery on my prostate. Since then, while I await the outcome of my appeal, I contacted my local MP to see if they can help but they keep lying to the Member of Parliament. The NDIS went as far as deleting my medical records from my portal leaving only my bipolar disorder as my only condition so the decision not to be reversed under high risk category. They only reinstated my medical reports after my appeal decision was made and no one knew who made the decision in the 1st place and the system is designed to capture which individual logged in to a participant portal and make changes. Since the 17th of May 2023 is my life is at a great risk, since then I had many medication overdoses, I had forgotten to take my cardiac medication and my heart has came to a complete stop where I had fallen head down and hurt myself, my diabetes are out of control and my mental health is at a breaking point. I need an immediate intervention as I don't have much time and very confused at current time.[83]
[83] AAT Application for Review of Decision, T1 of JHB1, p5.
Evidence dated 11 September 2023
90.On the 11 September 2023, Mr Defa prepared a document stating he had no informal support and relied on support workers to provide the following day-to-day assistance:[84]
[84] C10 of JHB1.
•showering/bathing
•toileting
•dressing
•grooming
•meal plan
•budgeting
•administering over the counter pain killer
•help with to do lists
•help with emotional regulation
•help maintain motor control
•help with monitoring of blood glucose and blood pressure and pulse
•help with setting goals and aspirations
•emotional behaviour support
•shopping
•help with building confidence and esteem
•maintaining my safety in home and in community
•attend my bedside during my sleep due to my ongoing episode of nightmare and due to loss of motor control which often results in heavy fall
•helping me with my communication and congestive (sic) memory loss
•general household tasks
•socialising
•help with making decisions, including financial
•going for short walk, going for a short drive when I feel I need to leave home
•keeping active as much as possible
•personal and domestic assistance and community access.
•Attending Dr’s appointments at least 4 to 5 times per week
•Community Access.[85]
[85] C10 of JHB1, p282.
91.Further, Mr Defa wrote:
(Medication management by registered Nurse) administered by registered nurses and monitoring of body reactions to certain medication after medication being
administered due to some adverse effect from some of the 40 plus itemized list of medication. In total I go through about an average of 80 plus pills per day, most of them on an empty stomach.[86]
[86] C10 of JHB1, p282.
92.In the same document, Mr Defa also said:
I have lost control of my medication; I take on average between 80 and 100 pills with 40 plus different medication a day. Accidental overdose on prescription medication became a common thing or forgetting to take my cardiac medication, insulin or psychotic medication…I’m not sure how I’m still alive…[87]
[87] C10 of JHB1, p287.
Evidence dated 25 October 2023
93.On the 25 October 2023, Mr Defa prepared a response to questions from the Respondent about a range of matters including the use of his assistive technology budget to buy various items including an iPad, Apple Airpods and Wahl hair clippers, his apparent difficulty engaging NDIS registered providers, the use of core and capacity building funds to pay for nursing support and the administering of his medications.[88] He was assisted by Ms Siarot from ADEC to prepare the statement.
[88] C14 of JHB1, p339-344. 93 C14 of JHB1, p341-342.
94.In relation to taking his medication, the statement indicates Mr Defa’s medication is administered between 7am – 10am, 12pm – 2:30pm and 6pm – 8:30pm and can take up to 10 hours per day on a bad day.93 Further, the statement claimed his medications are “locked away” and “prescribed medication is only being administered by a Registered Nurse as the dosage varies for each medication” depending on how Mr Defa is functioning each day.[89]
His vitals need to be monitored such as heart rate, pulse rate, blood pressure, glucose level etc before providing another medication. He usually has about 30 minute interval and the tablets are administered in groups. For example, he may have 5 tablets administered in one go and another 5 tablets after 30 minutes in between.[90]
[89] C14 of JHB1, p342.
[90] C14 of JHB1, p341.
95.The statement continues:
[Mr Defa] advised that support workers are not medical professional. Taking into consideration the complexity of [Mr Defa’s] condition it is beyond their scope to
monitor his post medication intake. Apart from this it is out of scope for the support workers, [Mr Defa’s] multiple complex and mental health issues there is a high risk involve and a medical professional is the best person to monitor and understand the early signs of health emergencies.[91]
[91] C14 of JHB1, p341.
Evidence dated 30 May 2024
96.On the 30 May 2024, Mr Defa completed a statement of lived experience.[92] He had returned from a 3-month trip to Ethiopia in late February 2024. In relation to his morning routine, he said:
•“To get out of bed, I must wait for my support workers to come and transfer me out
of bed”.[93]
•“Due to excessive sweating during the night, I must take a shower in the morning and before bed at night with the help of my Support workers. Due to the bilateral shoulder burst (sic), I can’t reach my head or backside even though I’m in a seated position”.[94]
•“My support workers prompt me to take medication but they don’t administer it”.[95]
[92] C21 of JHB1
[93] C21 of JHB, p372.
[94] C21 of JHB, p372.
[95] C21 of JHB1, p372.
97.Mr Defa described an average week involving four to five medical appointments, with each visit taking 2 to 3 hours including travel time. He added: “I’m unable to attend the appointment on my own”.[96]
[96] C21 of JHB1, p372.
98.He explained that he usually avoids public places “where there are a lot of people, in a busy environment I tend to get very nervous with excessive sweating” and on the weekends I try and go for a drive with my Support Workers, while the experience is sometimes enjoyable, I find it very daunting during pick (sic) hour traffic”.[97] After consulting with his psychologist
Mr Defa claimed, “I was advised not to drive for the safety of the community in general as
well as my own safety. I don’t feel safe (using) public transport, but I do use taxi or Uber to get to my Dr’s appointments, when I don’t have Support Workers with me”.[98]
[97] C21 of JHB1, p373.
[98] C21 of JHB1, p373.
99.He described relying on support workers to prepare meals stating, “I have extreme difficulties standing up for more than a minute. After one minute, I start to have spasms in my lower back and legs”.[99] He also explained that he doesn’t eat breakfast or lunch “as the medication regime that I’m on severely affects my appetite and most day, I struggle with keeping the medication in as I vomit often”.[100]
[99] C21 of JHB1, p374.
[100] C21 of JHB1, p373.
100.Mr Defa said he has an appointment with his psychologist every second Wednesday from 12 – 1pm. “In the last 12 months, I wasn’t able attend physiotherapy as my mental health declined severely and the many strokes, I have suffered had limited all my abilities in all aspects of my life.”[101]
[101] C21 of JHB1, p374.
101.Mr Defa indicated he sleeps for about 3 hours most nights and that he will also try to nap in the afternoon.[102] He reported that he experiences physical pain when he sleeps and must frequently go to the toilet due to his weak bladder and prostate issue.[103]
[102] C21 of JHB1, p373.
[103] C21 of JHB1, p373.
102.A Statement of lived experience at Tab C26 of the JHB1 was struck out by the Tribunal with the consent of both parties.
Evidence dated 19 August 2024
103. Mr Defa filed a final statement dated 19 August 2024 following the second directions hearing by video on 8 August 2024. In this document, Mr Defa wrote:
Generally, I administer my own medication, with my support workers reminding me when they are around. However, when I don’t receive reminders, I often forget to take my medications. I have no memory of taking them unless I start feeling unwell. To minimize the number of times I need to take my medication and to avoid forgetting, I sometimes take medications that need to be administered four times a day all at once.
…
Over time, I’ve built up a significant tolerance to my psychiatric medications, which has led me to adjust the dosage and frequency on my own. It’s been a long time since my medications was reviewed by a psychiatrist. Since losing access to my psychiatrist, I’ve been experimenting with my medications, altering how much and how often I take them.
…
I experience excruciating pain daily, which forces me to take more medication than prescribed. There have been occasions where I’ve overdosed on both my pain and psychiatric medications, resulting in me passing out on the couch until the effects wear off. I’ve stopped seeking medical attention in these instances as I’ve become increasingly hopeless. My support worker typically assumed that I take my medications as prescribed, but this is not always the case.[104]
[104] B2 of JHB2, p32.
104.Mr Defa also explained:
Due to the intensity of my symptoms, once I established support with my current provider, I was compelled to request additional support hours, including overnight care and an enrolled nurse to administer my medication between 21/08/2023 – 26/11/2023.[105]
[105] B2 of JHB2, p31.
105.At the hearing, Mr Defa told the Tribunal he used ChatGPT to help prepare the document, improving the grammar and making it more readable.[106]
[106] Transcript, Day 1, p15.
Statement of Facts, Issues and Contentions, dated 20 August 2024
106.In his statement of facts, issues and contentions, Mr Defa reiterated that he lives alone and relies on support workers.[107]
[107] B3 of JHB2, p35.
107.In relation to medication, the statement said “medication needs to be administered and monitored by a registered nurse. Support workers are not qualified to administer or manage his medication regime. In the past there has been accident when the patient was overdosed accidentally while being supervised”.[108]
[108] B3 of JHB2, p36.
108.It was claimed that two weekly schedules contained at C24 and C25 of the JHB1 “relate to the support received when [Mr Defa] had the higher funding in his plan before the Agency cut his funding”.[109] Mr Defa told the Tribunal Ms Siarot from ADEC assisted him to prepare this document. The Registered Nurse’s schedule totalled 7 hours per day, indicating a nurse attended 7 – 10am, 1 – 2:30pm and 6 – 8:30pm each day. The Support Workers’ schedule suggested one support worker was on duty from 7am to 5pm and a second support worker on duty from 5pm to midnight (totalling 17 hours).
[109] B3 of JHB2, p36.
109.The Tribunal observed a high volume of email correspondence from Mr Defa to the Tribunal and Respondent throughout the proceedings which was clear, well-written and appropriately courteous.
110.Key Finding #1 The Tribunal is satisfied that Mr Defa can prepare written correspondence, with or without the assistance of ChatGPT or another person.
Key omissions
111. As mentioned above, applicants must be frank and forthcoming about their personal circumstances when seeking support from the NDIS. Informal support provided from a partner, friend or family member is a relevant consideration under section 34(1)(e) of the Act when determining what is reasonable and necessary for the NDIS to provide.
Mr Defa’s wife
112.Mr Defa did not make a single mention of his wife (or child) in any of the evidence he filed with the Tribunal. His wife did not provide a statement or give evidence at the hearing.
113.Ms Collins’ report was the only document to reference Mr Defa’s wife in the joint hearing bundle, and that document indicted Mr Defa “was no longer in a relationship with her”.[110]
[110] C12 of JHB1, p297.
114.At the hearing, Mr Defa told the Tribunal his wife arrived in Australia during COVID-19, towards the end of 2020.[111] Summoned material revealed that Dr Wang wrote a letter on
30 March 2020 to the Immigration Department of Australia providing support for her to come to Australia as a carer for Mr Defa.[112]
[111] Transcript, Day 3, p113 [27-33].
[112] Transcript, Day 2, p64 [18-25]. 118 Transcript, Day 2, p103, [29-33] 119 Transcript, Day 2, p104 [9-12].
115.During the hearing, material obtained under summons also revealed that Mr Defa’s wife is currently pregnant with a second child. Mr Defa indicated to the Tribunal that he may not be the father of the second child.
What I’m trying to say is it’s very difficult to have a conversation about this. I cannot get an erection and that’s why I’m going to Alfred Hospital for treatment. What I say defies science, to say it’s my kid is something – I feel uncomfortable just – it’s not (indistinct). Call me old fashioned. But me being the father is kind of not possible.118
116.Regarding his relationship with his wife, he said:
I don’t wish her ill in any way. She’s the mother of my child. I wish her well in every way. And all the differences we have, I don’t blame her. It’s mostly to do with my health issues… We don’t have any physical interaction.119
117.Mr Defa claimed he did not know where his wife last worked[113] or where she puts their son during the day. “I believe she commenced work and then she got – when she got pregnant, she started to get really sick. She stopped that again”.[114] Dr Bertino told the Tribunal she understood his wife worked at Mr Defa’s GP clinic for a period.[115] Following that evidence, Mr Defa clarified that the clinic job was his wife’s first job.[116] Mr Defa did not mention in his statement filed 2 weeks before the hearing that he travelled with his wife to Ethiopia.[117]
[113] Transcript, Day 2, p106 [29-31].
[114] Transcript, Day 2, p105 [43-46].
[115] Transcript, Day 3, p149 [44-46].
[116] Transcript, Day 3, p150 [0-25].
[117] B2 of JHB2.
118.Dr Bertino could not explain why Mr Defa would have told Ms Collins in September 2023 that he was no longer in a romantic relationship with his wife beyond, “I know there was a period of time where they were really rocky, and he had thought about leaving the relationship”.[118]
[118] Transcript, Day 3, p123 [0-15]
119.Despite writing in a support letter that Mr Defa “deserves as much help as possible”,[119] Dr Engler appeared surprised when counsel informed him at the hearing that Mr Defa currently receives funding for 5 hours of support worker assistance per day and was requesting an additional 12 hours per day.
[119] C2 of JHB1, p249.
Counsel:Now do you have anything to say about that, whether that is necessary that he has… somebody to be with him for 17 hours over the course of a day?
Dr Engler: You mean 17 hours per week?
Counsel: No, per day.
Dr Engler: 17 hours per day.
…
I would like to know what the current support worker does during the 5 hours that he or she is there, and what Mr Defa considered needed to be added in the remaining 12 hours.
…
I mean his wife is home. So I don’t know to what extent she is home during the day. But she must be home sometime. So can she not be of assistance?[120]
[120] Transcript, Day 1, p46, [11-32].
120.As will be discussed below, the Tribunal heard evidence that Mr Defa and his wife live together, and she cooks and cleans.
121.Key Finding #2 The Tribunal is satisfied Mr Defa and his wife have lived together for the duration of these proceedings and that Mr Defa withheld this information when filing his documents with the Tribunal. Mr Defa and his wife co-parent their toddler son, currently aged 20 months and his wife is due to give birth to a second child in January 2025. While it may be the case that the couple no longer share an intimate relationship, the Tribunal is satisfied that a familial relationship continues with the family recently travelling to Ethiopia together for 3 months. There was no evidence of any planned changes to their shared housing arrangements.
122.Key Finding #3 The Tribunal is satisfied Mr Defa receives some informal support including cooking and cleaning from his wife, which is a relevant consideration under section 34(1)(e) of the Act.
Nursing Supports
123.As mentioned above, the Tribunal asked Mr Defa about his nursing support during the second directions hearing by video. Mr Defa confirmed that he was not currently receiving nursing support and claimed he could not remember whether he had ever had nursing support. Having subsequently reviewed the material filed by Mr Defa (outlined above), his first two statements make explicit reference to the provision of nursing support during 2023.
124.Key Finding #4 The Tribunal finds that Mr Defa lied during the directions hearing when he said he could “not recall” whether he had ever had support from a nurse. The Tribunal does not accept that memory problems interfered with Mr Defa’s ability to recall or explain whether he had previously received nursing support.
125.During the hearing, counsel asked Mr Defa about the use of $35,139.66 from his NDIS plan dated 4 August 2022 to pay for health supports delivered by an enrolled nurse.
Counsel: And that wasn’t a support that was supported by the plan, was it?
Mr Defa: I can’t remember. That was – actually yes, I do remember. My support coordinator at the time, I raised my concerns in relation to medication overdose and at the time my cardiac issue was very active. And I had a meeting with her. And she said she can authorise for me to use the funding to use for nursing.[121]
[121] Transcript, Day 4, p266, [19-31].
126.Mr Defa confirmed that his plan was changed to agency managed in May 2023, meaning he could no longer access nursing supports, adding that it took “the choice and control from me”.[122] He denied being informed that the reason for the change in plan management was due to his use of funding for supports that were not authorised by the plan (contrary to section 46 of the NDIS Act).[123] Mr Defa claimed that the change in plan management disrupted his supports, however he then “checked and verified with the agency. I just followed the instructions… and [they] reinstated my support work and also my nursing support”.[124] He claimed to resume nursing support until November 2023 when his plan was again changed.[125]
[122] Transcript, Day 4, p267 [5-13].
[123] Transcript, Day 4, p267 [19-24].
[124] Transcript, Day 4, p267 [40-44].
[125] Transcript, Day 4, p268 [6-18].
127.Dr Bertino’s records indicate Mr Defa told her he had a nurse on 8 December 2022 and 2 February 2023.[126]
[126] E11(C) and E11(D).
128.Mr Sletcher’s report indicates that during the functional capacity assessment on 18 September 2023, Mr Defa told him he was receiving 8-10 hours of registered nursing support per day and that “only a registered nurse is allowed to administer his medication”.[127] Mr Sletcher did not observe a nurse or a support worker at Mr Defa’s house for the duration of the 2-hour assessment.
[127] C13 of JHB1, p322 135 B2 of JHB2, p31.
129.Following the second directions hearing, which included a discussion of Mr Sletcher’s report and his assumption that Mr Defa was receiving nursing support, Mr Defa filed his final written statement dated 19 August 2024. He claimed to have had a support worker providing overnight care and an enrolled nurse administering his medication between 21 August 2023 and 26 November 2023.135 Mr Defa did not provide any other evidence about the support received during this period or how it was paid. Neither of his support workers gave evidence about providing overnight care in Australia.
130.The Tribunal did not receive any evidence about who was paid the $35,139.66 prior to Mr Defa’s plan management being changed to Agency managed.
131.The Tribunal is unable to determine what, if any, nursing support has ever been provided to Mr Defa in Australia. Despite the Tribunal inviting a statement from the nurse, this evidence was not forthcoming.
132.Key Finding #5 The Tribunal finds that Mr Defa either withheld information from the Tribunal about the identity of the nurse(s) including their name, qualifications, hours worked and how they were paid (beyond the $35,139.66 used from his NDIS plan dated 4 August 2022) or he did not have a nurse.
133.Key Finding #6 The Tribunal is satisfied that Mr Defa reported the existence of nursing support to his treating practitioners to obtain evidence from them in support of the ongoing
provision of nursing support by the NDIS. His treating practitioners did not verify the provision of nursing supports as claimed by Mr Defa.
134.Key Finding #7 The Tribunal is satisfied Mr Defa lied to Mr Sletcher about receiving up to 10 hours of nursing support each day during the functional capacity assessment on 18 September 2023 (as well as 20 hours of support work assistance per day).
135.Key Finding #8 The Tribunal does not accept Mr Defa’s evidence that he received nursing support between 21 August and 26 November 2023 (just before he travelled to Ethiopia for 3 months), as outlined in his statement dated 19 August 2024.
(d)where toileting assistance alone is required, up to 1 hour a day.[549]
[549] 576 A1 of JHB2, p10.
504.The guideline indicates that 6 hours for personal care would be justified in circumstances where someone has very high support needs, such that they require, for example, positioning and/or bowel management. The Tribunal is satisfied this is not the case with Mr Defa.
505.The Respondent contended that Mr Defa is increasingly reliant on core supports which does not encourage his independence.576 Mr Baldock concluded that Mr Defa is likely impacted by deconditioning and self-limiting behaviours.[550] The Tribunal cannot be satisfied that the request for 7 hours of nursing support and 17 hours of support worker assistance is effective or beneficial for Mr Defa and in line with good practice. It is difficult to determine whether any benefit has been achieved through the provision of support worker assistance to Mr Defa, particularly at the level that it has been provided or utilised, with the loss of
[550] D2 of JHB1, p30.
independence and the creation of dependence seeming to be the overriding outcome of this support.
506.As will be discussed below, the level of reliance exhibited by Mr Defa has satisfied the Tribunal that Rule 5.1 is engaged, further precluding the level of support requested.
Rule 5.1 – Support likely to cause harm to a participant
507.Rule 5.1 of the Supports Rules stipulate that a support will not be provided or funded under the NDIS if it is likely to cause harm to the participant.[551] Harm is not defined in the NDIS Act. Harm is defined by the Cambridge dictionary as “physical or other injury or damage”.579
[551] National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth). 579 580 See F8 at [31].
508.The Tribunal is firmly of the view that the current level of deconditioning and self-limiting behaviour associated with Mr Defa’s current use of support worker assistance rises to a level constituting potential or actual harm to his physical and mental wellbeing. The provision of additional support worker assistance would simply raise the risk or severity of harm by further reducing his functional capacity and increasing his dependence on others.
CONCLUSION
509.Prior to the conclusion of the hearing, the Respondent offered Mr Defa 7 hours of support worker assistance per day to settle the matter, explaining that it was the maximum amount permitted by the legislation and rules. He rejected this offer. Following the hearing, the Respondent revised their position, contending that 4 hours per day would be reasonable and necessary. Having carefully considered the evidence, the Tribunal is unable to agree with the Respondent that 7 or 4 hours of support worker assistance per day for the next 12 months represent reasonable and necessary supports pursuant to section 34(1) of the NDIS Act, nor does the Tribunal agree that either level of support represents the correct or preferable decision.580
510.Further, the Tribunal cannot be satisfied on the evidence that the reviewable decision of the Respondent to fund 5 hours of support worker assistance per day is the correct decision. It
may be the case that daily support is not required at all. However, due to the inconsistent evidence provided by Mr Defa, particularly in relation to his functional capacity, and the false and/or misleading information which contaminated much of the expert evidence, the Tribunal is unable to determine what Mr Defa actually needs and what supports would therefore be reasonable and necessary. To attempt to do so would be guesswork. Accordingly, the Tribunal must make the preferable decision as the circumstances permit.
511.Mr Baldock’s evidence suggests that when reliance on supports becomes entrenched, it can take time and effort to withdraw those supports. The Tribunal is cognisant of this issue noting that Mr Defa appears to have been permitted to use double the rate of support worker hours while his matter has been before the Tribunal. This has allowed him to effectively determine what he considers ‘reasonable and necessary’ supports. It is unclear to the Tribunal what measures could have been put in place by the Respondent to curb his overuse of funds and the continuing normalisation of high levels of support worker assistance. The Tribunal observes that the recent changes to the NDIS Act go some way to addressing the issue of over-spending and raise the prospect of a participant incurring a debt for repeated breaches of section 46.
512.Dr Vadasseri’s suggestion that Mr Defa be monitored by an OT, physiotherapist and psychologist in an in-patient setting to properly assess his baseline ability is not without merit, though such an arrangement would likely occur through the health or mental health system.[552] The Tribunal notes that in accordance with section 36(2)(b)(ii) of the NDIS Act, the CEO of the NDIA may request Mr Defa to undergo a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person, for the purpose of preparing a report. The CEO may suspend the development of a new plan for Mr Defa should he fail to comply with such a request, subject to several considerations.[553]
[552] See Rule 7.4 – 7.7 of the Supports Rules.
[553] See subsections 36(3),(3A),(4) and (5) of the NDIS Act.
513.In the Tribunal’s view, such an assessment is required to properly determine whether Mr Defa continues to meet the access criteria, and if so, his functional capacity and support needs. This would properly inform the development of a new plan. The Tribunal recommends a copy of this decision be provided to any person engaged by the Respondent to assess Mr Defa pursuant to section 36 of the Act.
514.Mr Baldock recommends weekly sessions with an OT for the first year. As a matter of priority, Mr Defa should arrange regular appointments with an OT and other allied health providers to build his functional capacity and independence over the coming weeks and months. Such a process will (hopefully) involve an experienced OT working with Mr Defa to assess his actual functional capacity, recommend appropriate assistive technology/equipment and provide advice regarding new routines, practices and/or modified movements.
515.Mr Baldock’s evidence suggests the process to reduce reliance on supports can take time and significant effort. His explanation of the difficulty often associated with withdrawing supports, in this case, support worker assistance, provides an evidentiary basis to allow some time for such a transition in Mr Defa’s matter. The Tribunal notes that this decision will involve an immediate reduction in support worker assistance, from 10 hours (currently used) to 5 hours (approved in the plan) per day. It may also result in a further reduction in support worker assistance hours following any reassessment.
516.Mr Defa’s plan is due for re-assessment in April 2025. The Tribunal is satisfied this allows a reasonable period of time for the Respondent to consider this decision and exercise any powers it wishes to do so under section 36. It also allows Mr Defa time to engage with the capacity building supports funded in his SOPS and to adjust to 5 hours of support worker assistance per day.
517.The Tribunal will not make an order in relation to the funding of a Webster-pak, noting Mr Defa has provision for low-cost assistive technology in his plan and it may be the case that an OT can support Mr Defa to improve his medication regime with a dosette box and/or other processes. The Agency may choose to include funding for a Webster-pak as part of a consumables budget in the future.
518.While the Tribunal is mindful that Mr Defa will be very unhappy with this decision and acknowledges it will result in changes to his current day-to-day life, the Tribunal must make decisions according to the evidence and the law. The Tribunal has no ill will towards Mr Defa and trusts that he has the capacity to seek help should he experience a decline in his mental health, including a request for an in-patient admission. The Tribunal observes that in circumstances of acute mental health deterioration, the mental health system is most appropriately placed to provide services and support.[554] NDIS support workers are not necessarily trained, qualified, or equipped to respond to participants experiencing acute mental health distress.
[554] See Rules 7.6 and 7.7 of the Supports Rules and Operational Guideline – Mainstream and community support interfaces, 2 May 2024, C2 of JHB2
519.Following 8 days of hearing and hundreds of pages of evidence the Tribunal is satisfied that Mr Defa does not need 7 hours of nursing support nor 17 hours of support worker assistance per day. However, due to the evidentiary matters discussed throughout this decision, the Tribunal is unsure what exactly Mr Defa needs and by virtue of that, what might be reasonable and necessary supports for the NDIS to fund or provide. For this reason, the Tribunal affirms the reviewable decision as the preferable decision within the limits discussed; allowing for a 6-month period of re-assessment and transition which will hopefully provide a pathway to greater independence for Mr Defa.
DECISION
520.The Tribunal affirms the decision under review.
Date(s) of hearing: 3 to 12 September (8 days)
Applicant: In person / By video
Counsel for the Respondent: Ms Natalie Blok
Solicitors for the Respondent: Ms Taylor Hawcridge, Maddocks
Annexure A: Exhibit List
Tribunal Book Index – Marked as JHB1
Tab Document Date Page No PART A
T-Documents
T1 AAT Application for Review of Decision (T1) 5 July 2023 1 T1A Report, Dr Melanie Bertino (Clinical Psychologist) (T1A) 3 August 2019 9 T1B Letter, Dr Olivia Ong (T1B) 10 September 2019 14 T1C Report, Dr Frank Soden (Emergency Department) (T1C) 13 March 2020 16 T1D Letter, Dr Emily Kotschet (Cardiologist) (T1D) 29 March 2020 18 T1E Letter, Dr Xiao Nan Wang (T1E) 30 March 2020 19 T1F Summary, Dr Xiao Nan Wang (T1F) 9 May 2020 20 T1G Report, Hannah Miller (Psychologist and
Clinical Neuropsychologist Registrar) (T1G)26 May 2022 26 T1H Ganga Ganesvaran (Neurologist) (T1H) 12 July 2022 34 T1I Letter, Dr Emily Kotschet (Cardiologist) (T1I) 18 July 2022 36 T1J Letter Dr Xiao Nan Wang (T1J) 18 July 2022 37 T1K Letter, Prof Sree Appu (Urological Surgeon) (T1K) 31 May 2022 39 T1L Plan, Dr Xiao Nan Wang (T1L) 16 May 2023 40 T2 Internal Review Decision (Respondent Copy) (T2) 22 June 2023 41 T3 Extract of Interaction Notes, s100 request (T3) 23 May 2023 46 T4 Extract of Interaction Notes, Phone Conversation with participant (T4) 22 June 2023 47 T5 NDIS Plan (04.08.2022 – 02.08.2025) (T5) 5 August 2023 49 T6 NDIS Plan (17.05.2023 – 16.05.2024) (Original Decision) (T6) 17 May 2023 63 T7 Sections 33-35 of the National Disability
Insurance Scheme Act 2012 (NDIS Act) (T7)77 T8 National Disability Insurance Scheme (Supports for Participants) Rules 2013 (The Rules) (T8) 80
T9 NDIS Operational Guidelines – Planning (T9) 98 T10 Plan Management Rules (t10) 153 T11 Operational Guidelines – Reasonable and
Necessary Supports (IRD: Page 15 – What You
Can’t Spend Your Funding On) (T11)
174 T12 Our Guidelines – How We Make Decisions (T12) 217 T13 What Supports Can You Buy With Your NDIS Funding (T13) 218 PART B Participant’s New Plans B1 NDIS Plan (21.11.2023 – 23.11.2024) 23 November 2023 219 B2 NDIS Plan (16.04.2024 – 16.04.2025) 16 April 2024 232 PART C Applicant’s Supplementary Documents C1 Monash Health Discharge Summary 17 March 2020 243 C2 Letter, Dennis Engler, Endocrinologist 27 July 2020 249 C3 Letter, Dr Frank Laska, Rheumatologist 16 August 2021 250 C4 Medication History, M Hanna Pharmacy 1 July 2023 – 21 May
2024
252 C5 Letter of Support, Dr Srirekha Vadasseri, Psychologist 4 August 2023 267 C6 Letter, Dr Srirekha Vadasseri, Psychologist 8 August 2023 268 C7 Support Letter, Alana Collins, Neuropsychologist 9 August 2023 269 C8 Letter, Dr Melanie Bertino, Psychologist 16 August 2023 272 C9 Letter, Dr Xiao Nan Wang 18 August 2023 276 C10 Applicant’s Further Evidence 11 September 2023 282 C11 Monash Imaging Results 23 September 2023 289 C12 Report, Alana Collins, Neuropsychologist 26 September 2023 290 C13 Functional Capacity Assessment Report, Andrew Sletcher, Occupational Therapist 28 September 2023 319 C14 Applicant’s Response to Further Information Requested 25 October 2023 339 C15 Letter, Andrew Slecther, Occupational Therapist 1 May 2024 345
C16
Reply to request for further information, Andrew Sletcher, Occupational Therapist
7 May 2024
347
C18
Letter, Dr Xiao Wang, General Practitioner
9 May 2024
357
C19
Letter, Dr Srirekha Vadasseri, Psychologist
29 May 2024
367
C20
Letter, Hasiam Rafaie, Support Worker
30 May 2024
369
C21
Statement of Lived Experience, Applicant
30 May 2024
372
C22
Letter of Support, Mina Youssef, Pharmacist
30 May 2024
376
C23
Letter, Dennis Engler, Endocrinologist
22 June 2024
377
C24
Applicant’s Weekly Schedule of Registered Nurse
Undated
379
C25
Applicant’s Weekly Schedule of Support Workers
Undated
381
C26
Statement of Lived Experience, Applicant
Undated
383
C27
Support Coordinator Responses
Undated
389
PART D
Respondent’s Documents
D1
Home and Living Decision
23 November 2023
391
D2
Functional Capacity Assessment Report, Adam Baldock, Occupational Therapist
25 June 2024
395
Supplementary Tribunal Book Index – Marked as JHB2
Tab
Document
Date
Page No.
Part A
Respondent’s Additional Documents
A1
Respondent’s Statement of Facts, Issues and Contentions
26 July 2024
1
Part B
Applicant’s Additional Documents
B1
Letter, Misgana Solomon, General Manager of Redat Healthcare
Undated
28
B2
Additional Statement, Lelisa Defa
19 August 2024
31
B3
Applicant’s Statement of Facts, Issues and Contentions
20 August 2024
34
Part C
Additional NDIS Operational Guidelines
C1
Operational Guideline – Mainstream and Community Supports Overview
24 August 2021
40
C2
Operational Guideline – Mainstream and Community Supports interfaces
2 May 2024
48
C3 Operational Guideline – Disability-related health supports 29 September 2023 82 C4 Including Specific Types of Supports in Plans
Operational Guideline – Personal Care Supports10 June 2022 101 Summons Materials Summons Exhibit Marker Document identified within exhibit Page
NumbersFurther
Exhibit
NumberAlfred Health
E1
The Alfred Patient Information and
Health Questionnaire dated 27 July 2023
23-26
E1(A)
Nursing IP Progress Note dated 16 October 2023 34 E1(B) Radiology Results by Dr T Phan dated 24 July 2023 52 E1(C) General Assessments Fall Information dated 22 April 2024 and 16 October 2023 54-55
E1(D) Dr Frank Laska
E2
Letter from Dr Engler to Dr Laska dated 21 June 2021
5
E2(A)
Report of Dr Maged Bekheet
(Radiologist) dated 18 February 20217
E2(B)
Letter from Emily McLean dated 27 January 2022 13 and 15 E2(C) Physiotherapy Treatment Plan dated 13 January 2022 17 E2(D) Letter from Dr Frank Laska dated 16 August 2021
23-25
E2(E)
Letter from Dr Frank Laska dated 4 July 2022 27 E2(F) Ganga
Ganesvaren
E3
Pages 3-12 for context of referral N/A E3(A) Letter from Dr Dennis Engler dated 11 November 2023
50-51
E3(B)
Melbourne Pain Group
E4
Letter from Dr Kenneth Shum dated 6 January 2021
15
E4(A)
Letter from Dr Olivia Ong dated 18 May 2021
17-18
E4(B)
Letter from Dr Olivia Ong dated 1 June 2021 19 E4(C) Email from TAC dated 6 July 2021 27 E4(D) References to driving within Melbourne Pain Group Documents
101,132,451 ,468
E4(E)
Consultation Records, Various Dates 239 and 432 E4(F) References to ‘unconscious/fall/cardiac’
291
E4(G)
Consultation Record dated 2 July 2020
451-452
E4(H)
References to Mr Defa’s Diet
453
E4(I)
Letter from Dr Srirekha Vadasseri dated 25 September 2023
582-588
E4(J)
Letter from Dr Srirekha Vadasseri dated 20 October 2023
589-590
E4(K)
Monash Health
E5
References to ‘No dietary requirements / diabetic diet’
208, 467,
809, 1460 and 1884
E5(A)
Discharge/Transfer Documentation relating to ‘overdose’ dated 12 November 2021
644-647
E5(B)
Progress notes regarding ‘overdose’ dated 12 November 2022
653
E5(C)
Admission re diabetes
806-858
E5(D)
No swallowing issues
816
E5(E)
Activities of Daily Living, various dates
824-826
E5(F)
References to Falls risk
830-832
E5(G)
Mobility status
853-854
E5(H)
Neuromuscular/Limb Assessment, various dated
858
E5(I)
Admission notes / discharge summary re unconscious collapse at home 16.9.2022
1026-1030
E5(J)
Psychology Comm Progress E-Notes dated 14 September 2020 1868 – 1869 E5(K) Letter from Ibrahim Ali dated 8 September 2020 pain specialist
1998-2000
E5(L)
Professor Sree Appu
E6
Letter to Dr Farag dated 19 July 2023
6
E6(A)
Letter of 1 March 2023
8
E6(B)
Letter of 2 March 2023
9
E6(C)
Letter of May 2023 11 E6(D) Letter of June 2023
16
E6(E)
Letter to Dr Farag of 2 March 2023 20 E6(F) Stud Road
Medical
Centre
E7
List of Current Medications & General references to prescriptions
2-69
E7(A)
Script dates various 57 and 61 E7(B) Summary of various patient visits
69-74
E7(C)
References to dependency on palexia 75 and 137 E7(D)
Various consultations
173, 174,
175, 176,177, 178
E7(E)
Various consultations
75, 150, 160-1
E7(F)
Letter from Dr Vadasseri to Dr Wang dated 4 November 2020 362 – 363 E7(G) Letter from Dr Anupam Pokharel to Olivia
Virt
521-540 E7(H) Monash Health – Patient Discharge Summary dated 19 September 2022
666-671
E7(I)
Letter from Ganga Ganesvaren dated 18 October 2022
687-688
E7(J)
Letter from Dr Xiao Nan Wang dated 4 May 2023
770-773
E7(K)
Letter from Dr Srirekha Vadasseri dated 4 August 2023
786
E7(L)
Referral to St John of God Berwick Hospital
788-789
E7(M)
TAC Letter dated 17 January 2024
892
E7(N)
Letter from Dr Kotschet to Dr Wang dated 4 March 2024
895
E7(O)
Letter in relation to ‘total incapacity’
1071-2
E7(P)
Chronic Disease Management
1135-1136
E7(Q)
Victorian
Neuropsycho logy
Rehabilitation
Services
E8
Admission to Geelong Clinic
40-41
E8(A)
2011 psychiatry history
103
E8(B)
Melbourne Heart Care
E9
Letter from Dr Emily Kotschet dated 4 March 2024
Marked as ‘Defa 3’
E9(A)
Letter Dr Kotschet re. travel to Ethiopia October 2023
Marked as
‘Defa 4’
E9(B)
St John of God Berwick
E10
St John of God Berwick – Exported Patient Medical Records
1-47
E10
Patient Health Questionnaire dated 7 June 2023 9 – 14 E10(A) Patient Mobility and Transfer Risk Assessment dated 20 June 2023 26 E10(B) Falls Risk Assessment and Management Plan dated 20 June 2023 28 E10(C) Dr Melanie Bertino
E11
Dr Bertino Summons Part 1
1-63
E11 (Part 1)
Dr Bertino Summons Part 2
1-106
E11 (Part 2)
Dr Bertino Summons Part 3
1-175
E11 (Part 3)
Dr Bertino Summons Part 4
1-50
E11 (Part 4)
Letter from Dr Melanie Bertino dated 28 June 2020
Part 1, Page 53-57
E11(A)
Letter from Dr Melanie Bertino dated 17 June 2022
Part 1, Page 60-63
E11(B)
Letter from Dr Melanie Bertino dated 8
December 2022Part 2, Page 24
E11(C)
Notes dated 2 February 2023
Part 2, page 26
E11(D)
Notes dated 6 April 2023
Part 2, page 29
E11(E)
Notes dated 12 May 2023
Part 2, page 36
E11(F)
Letter from Dr Michael Lau dated 12 June 2021
Part 3, page 54
E11(G)
Discharge Summary dated 17 March 2020
Part 3 page 62-67
E11(H)
PTSD Checklist for DSM-5
Part 3, page 98-99
E11(I)
Letter from Dr Bertino to Dr Vadasseri dated 11 September 2021
Part 3, Page 128
E11(J)
Letter from Dr Bertino to Dr Vadasseri dated 29 July 2021
Part 3, Page 171
E11(K)
Notes dated 19 June 2024
Part 4, page 10
E11(L)
Notes dated 31 July 2024
Part 4, page 12
E11(M)
Notes dated 5 June 2024
Part 4, page 29
E11(N)
Digestive Health Centre
E12
Digestive Health Centre – Summons documents
1-22
Further Documents Filed During or After the Hearing Document Name Date Filed Exhibit
Number
Hanna Pharmacy – Patient History from 01/03/2024 – 05/09/2024 5 September 2024 F1 Email from Mr Defa regarding NDIS Grace Period Extension Outcome 6 September 2024 F2 Picture of Shower Chair 9 September 2024 F3 Nursing Invoices from Ethiopia Trip 9 September 2024 F4 Pictures of Hospitalisation in Ethiopia 10 September 2024 F5 Pictures of Mr Defa during plane transitions
10 September 2024
F6
Pictures of Medication taken to Ethiopia
10 September 2024
F7
Respondent’s further submissions regarding amendments to NDIS Act
29 October 2024
F8
1
8
0