DFFG and National Disability Insurance Agency - [2023] AATA 264

DFFG and National Disability Insurance Agency [2023] AATA 264 (30 January 2023)

Division:GENERAL DIVISION
File Number(s): 2021/2927
Re:DFFG
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

Decision

Tribunal:The Honourable Pru Goward AO, Senior Member
Date:30 January 2023
Place:Sydney

The Tribunal affirms the decision under review dated 26 April 2021 to approve the statement of supports under the Applicant’s plan.

……………………[SGD]………………………………

The Honourable Pru Goward AO, Senior Member

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME (NDIS) - Environmental restrictive practice – childproofing – all parts of a person’s environment – freedom of movement – behavioural support plan – whether support is reasonable and necessary – value for money – requirements of support workers – NDIS Act - Disability Act 2006 (Vic) – authorisation process – state and territory legislation

Legislation
Disability Act 2006 (Vic)
National Disability Insurance Scheme Act 2013 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016

Cases
In the matter of Ben (Guardianship) [2020] ACAT 82
KKD [2019] NSWCATGD 4
NGT [2019] NSWCATGD 2
Re WD [2019] SACAT 37
MZC [2018] NSWCATGD 34

Secondary Materials
National Disability Insurance Scheme Guidelines, Restrictive Practices
Restrictive Practices for Children and Young People Guide

REASONS FOR DECISION

The Honourable Pru Goward AO, Senior Member

8 December 2022

INTRODUCTION

The Applicant, DFFG, became a participant in the National Disability Insurance Scheme (‘the Scheme’) in 2017. On 27 January 2021, a statement of supports was approved under subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (‘the Act’).
In April 2021, the Applicant sought review of the decision to approve the statement of supports under the Applicant’s plan. Additional core funding had been sought for home modifications for a locked fence and automated gate to address the risks of the Applicant absconding from the family home.
On 26 April 2021, an internal review decision was made pursuant to section 100 of the Act which affirmed the decision under review, therefore denying funding for the fence and gate. This decision is hereupon referred to as the decision under review.
On 7 May 2021, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision under review under section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’).
The Tribunal held a final hearing of this matter on 22 and 23 November 2022. Witnesses were the Applicant’s mother; Ms Helen Charalambous, Occupational Therapist (‘OT’) and Ms Connie Tse, OT.
ISSUES
The Tribunal must decide:
(a) whether the requested support constitutes a restrictive practice; and
(b) whether the provision of a security fence and gate is a ‘reasonable and necessary support’ under section 34 of the Act.
A further issue, that being the application of a residual discretion by the Tribunal to refuse to fund a support, was identified by the Respondent but not pursued at the hearing and consequently does not form part of this decision.
The parties agree, in their respective submissions, that the issues identified in [6] – [7] are the issues which must be decided by the Tribunal, although the Respondent contends that if the requested support is a regulated restrictive practice (‘RRP’), then it is not necessary to determine whether it is reasonable and necessary, pending the decision of the Victorian authorities.
BACKGROUND
The Applicant is a 12-year-old boy who was granted access to the NDIS based on his autism spectrum disorder (ASD), generalised anxiety disorder, intellectual disability and speech disorder. He lives with his parents and two siblings in their privately owned home in Victoria.
The Applicant’s parents have reported the Applicant absconded on two occasions in 2019 and there were a series of ‘near misses’ (absconsions) when support workers omitted to lock the front door. The parents consider that the Applicant is at considerable risk of absconding in future and lacking the capacity to be safe in these circumstances.
Following the two absconsions, the family installed locks on the front doors and all family members remain vigilant about keeping it locked when the Applicant is present. Support workers in the house are also expected to ensure that the front doors are locked when the Applicant is present.
The Applicant receives funding for Behaviour Intervention to assess and provide strategies to lessen the Applicant’s absconding and self-harming and increase his safety in the home and community. Covid restrictions in Victoria and the difficulty of identifying sufficient expertise have hindered the development of a Behaviour Support Plan to assist the Applicant with his behaviours of concern, namely self-harming and absconding.
The Applicant has free access to the enclosed back garden, where he spends time on the trampoline and playing.
The Applicant is collected for school by a bus which stops outside his house. His school is heavily secured with fencing and locked gates. Reportedly, he has not attempted to abscond from school.
The Applicant has developed strong opposition to wearing seat belts which severely limits his family’s capacity to take him on social or community events, or to off-site therapy.
RELEVANT LEGISLATION AND POLICY
Reasonable and Necessary Supports
Section 34 of the Act requires the CEO to be satisfied that a requested support is both reasonable and necessary. Subsection 34(1) identifies the criteria which each request must meet. For completion, these are as follows:
(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; and
(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery …
Further, subsection 34(2) of the Act stipulates that the support must comply with the methods or criteria (if any) prescribed by the National Disability Insurance Scheme rules in deciding the reasonable and necessary supports that will be funded under the National Disability Insurance Scheme.
While each of the section 34 criteria is relevant to this case, the Applicant and Respondent have agreed that criteria (a) to (d) are of utmost relevance.
Notably, the NDIS Rules - Supports for Participants (hereupon referred to as ‘the Rules’) enlarges upon the criteria set out in section 34 of the Act and also stipulates when a support cannot be funded. Of relevance in this matter is Rule 5.3(a): a support will not be funded or provided if the provision of the support would be contrary to a law of the Commonwealth, or of the State or Territory in which the support would be provided. This includes the use of RRPs, which are otherwise unauthorised unless conditions imposed by the local State or Territory are first met.
Regulated Restrictive Practices
The Tribunal considers that the threshold issue to be determined is whether the fence and locked gate constitute a restrictive practice.
Section 9 of the Act defines a restrictive practice as:
any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability.
The Act also outlines the requirements of National Disability Insurance Agency (‘NDIA’) providers to minimise the use of restrictive practices and the leadership role of the NDIA Safeguards and Quality Commissioner in such minimisation, particularly the development of Behaviour Support Plans (‘BSPs’) to be used in conjunction with restrictive practices. It also sets out the requirements for compliance with relevant state and territory legislations.
For a more detailed understanding of the use of restrictive practices, such as fences and gates, it is necessary to consult the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (‘the RRP Rules’).
Noting that only regulated restrictive practices are covered by the RRP Rules, section 6 provides the following classification of RRPs:
(a) seclusion, which is the sole confinement of a person with disability in a room or a physical space at any hour of the day or night where voluntary exit is prevented, or not facilitated, or it is implied that voluntary exit is not permitted;
(b) chemical restraint, which is the use of medication or chemical substance for the primary purpose of influencing a person’s behaviour. It does not include the use of medication prescribed by a medical practitioner for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition;
(c) mechanical restraint, which is the use of a device to prevent, restrict, or subdue a person’s movement for the primary purpose of influencing a person’s behaviour but does not include the use of devices for therapeutic or non-behavioural purposes;
(d) physical restraint, which is the use or action of physical force to prevent, restrict or subdue movement of a person’s body, or part of their body, for the primary purpose of influencing their behaviour. Physical restraint does not include the use of a hands-on technique in a reflexive way to guide or redirect a person away from potential harm/injury, consistent with what could reasonably be considered the exercise of care towards a person;
(e) environmental restraint, which restrict[s] a person’s free access to all parts of their environment, including items or activities.
Section 9 of the RRP Rules also requires the authorisation of the restrictive practice in a state or territory with such an authorisation process. For completion:
(1) This section applies if:
(a) a State or Territory has an authorisation process (however described) in relation to the use of a regulated restrictive practice; and
(b) a registered NDIS provider provides supports or services to a person with disability in the State or Territory.
Note: An authorisation process may, for example, be a process under relevant State or Territory legislation or policy or involve obtaining informed consent from a person and/or their guardian, approval from a guardianship board or administrative tribunal or approval from an authorised State or Territory officer.
(2) The registration of the registered NDIS provider is subject to the following conditions:
(a) the use (other than a single emergency use) of the regulated restrictive practice in relation to the person with disability must be authorised in accordance with the authorisation process;
(b) the provider must lodge with the Commissioner evidence that the use is so authorised as soon as reasonably practicable after the use of the practice in relation to the person.
The Regulated Restrictive Practices Guide October 2020 sets out the conditions which must be met when a regulated restrictive practice is used in accordance with the RRP Rules. These are to be found on Page 5 of the Guide and for completion, that they must:
a) be clearly identified in the behaviour support plan;
b) if the State or Territory in which the regulated restrictive practice is to be used has an authorisation process (however described) in relation to that practice, be authorised in accordance with that process;
c) be used only as a last resort in response to risk of harm to the person with disability or others, and after the provider has explored and applied evidence-based, person-centred and proactive strategies;
d) be the least restrictive response possible in the circumstances to ensure the safety of the person or others;
e) reduce the risk of harm to the person with disability or others;
f) be in proportion to the potential negative consequence or risk of harm; and
g) be used for the shortest possible time to ensure the safety of the person with disability or others.
With respect to paragraph 21(b), if the State or Territory in which the regulated restrictive practice is to be used has an authorisation process in relation to that practice, be authorised in accordance with that process.
Section 4 of the RRP Rules notes that:
Obligations in this instrument do not affect any obligation a person has under a law of a State or Territory to the extent that such a law is capable of operating concurrently with the obligations created under the National Disability Insurance Scheme Act 2013 (NDIS Act), see section 207 of the NDIS Act.
As the Applicant resides in Victoria, obligations under the Disability Act 2006 (Vic) also apply and form part of the considerations in this matter. These obligations are addressed summarily as part of this decision.
Acknowledging the importance of keeping a child safe, on Page 17 of the NDIS Quality and Safeguards Commission’s Regulated Restrictive Practices with Children and Young People with Disability Practice Guide, it distinguishes between RRPs and child safety and injury prevention practices in the following way:
Child safety and injury prevention practices are age appropriate, in line with community standards and used irrespective of whether a child or young person has a disability. They are used to promote safety and wellbeing. Their use is not dependent on the presence of behaviours of concern. As such, child safety and injury prevention practices (sometimes also referred to as ‘child-proofing’) are not typically considered regulated restrictive practices and do not require reporting to the NDIS Commission.
… The continued use of child safety and injury prevention practices with older children and young people with disability may constitute a regulated restrictive practice in some circumstances. For example, when the practice impinges on the rights or freedoms of movement of a child or young person and is implemented, specifically in response to behaviours of concern then this meets the definition of a restrictive practice under the NDIS Act 2013.
In addition to reliance on the Act and its accompanying RRP Rules and guidelines for children and young people, the Respondent sought the view of the NDIS Quality and Safeguards Commission on whether the proposed fence and locked gate would be likely to constitute a RRP. While the Tribunal is not obliged to accept any necessarily preliminary view of the Commissioner in deciding whether a fence and locked gate constitute a RRP, the Commissioner’s role in managing RRPs in the NDIS is such that the advice is useful. In a letter to the Respondent’s lawyers, Sparkes Helmore Lawyers, dated 30 August 2022, the Commissioner advised on Page 5 that the requested support would be viewed as a RRP for the following reasons:
·Use of the locked fence and gate to prevent the participant DFFG from freely leaving is not considered an age-appropriate practice. It is not in line with community standards for a 12 year old child and would not be typically used with age equivalent peers without disability. The proposed use of a locked fence and gate is in direct response to behaviours of concern, specifically as a means of preventing absconding.
·Use of the locked fence and gate in the circumstances, would restrict the participant’s free access to all parts of their environment, which for the avoidance of doubt includes outside the boundaries of the [participant’s] home. This meets the definition of environmental restraint as outlined in section 6(e) of the Behaviour Support Rules (emphasis added). As such, it comes within the definition of a regulated restrictive practice.
The Tribunal notes this reasoning.
TRIBUNAL’S APPROACH
The Tribunal’s considerations in this matter first deal with whether the proposed gate and locked fence constitute a RRP, after taking into consideration the rules and guidelines previously referenced.
Where the Tribunal decides that the requested support is not a RRP, it would then consider whether it is a reasonable and necessary support for the purposes of funding it.
Alternatively, where the Tribunal decides that the requested support is a RRP, the conditions set out in the RRP Guide would need to be applied.
In particular, if the proposed support is a RRP, the Tribunal will consider how the Victorian legislative requirement that the support be authorised by Victorian authorities impacts on the sequencing of the decision to be made by the Tribunal regarding the requested support as reasonable and necessary.
CONTENTIONS
Applicant’s Contentions
The Applicant contends that the requested support is being sought as a ‘proactive measure….in line with the reasonable goals’ of his NDIS Plan, which include the Applicant being able to ‘explore the property safely and independently in line with the main goal of his NDIS plan to feel safe’.
The Applicant contends that the support requested is not a RRP because ‘the effect of this specific support would be to increase the access he has to his environment’.
The Applicant further contends that defining his environment as extending beyond the home boundary would have the unworkable effect of requiring any measure taken to limit his movements outside the house to be treated as a restrictive practice.
The Applicant contends that the proposed use of a fence and gate is ‘reasonable child proofing’ in line with the NDIS Practice Guide. Further, as stated on Page 69 of his Statement of Facts, Issues and Contentions (‘SOFIC’):
the erection of a fence and gate in a suburban front yard…is consistent with practices and measures many reasonable parents would undertake to ensure the safety of their child.
The Applicant contends that the supports being sought meet the requirements of section 34 of the Act that funded supports be reasonable and necessary.
Case law relied upon by the Applicant regarding consideration of a Restrictive Practice
While the Applicant references several cases where the issue of a restrictive practice has been dealt with by a state administrative tribunal through guardianship, the Applicant notes in their SOFIC that:
In the Victorian context, “consent” does not appear to arise as a legal concept under the relevant legal instruments. Specifically, the Disability Act does not provide for consent as an exception to the use of regulated restrictive practices.
The matters referenced by the Applicant are: In the matter of Ben (Guardianship) [2020] ACAT 82 (‘Ben’); KKD [2019] NSWCATGD 4; NGT [2019] NSWCATGD 2; Re WD [2019] SACAT 37 and MZC [2018] NSWCATGD 34. In each of these cases, the practices in question were found to be environmental restraints, requiring guardianship-related orders.
In Ben [2020] ACAT 82, the ACAT offered the view that ‘a temporary gate… is an environmental restraint but is not a restrictive practice.’ Since the fence and gate are, in this case, permanent, I do not consider that qualification should apply in this decision.
In KKD [2019] NSWCATGD 4, the Applicant highlights the NSWCAT’s observation:
In determining if a practice is a restrictive practice for which informed consent is required we must balance the right to autonomy of the person with the need to manage challenging behaviours in the interests and welfare of that person. We consider these practices in light of the lawfulness of the practice as well as the context, nature, degree and purpose of the restrictions to ensure that the person’s rights are not breached.
Again, the autonomy of the person is identified as a key consideration in deciding whether a practice is restrictive, notwithstanding that it may be in the interests and welfare of that person.

In summary, the Tribunal finds the cases referenced by the Applicant to confirm that the law regards a restrictive practice as one which restricts or limits the independence of the person. It is, as identified in KKD [2019] NSWCATGD 4, the granting of consent to such a practice which will take account of its impact on the ‘interests and welfare of that person’ such as the Applicant’s safety and independence, which are both referenced in his submissions and evidence before the Tribunal. This is addressed later in this decision.
Respondent’s Contentions
As stated in paragraph 50 of the Respondent’s SOFIC, the Respondent contends that the proposed use of a fence and gate:
is a regulated restrictive practice, namely an environmental restraint, because it will be imposed in response to a behaviour of concern – the Applicant’s reported absconding behaviour as well as the claimed risk of future absconding.
The Respondent contends that if the Tribunal finds the erection of a fence and locked gate in this case to be a RRP, its use will be subject to Rule 9 of the RRP Rules, in short, that it is subject to the approval process under the Disability Act 2006 (Vic), in particular, its authorisation process.
The Respondent contends that it would be erroneous for the NDIA to fund the proposed support without the Victorian authorisation since as stipulated in Rule 5.3(a) of The Rules, a support will not be funded if the provision of the support breaches a law of the Commonwealth, or of the State or Territory in which the support is to be provided.
The Respondent contends that only where the fence and locked gate are so authorised, is it necessary for the NDIS to consider funding them as a reasonable and necessary support.
Finally, the Respondent contends that if the Tribunal finds that the requested support is not a RRP, the above analysis remains relevant to consideration of section 34 in determining whether a requested support is reasonable and necessary. The Respondent also contends that the Tribunal has residual discretion under subsection 33(2) to reject the application. It is, however, important to note that discretion was not so addressed during the hearing.
Case Law relied upon by the Respondent was not provided to the Tribunal
Evidence
The Applicant contends that the requested support will enhance his independence, consistent with his plan. At paragraph 22 of the Applicant’s SOFIC, this evidence from his parents is given:
Securing our property with a front fence would meet the main goal on [Applicant’s name omitted]’s NDIS plan and that is to keep him safe, it would also open him up to explore our property independently – safely, and not restrict him to only the inside of our house and our secured backyard. Adding a front fence will support his social development by allowing him to see and possibly engage with people going past our property especially our neighbours who know and understand [the Applicant]’s complex needs, further developing his communication and social skills. One of his favourite things to do is collect sticks and watch the wind blow through the trees, he would be freely able to do this in the front of our property once it is secured with a fence.
A fence will NOT restrict his life, it will open him up to further skill development and independence. A fence will un restrict our life, we live restrictive practice each day in our prison like existence.
At the hearing, the Applicant’s mother gave an account of the daily difficulties and challenges of caring for her son. She described incontinence, headbutting glass windows, meltdowns and refusing behaviour. She described him as looking for opportunities to abscond, and also being
very smart, if he wants something he will work it out.
The impact of the Applicant’s disabilities on his family appears to be profound. She described their efforts to trial other, less invasive restrictions such as an alarm for the front door:
[The Applicant] went off whenever the alarm went off. It sent him into a meltdown.
The Applicant’s SOFIC opines that the installation of a fence and locked gate is in line with his plan and the aims and objects of the Act since it:
will support his social development by allowing him to see and possibly engage with people going past…further developing his communication and social skills.
The Applicant’s mother, in evidence before the Tribunal, said that a fence:
gives him more freedom. So he can sit in the garden and wander through it. So our neighbours can say hello.
When asked what she thought of the Respondent’s suggestion that the support was not necessary, she replied:
This is necessary for our son to come out to the front of our house. The family would not be stressed and anxious all of the time.
Under cross-examination, the Respondent asked the Applicant’s mother why it was insufficient for the Applicant to be able to watch the trees in the backyard, to which she replied: ‘Why shouldn’t he have access to the trees in the front yard, to his neighbours…he might decide to sit out the front. He would have that option.’
The independent OT, Ms Connie Tse, also agreed under cross-examination, that the installation of a fence would assist the Applicant’s social and economic participation and that:
following installation of a fence it would allow [the Applicant] to be outside of the house and it will help his independence.
She also agreed that it would improve the Applicant’s safety
because it would stop him going out onto the street…it’s a great risk to his safety given his intellectual functioning.
The Tribunal finds the evidence establishes that the provision of a front fence and locked gate is likely to give the Applicant opportunities for greater social participation within the boundaries of his home than those he currently enjoys within the house, and, most importantly, without compromising his safety. The Respondent made multiple attempts to establish that the opportunities to enjoy this greater opportunity would be limited by his school and weekend commitments, but essentially the evidence stands.
The Applicant concluded this contention in paragraph 73 of his SOFIC with the following statement:
The requested support would provide significant relief to the Applicant’s carers, as well as facilitate the core goals of his NDIS plan. To find that the request for a gate and fence is a regulated restricted practice that requires… a rigorous approval process…flies in the face of the spirit and intention of the entire scheme.
The Tribunal notes the detailed consideration of restrictive practices in legislation and supporting documentation relating to the NDIS.
The Respondent, but also the Applicant, traversed the intricate regulation of restrictive practices under the NDIS, as well as the relevant Victorian legislative requirements, in their submissions. Both referenced the requirements for authorisation of a restrictive practice under subsection 132ZR(1) of the Disability Act 2006 (Vic), which included that it is in accordance with the Applicant’s NDIS Behaviour Support Plan but, the Tribunal notes, does not require that it supports his NDIS plan goals.
The Respondent also went to some lengths to establish the responsibility of the NDIS Commissioner to provide ‘leadership in relation to behaviour support and in the reduction and elimination of the use of restrictive practices by NDIS providers’. There can be no doubt from the submissions that the management of RRPs is integral to the protection of the rights of NDIS participants. However, the Applicant rejected the ‘narrow and inappropriate’ view of the Respondent, and, by extension, the Commissioner, in identifying a restrictive practice as one intended to address behaviour(s) of concern.
The Tribunal finds, consistent with the case law and as established in the Act’s definition, Rules and Guidelines, that the Applicant’s anticipated increased opportunities for socialisation and greater freedom relative to his current confinement, or the facilitation of his core goals in his NDIS plan, or the relief to the Applicant’s carers, are not relevant factors in deciding whether the fence and gate constitute a restrictive practice.
The Tribunal notes that the greater opportunities for social participation and movement the requested support may provide the Applicant could be a consideration in any subsequent authorisation process.
The Applicant’s Counsel in submissions also contended that the proposed fence and locked gate would not restrict the Applicant’s freedom of movement, according to the definition of a restrictive practice as provided by section 9 of the Act, because the Applicant’s environment could only include his personal environment, that is, the house and grounds to the public roadway. Where this definition is accepted, then the provision of a fence and locked gate on the boundary of that personal environment, it is contended, cannot be considered restrictive. While in evidence, Ms Connie Tse accepted this definition of ‘personal environment’, the Tribunal does not consider that this is any more than her personal opinion and accordingly gives her acceptance little weight.
It is also argued in the Statement of Lived Experience filed by the Applicant’s parents that the actual effect of the proposed support will be to improve his access, as currently, without a fence:
[the Applicant] is unable to have access to his front yard. [He] is restricted to the house and secured back yard.
The Respondent’s final submissions observed that the definition of ‘environment’ is not provided in the Rules, but that there is
no need to limit the person’s environment to the person’s home and the words in the Rule itself impose no limitations on the environment.
Further, that the definition of a restrictive practice in section 9 of the Act ‘needs to be read consistently with [section] 6 of the Rules’. There was no disagreement that the fence and locked gate would limit the Applicant’s freedom of movement beyond the property boundary.
The Applicant contended that the Respondent’s ‘unrestricted view’ of ‘environment’ would mean that the current practices of locking the doors and confining the Applicant to his back yard when at home, also constituted restrictive practices and as concluded in his SOFIC, doing anything to stop [the Applicant] from leaving the home, perhaps wandering out onto the public paths and roads, could be considered a RRP requiring registration under the Act and authorisation under the Disability Act 2006 (Vic).
The Respondent did not disagree with this argument, merely observing in closing submissions that:
Multiple practices could be considered restrictive practices, such as locking of doors- this doesn’t alter the fact that it [the proposed fence and locked gate] is a restrictive practice because it restricts [the Applicant] ‘s freedom and is in response to a behaviour of concern.
The Tribunal considers that the definition of an environmental restrictive practice provided in section 6 of the Rules as restricting ‘a person’s free access to all parts of their environment, including items or activities’ is a straightforward statement unqualified by any implication that this only applies to their personal environment. The Tribunal therefore accepts the Respondent’s contention and accordingly finds that the proposed gate and fence will restrict the Applicant’s access to all parts of his environment.
The parties concurred that both the Rules and Guidelines provide additional structure for the decision-maker when determining whether a requested support constitutes a RRP.
In particular, as referenced by both the Respondent and Applicant, the Restrictive Practices Guide for Children and Young People contemplates that, in the case of children, there will be necessary child-proofing measures undertaken by parents and care givers to protect the safety of any child, with or without disability. Such child-proofing, which is necessarily not within the scope of the legislation, is distinguished from restrictive practices, which the Guidelines deem to be those in response to ‘behaviours of concern’.
The Tribunal now turns to these two further questions: whether the provision of the fence and locked gate is considered ‘child-proofing’, and if not, whether it is in response to ‘behaviours of concern’. Effectively, while the outcomes of the fence and gate may appear the same for both child-proofing and restrictive practices, that is, the Applicant’s safety, its restrictive nature requires the Tribunal to ascertain why the Applicant seeks such restriction of movement.
The Applicant’s SOFIC contends that:
The NDIS Commission’s own Practice Guide is supportive of the proposition that the use of a fence is not a regulated restrictive practice, but merely reasonable child proofing measures. As noted above, it explicitly considers fenced yards around houses as ‘child safety and injury prevention practices’ that ‘are not typically considered regulated restrictive practices and do not require reporting to the NDIS Commission’.
The Applicant’s mother, in her evidence to the Tribunal, was insistent that it was ‘child-proofing’ because the Applicant was a child, ‘a disabled child, and his safety is the number one goal in our plan’.
The Applicant’s submission made the case that this was ‘child-proofing’ at paragraph 69 of his SOFIC:
Indeed, the erection of a fence and gate in a suburban front yard that prevents a 13-year-old from going out onto the street is consistent with practices or measures many reasonable parents would undertake to ensure the safety of their child.
Again, at paragraph 70 of his SOFIC, the Applicant argues:
The Practice Guide states that the ‘continued use of child safety and injury prevention practices with older children and young people with disability may constitute a regulated restrictive practice in some circumstances’ (emphasis added). Here presumably when it refers to ‘young people’ it refers to young adults as opposed to ‘older children’. [The Applicant] is certainly not a young adult and he should not be considered an older child. He is young, and very vulnerable, the step of erecting a fence to prevent him from going out onto the road is a reasonable childproofing measure commensurate with his age and particular circumstances.
The Tribunal could find no reference in the Guidelines to accounting for the ‘particular circumstances’ of an Applicant and notes the term ‘young people’ is not ‘presumably’ defined as ‘young adults’. Rather, adolescents such as the Applicant here are contemplated as part of this definition.
The Respondent contends that if the requested supports were considered to be child-proofing, ‘consistent with practices or measures many reasonable parents would undertake’, then, consistent with the Act, they should be deemed an everyday expense which any other household would be required to meet. The Respondent noted that there was nothing to prevent the Applicant from installing the fence and gate at their own expense.
The Tribunal considers, on the balance of the evidence before it, that the Applicant has agglomerated the concept of child-proofing with his ‘particular circumstances’, which the Guidelines, including the examples provided therein, have carefully separated. The Tribunal finds that the proposed fence and gate are not intended to child-proof the property because no evidence was led that such support was to be provided merely because of the Applicant’s age.
The Tribunal must also consider whether the fence and gate are being sought as a means of dealing with an issue of concern, in this case, absconding.
The Applicant’s mother was invited to describe the two incidents of absconding which clearly frightened and distressed her family. This, she explained, led her to install dead locks, self-closing doors and seek the support of behaviour support practitioners (although ‘a major issue is finding professionals who can work with him’):
We live in constant fear [of [the Applicant’s] absconding]. My children live in a heightened state. It’s just stressful to have someone so vulnerable walk out the door who could be killed at any second. There’s a sickness of feeling and I never want to feel it again.
Clearly, the Applicant’s mother is understandably determined to prevent her son from absconding. She was closely examined on the level of effort she had made to engage behavioural support practitioners and apply their advice. Very honestly, she told the Tribunal that finding the right people who [the Applicant] would trust takes time and that:
I agree with a behaviour support plan but how long does it take to implement it, how long is a piece of string?
It was not difficult to sense the urgency the Applicant’s mother felt about ensuring her son’s safety and her view that the Applicant’s attempts to abscond were of concern.
The Applicant’s mother also observed during the hearing that the fence and gate would ‘provide[s] a secondary level of prevention in case of a failure of the doors’.
During cross-examination, it was put to the Applicant’s mother whether ‘the reason for the fence is the risk of absconding because he is disabled’ - to which she replied ‘yes’. In re-examination, when asked ‘would it be reasonable to use a fence and a gate to restrict a neurotypical child?’ she replied, ‘I wouldn’t need to, they have common-sense. My child isn’t neurotypical’.
Similarly, the evidence of the OT Ms Helen Charalambous, in her Interim Behaviour Support Plan, observes that:
Having a secondary safety net (fence) may assist the family with their anxieties and fear of [the Applicant] absconding.
In a letter dated 20 August 2021, tendered in evidence, Ms Charalambous, wrote that she was ‘writing to support’ the need for an appropriate fence to be built at the family home to reduce the chance of absconding, and that:
… although the building of the fence was an environmental restraint, the balance between a restrictive practice and safety was considered when agreeing to the recommendation of the installation of the fence.
In cross-examination, when asked whether the fence would be erected because ‘he is a thirteen-year-old child’, she replied, ‘because he’s a child with a disability’.
The evidence of the independent OT, Ms Connie Tse, was also consistent with the view that the fence and gate would constitute a restrictive practice: ‘The requested support is an environmental restraint in accordance with the Rules’. Noting the two instances of absconding, she said that the requested support would:
appear to be appropriate to maintain the physical safety of the Applicant and reduce the risk of unsafe community participation in light of his significant cognitive impairment and associated limited awareness of safety and poor judgment skills.
Having considered all the evidence provided to the Tribunal, I find that the Applicant’s requested support of a fence and locked gate is in response to an issue of concern, the Applicant’s absconding.

SUMMARY OF FINDINGS

(1)that the Applicant’s anticipated increased opportunity for socialisation and greater freedom than currently enjoyed is not relevant to deciding whether the fence and gate constitute a restrictive practice;
(2)that the cases referenced by the Applicant confirm that the law regards a restrictive practice as one which restricts or limits the independence of the person;
(3)that the proposed gate and fence will restrict the Applicant’s access to all parts of his environment;
(4)that the proposed fence and gate are not intended to child-proof the property because no evidence was led that such a support was sought merely because of the Applicant’s age; and
(5)that the requested support of a fence and locked gate is in response to an issue of concern, the Applicant’s absconding.

CONCLUSION

The requested support, while enhancing the Applicant’s freedom of movement within the family property, is also intended to restrict his freedom of movement outside the family property. This is not because the Applicant is a child or young person, in which case the Applicant’s parents could install it privately. In this case, the Applicant’s parents seek funding for the fence as a means of addressing their issue of concern namely, that based on his absconding history he might abscond again, with potentially serious consequences for his safety.

The Tribunal concludes that the requested support of a fence and locked gate is an environmental restraint and therefore a RRP within the meaning of section 9 of the Act.

Issue 2: The Provision of a fence and locked gate is a reasonable and necessary support under subsection 34(1) of the Act

Since the provision of a fence and locked gate constitutes a RRP, the Tribunal must now decide at what point it is appropriate to consider whether the requested support is reasonable and necessary.
Subsection 34(1) of the Act identifies the criteria which must be satisfied by the CEO (of the NDIA) for ‘the reasonable and necessary supports that will be funded’.
NDIA Rule 5.3(a) identifies supports that will not be funded or provided as those which would be contrary to:
(i) a law of the Commonwealth; or
(ii) a law of the State or Territory in which the support would be provided.
The Respondent has contended that a RRP is subject, inter alia, to Rule 9 of the Restrictive Practices Rules. This rule requires that a registered NDIS provider must seek the authorisation of the relevant state or territory for the use of a RRP, in this case Victoria, under the Disability Act 2006 (Vic).
The Respondent has also contended that section 132ZQ of the Disability Act 2006 (Vic) provides that a registered NDIS provider must not use a RRP on an NDIS participant unless an authorisation under subsection 132ZR(1) for the use of the RRP is in force.
While the use of restrictive practices such as the fence and locked gate by the family of the participant is not regulated by the Act, their use by support workers provided by registered NDIS providers is so regulated.
The Applicant proposed in his SOFIC that the funding is only for the installation of the fence, and that installation triggers neither subsection 7(2) of the Provider Rules nor section 9 of the Restrictive Practice Rules requiring registration and approval under the Disability Act 2006 (Vic). Since the installation of any support is for the purposes of its use, in this case, a fence and locked gate which are both inherently restrictive and intended to be used as restrictive, the Tribunal finds this to be a spurious argument.
The Applicant continued to then consider both the installers and the users of the fence, being the parents and the ‘relevant carers’, should the Tribunal not have accepted this distinction between installation and use. At paragraph 73 of his SOFIC, the Applicant includes the parents among those who must go through a ‘rigorous approval process’ but since they have been explicitly excluded by the Respondent, I do not propose to deal further with the obligations on parents.
Both the Applicant and Respondent reflect on the requirements that installers of restrictive practices be registered NDIS providers. At paragraphs 51 and 52 of their SOFIC, the Respondent has contended that:
a person must be registered under section 73E of the Act to provide a class of supports if…there is…an interim or ongoing need to use a regulated restrictive practice… There appear to be at least two categories of persons, other than the Applicant’s parents, who would need to be registered under s 73E of the Act (if not already registered), being:
(a)The person(s) who install the fence…
At paragraph 58 of his SOFIC, the Applicant disagrees that the fence installer would be captured by subsection 7(2) of the Provider Rules:
the role of the gate and fence installer(s) will presumably be limited only to installation. It is not clear that the installation process ‘is likely to be, an interim or ongoing need to use a regulated restrictive practice in relation to the participant’ per [subsection] 7(2) of the Provider Rules. It is unclear whether [the Applicant] would even be present during the installation process, and the gate may or may not be open or closed during installation.
The Respondent, during submissions, also observed that ‘if the support is being provided by the NDIS, the installer must be registered’. The Tribunal notes that this is consistent with the NDIS Quality and Safeguards Commission’s Restrictive Practices Guidelines for Children and Young People. These explain:
services that are not paid for by the child or young person’s NDIS plan do not need to report to us. The Rules do not apply to them.
Since the point of this request for support is to have the NDIS fund the fence and locked gate, it can be inferred from the Guidelines that in this case, the Rules would apply.
For completion, at paragraph 49 of their SOFIC, the Respondent has noted that the Provider Rules which identify potential ‘classes of supports’ that are to be registered include home modifications. In closing submissions, the Respondent noted that the Restrictive Practices regime ‘could’ require registration of providers. This latter qualification of the Respondent’s prior assertion that the provider ‘must’ be registered is consistent with the Applicant’s concerns about the practicality of registering a fencing installer.
Even having considered the evidence, particularly of the Applicant family’s vigilant protectiveness, the Tribunal finds that the installer of the fence and locked gate would be captured by subsection 7(2) of the Provider Rules. This rule no doubt reflects the seriousness the Commission attaches to every aspect of a restrictive practice despite the very reasonable observation of the Applicant that the child need not even be present during the installation process. The Tribunal notes that an authorisation process would be able to explore this in greater detail.
The Respondent also addresses the requirement for the Applicant’s support workers to be registered NDIS providers under section 73E of the Act. The Applicant, at paragraph 60 of his SOFIC, agrees that his parents and relevant carers ‘use’ the fence and gate:
presumably by closing and or locking the gate as a “support” in relation to caring for [the Applicant]’s needs and achieving [the Applicant]’s NDIS plan goals.
In evidence before the Tribunal, the Applicant’s mother, when asked about the role carers would play in using the fence and locked gate, had clearly expected that carers would use it:
A remote would be locked in my husband’s office but could also be in a locked box for carers to access to unlock the gate.
Since the Tribunal has already found that the fence and gate, while assisting the Applicant to be safe and achieve his plan goals, are to be used as a restrictive practice, the Tribunal finds that the evidence of both parties supports the conclusion that the Restrictive Practices Rules will apply to support workers who must consequently also comply with the provisions of the Disability Act 2006 (Vic).
CONCLUSION
The Tribunal concludes that both the installer and the Applicant’s registered carers are required to comply with the NDIS rules applying to restrictive practices.

Issue 2: The proposed support’s compliance with subsection 34(1) of the Act for reasonable and necessary support

Before turning to subsection 34(1) of the Act and as outlined at [29] in this decision, the Tribunal needs to consider how the Victorian legislative requirement that the support be authorised by the Victorian authorities impacts on the sequencing of the decision to be made by the Tribunal regarding the requested support as ‘reasonable and necessary’.
The Applicant has contended that the proposed support is not a restrictive practice and is a reasonable and necessary support. The Applicant’s Counsel forensically applied subsection 34(1) of the Act and concluded that the criteria had been met. The Applicant did not make submissions about the order in which the Tribunal should proceed if the requested support is found by the Tribunal to be a restrictive practice, nor the Applicant’s efforts to establish a behaviour support plan.
The Respondent’s submissions addressed the sequencing considerations explicitly. At paragraph 60 of their SOFIC, the Respondent ‘understands that the authorisation process (under the Disability Act) has not been undertaken by any registered NDIS providers in relation to the requested support’. (The Applicant made the same observation). As a result, Rule 9 of the RRP Rules cannot be complied with by the Applicant.
The Respondent also contends at paragraph 60 of their SOFIC that the interim behaviour support plan of Ms Charalambous does not appear to meet the requirements of a behaviour support plan under Rule 21 of the RRP Rules. The Respondent devoted considerable attention to testing Ms Charalambous on the development of the Applicant’s behaviour support plan and there is no doubt, according to both her evidence and that of the independent OT, Ms Connie Tse, that the behaviour support plan is still a work in progress. The Applicant’s mother likened it to the ‘length of a piece of string’. The Tribunal accepts that the constraints imposed by Covid restrictions and, as Ms Charalambous said, the Applicant’s difficulty in trusting support workers and professionals such as herself, have contributed to the limited collection of sufficient data on which to base a behaviour support plan. Ms Tse observed that the Applicant’s poor cognition was another inhibiting factor.
For the purpose of determining the Tribunal’s further considerations in this decision, it considers the status of the current efforts to determine a behaviour support plan to be irrelevant at this stage, when the authorisation of the practice has not yet been undertaken by the Victorian authorities. The Respondent argued at paragraph 61 of their SOFIC:
if the use of the restrictive practice is not authorised in Victoria, it becomes a prohibited practice. Where the use of a restrictive practice is a [sic] prohibited at State level, the NDIS provider’s registration is contingent upon the condition that the provider must not use that restrictive practice.
Further, again as the Respondent submitted at paragraph 63, Rule 5.3(a) of the Supports for Participants Rules prevents the Respondent from funding or providing a support contrary to ‘a law of the Commonwealth, or of the State or Territory in which the support would be provided’. The Applicant made no submissions on this point.
Despite the Respondent’s confident assertion that on the evidence, the requested support would not be authorised by the Victorian authorities, the Tribunal considers that the Victorian authorities may still come to a different conclusion, given the circumstances of the Applicant and his family, and should be allowed to consider the issues afresh, in particular, whether the requested support complies with subsection 132ZR(1) of the Disability Act 2006 (Vic), which sets out the authorisation process.
The authorisation process provides, as the Respondent has outlined at paragraph 38 of their SOFIC, that an authorised program officer (‘APO’) in Victoria may authorise the use of a RRP if satisfied that it is, among other things, ‘included in the NDIS participant’s NDIS behaviour support plan and is in accordance with the requirements of the Rules’.
The Tribunal does not consider it necessary to determine here whether the proposed fence and locked gate are included in the Participant’s plan, or even whether the current draft plan is sufficiently developed to be considered a behaviour support plan, or whether it is in accordance with the Rules. These are determinations the APO in Victoria must make, once appointed by the registered NDIS provider and approved by the (Victorian) Senior Practitioner, as authorisations reside with that state. Despite the lengths to which the Respondent went to explore the inadequacy of the Applicant’s plan, it was never suggested that the Tribunal should determine this for the Victorian authorities.
The Tribunal also acknowledges that the NDIS Commissioner is responsible for determining the suitability of a person to undertake behaviour support assessments and develop behaviour support plans which may contain the use of restrictive practices, but considers that it does not require the Tribunal to determine the status of the Applicant’s plan when that is exactly what the APO is required to do as part of the authorisation process.
Further, the Tribunal finds that until the authorisation process has been undertaken, there is no need to consider whether the requested support is reasonable and necessary under subsection 34(1) of the Act. Indeed, to do so in the absence of such authorisation would be in contravention of Rule 5.3(a).
Until (and if) authorisation of the Applicant’s requested supports has been provided by the Victorian authorities as required under section 8 of the Rules, the Tribunal is not in a position to consider whether the requested supports are reasonable and necessary since, until authorisation, they are prohibited from being funded.

DECISION

The Tribunal affirms the Respondent’s decision under review.
I certify that the preceding 118
(one hundred and eighteen)
paragraphs are a true copy of
the reasons for the decision
herein of the Honourable
Pru Goward AO, Senior Member

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

Associate

Dated: 30 January 2023

Date(s) of hearing: 22 and 23 November 2022

Applicant: DFFG

Counsel for the Applicant: Mr Robbert Roos, Victoria Legal Aid

Counsel for the Respondent: Mr Pietro Nacion, Sparke Helmore