DFFG and National Disability Insurance Agency

This matter concerned an application by a 12-year-old boy with autism spectrum disorder and other diagnoses, and his parents, against the National Disability Insurance Agency (NDIA). The dispute centred on whether the installation of locks on the front doors of the family home constituted a "reasonable and necessary" support under the NDIS Act. The applicant's parents sought this measure due to the applicant's history of absconding and the perceived risk of future incidents, which they believed placed him in danger. The NDIA contended that the proposed locks constituted a regulated restrictive practice, specifically an environmental restraint, and therefore required authorisation under Victorian legislation before it could be considered for NDIS funding. The case was heard by Senior Member Pru Goward AO of the Administrative Appeals Tribunal.

The Tribunal was required to determine two primary legal issues. Firstly, whether the proposed installation of locks on the front doors constituted a regulated restrictive practice under the relevant legislation. Secondly, if it was found to be a regulated restrictive practice, the Tribunal needed to consider the implications of the Victorian authorisation process under the Disability Act 2006 (Vic) on the NDIS's assessment of whether the support was "reasonable and necessary" under section 34 of the NDIS Act. The applicant argued that the locks were not a restrictive practice and met the criteria for reasonable and necessary supports, while the NDIA maintained that it was a restrictive practice subject to state-level authorisation.

The Tribunal reasoned that the proposed locks, being permanent and imposed in response to the applicant's behaviour of concern (absconding), were indeed a restrictive practice, specifically an environmental restraint. This conclusion was informed by case law that defined restrictive practices as those limiting a person's independence. The Tribunal noted that while the locks would assist the applicant in achieving his goals and enhancing his safety, their nature as a restrictive practice meant they were subject to the authorisation process under the Disability Act 2006 (Vic). The Tribunal found that the NDIA's contention that authorisation under Victorian law was a prerequisite for the NDIS to consider the support as reasonable and necessary was valid.

Consequently, the Tribunal concluded that both the installer of the locks and the applicant's registered carers were required to comply with the NDIS rules pertaining to restrictive practices, which included adherence to the provisions of the Disability Act 2006 (Vic). The Tribunal acknowledged that the authorisation process under the Victorian Act had not yet been undertaken, and that if the use of the restrictive practice was not authorised in Victoria, it would become a prohibited practice. Therefore, the Tribunal deferred further consideration of the "reasonable and necessary" criteria under section 34 of the NDIS Act pending the outcome of the Victorian authorisation process.