Donohue and National Disability Insurance Agency - [2023] AATA 3071

Donohue and National Disability Insurance Agency [2023] AATA 3071 (27 September 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/8549
Re:Brendon Donohue
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member I Thompson
Date:27 September 2023
Place:Adelaide

The decision under review is affirmed.
............................[Sgnd].................................
Member I Thompson

CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – review of statement of participant supports – reasonable and necessary supports – applicant sought review of statement of participant supports – request for Surface Pro and keyboard – decision affirmed.
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
CASES

G v Minister for Immigration and Border Protection [2018] FCA 1229
McGarrigle v National Disability Insurance Agency [2017] FCA 308
McKenzie & National Disability Insurance Agency [2019] AATA 3275
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
REASONS FOR DECISION
Member I Thompson
27 September 2023

The Applicant, Brendon Donohue, is a participant in the National Disability Insurance Scheme (“NDIS”). He is 30 years old and has total vision loss. His application to the Tribunal concerned funding for a Surface Pro laptop computer.
Mr Donohue had a three year NDIS plan which commenced on 13 August 2022. Mr Donohue submitted a written request to the National Disability Insurance Agency, (“the Agency”) for internal review of capital assistive technology funding.[1] He commented in the request letter that the requested Surface Pro tablet was not for personal or social use, rather it was intended for his tertiary education studies. He referred to his NDIS plan goals which included access to assistive technology to enable him to attend tertiary studies in person or online as required
[1] Exhibit 1, T-Documents, T4.
A delegate of the Agency’s Chief Executive Officer wrote to Mr Donohue on 16 September 2022 with an explanation of the result of the internal review.[2] The result was confirmation of the original decision. The letter described Mr Donohue’s request for the NDIS as a request “to meet your educational and every daily support needs; a Surface Pro 8 i7 512 GB 16 GB$2564.10, a Nero Slim Line Keyboard $3057.10 and a Logic Keyboard Braille – PC $495.”
[2] Exhibit 1, T-Documents, T2.
The Agency’s internal reviewer explained that the Surface Pro 8 and Slim line keyboard are considered to be a day to day living cost not directly related to Mr Donohue’s disability support needs and cannot be funded by the NDIS. The letter also explained that under the NDIS Assistive Technology Operational Guideline (AT Guideline), smart devices and computers are typically considered to be general household appliances. The letter referred to Mr Donohue’s use of an iPhone with certain accessibility features which, it was stated, enables him to access audio books, emails, and optical character recognition. In further explanation, if an NDIS participant already owns a computer then the NDIS may…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Donohue and National Disability Insurance Agency

Details

AGLC: Donohue and National Disability Insurance Agency [2023] AATA 3071
Case: [2023] AATA 3071
Decision Date: 27 September 2023

CaseChat Overview and Summary

This matter concerned an application by Mr Donohue for review of a decision by the National Disability Insurance Agency (NDIA) regarding his statement of participant supports. Mr Donohue sought funding for a Surface Pro 9 laptop and keyboard, which the NDIA had declined. The Administrative Appeals Tribunal was required to determine whether the requested support was reasonable and necessary under the National Disability Insurance Scheme Act 2013 (Cth).

The Tribunal considered the criteria for reasonable and necessary supports as outlined in section 34(1) of the NDIS Act. The key legal issues were whether the Surface Pro 9 met the requirements of being funded or provided by the NDIS, whether it was most appropriately funded or provided through the NDIS, and whether it was a reasonable and necessary support. This involved assessing whether the support would improve the claimant's capacity to participate in the community and whether its cost was justified by the benefits it would provide.

The Tribunal reasoned that while a Windows laptop with screen reader software like JAWS would be beneficial and could be acquired for a comparable or lower cost than the Surface Pro 9, the specific request for the Surface Pro 9 did not satisfy all the criteria for reasonable and necessary supports. Specifically, the Tribunal found that sections 34(1)(c) and 34(1)(f) of the NDIS Act were not met. As all six criteria under section 34(1) must be satisfied for a support to be deemed reasonable and necessary, the Tribunal concluded that the Surface Pro 9 was not most appropriately funded or provided through the NDIS.

Consequently, the Tribunal affirmed the NDIA's decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Agency’s submission accepted that Job Access with Speech software (JAWS) is an effective and beneficial support as a windows based screen reader. The Agency contended that the JAWS software can be run on various devices including a windows laptop, noting that: – “there are a vast number of Windows laptops available which meet the component specifications, including many available at a lower cost than the Surface Pro 9 and within the current AT budget of $1500.” [12][12] Respondent’s Statement of Facts, Issues and contentions.EVIDENCE Mr Donohue gave evidence by video link. He told the Tribunal that he resides alone. He has a support worker on weekends. He is studying politics and international relations at university. He mainly studies online. His attendance on-site at university depends on the course that he is studying, however it is not frequent. In his last course he attended university campus about once a month. On average he attends campus 2 to 3 times each month. Mr Donohue has a computer which he described as being six years old, very rundown and doesn’t really work very well with the speech software and the Braille software. It is an ASUS laptop.[13] He said that he needs a computer which has a significantly higher level of memory (RAM) and storage. He said that he uses a computer from the time he wakes up to the time he goes to sleep as he always needs to be connected to technology. This is necessary to ensure he has access to the same level of information at the same time as a person with vision. He has an iPhone 13 pro which he purchased and he tends to use in preference to the computer. He said that he prefers using his iPhone because it works better than his computer. His iPhone has built-in accessibility features including a screen reader and voice control. He said that there are times when he prefers to access information on a full-size computer compared with accessing it on an iPhone and while the iPhone is beneficial it is not necessarily “the overall be all and end all device.”[14] He had funding in his NDIS plan which enabled him to acquire a PEARL camera and Open Book scanning and reading software. NDIS funding was also used for acquiring the Braille printer software.[13] Transcript of evidence p 17. [14] Transcript of evidence p 10. Ms Zoe Grant is an assistive technology specialist employed by Guide Dogs Queensland since 2021. Following an assessment on 12 July 2022 with Mr Donohue conducted by video, she wrote a letter of recommendation for a Surface Pro with Braille keyboard.[15] Subsequently, Ms Grant provided another letter with details about the Surface Pro and possible alternative devices.[16] She gave evidence by video link at the hearing. In evidence she confirmed that Mr Donohue told her that he was experienced using Windows operating systems, he had access to JAWS and was a Braille user.[15] Exhibit 1, T-Documents, T3.[16] Exhibit 2, Amended Letter of Support of Zoe Grant, Assistive Technology Specialist.

Decision

Reasons for decision

For the reasons which have been set out, the criteria in ss 34 (1)(a), (b), (d) & (e) of the NDIS Act are satisfied. The Tribunal finds that ss 34(1)(c) and 34(1)(f) of the NDIS Act are not satisfied. As all of the six requirements in ss 34(1)(a) – (f) of the NDIS Act must be fulfilled for a support to be reasonable and necessary, it follows that Mr Donohue’s requested support for a Surface Pro9 is not most appropriately funded or provided through the NDIS.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

In evidence, Ms Grant acknowledged that a windows laptop with JAWS accessibility software covers a broad category of laptops from different brands and costing in the vicinity of $1,300 or less, or more if preferred. A windows laptop would function with the JAWS software. The Braille connectivity can run on a windows laptop without requiring additional software or hardware. She confirmed that Mr Donohue’s recent purchase of Envision glasses would be of assistance to him as a mobile option to assist with reading printed material. He also has a PEARL camera which operates as a stationary device running with JAWS software to scan printed material and read it audibly.CONSIDERATION In considering whether funding for the acquisition of the Surface Pro 9 laptop is a reasonable and necessary support, the Tribunal must have regard to the criteria in s 34(1) of the NDIS Act as further elaborated in the NDIS Support Rules.. In McGarrigle, Mortimer J stated with respect to the question of whether a support is reasonable and necessary: “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’.”[20][20] [2017] FCA 308 at [91]. It is helpful to recite a passage from the Full Court of the Federal Court in WRMF:[21]“... there is no doubt that the contextual use of the phrase [‘reasonable and necessary supports’] 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. It is not accidental, in our opinion, that Parliament has chosen the term ‘participant’ to describe individuals who will receive funded support: the choice of that term reinforces, as we have sought to explain, that the driving objective of this Act is the holistic, improved and increased participation by persons with disability in the life of their communities, and in life itself.”[22][21] [2020] FCAFC 79.[22] Ibid at [151].