Donohue and National Disability Insurance Agency
[2023] AATA 3071
•27 September 2023
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 be the appropriate funding source for additional disability-related costs such as a Logic Keyboard for Braille.
Mr Donohue resides independently. His NDIS plan profile indicates that he has a support worker and contact with family, friends, and neighbours, while maintaining interests in advocacy with several groups concerned with disability support and vision impairment.
At the hearing, which was held by video, the Tribunal heard oral evidence from Mr Donohue and an assistive technology specialist, Ms Grant. Mr Donohue was self-represented with assistance from his advocate Ms Hogan. Ms Baggett represented the Agency. The sole issue for determination by the Tribunal was whether funding for a laptop, by this time a Surface Pro 9, is a reasonable and necessary support in accordance with the requirements of the National Disability Insurance Scheme Act 2013 (Cth) (“the NDIS Act”).
LEGISLATION
The NDIS is established by the NDIS Act, and the Agency administers the NDIS.
The objects of the NDIS Act are set out in s 3 and make particular reference to the purpose of providing reasonable and necessary supports for participants in the NDIS. Section 4 of the NDIS Act sets out general principles to guide decisions and actions taken under the NDIS Act. In giving effect to the objects, regard must be given to, amongst other things, “the need to ensure the financial sustainability” of the Scheme and “the provision of services by other agencies, Departments or organizations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.”[3]
[3] National Disability Insurance Scheme Act 2013 (Cth) ss 3(3)(b) & (d).
The decision of the CEO by way of approval of a plan under s 33(2) of the NDIS Act is a reviewable decision[4], and thus reviewable by the Tribunal in accordance with s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).
[4] Ibid s 99.
Not every support that a participant requests will be provided or funded through the NDIS. Before specifying in a statement of participant supports the reasonable and necessary supports that will be funded, the CEO of the Agency must be satisfied of all of the criteria in s 34(1) of the NDIS Act in relation to each support. Section 34(1) of the NDIS Act provides that, for the purposes of specifying in the statement of participant supports the reasonable and necessary supports that will be funded under the scheme, the CEO must be satisfied that:
(a) the support will assist the participant to pursue the goals, objectives and aspirations 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 is reasonable to expect families, carers, informal networks and the community to provide;
(f) 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:
(i)as part of a universal service obligation; or
(ii)in accordance with the reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Section 34(1) of the NDIS Act is one of the many provisions in the legislation which governs the NDIS. The legislation is comprehensive. Section 34(1) of the NDIS Act must be interpreted in the context of the entirety of the legislation. The objects and principles of the Scheme, which are set out expressly in the NDIS Act, apply to the interpretation of s 34(1) of the NDIS Act and that section must be interpreted in conformity with those principles and objects. Specifically in relation to the NDIS Act, the Federal Court (Flick, Mortimer and Banks-Smith JJ) in National Disability Insurance Agency v WRMF (“WRMF”) noted:
“In dealing with legislation such as the Act, a number of particular considerations should be remembered. First, the subject matter of the NDIS legislation is unique, as is its structure: it embeds an approach to the support of persons with disability which was previously non-existent. In its structure, it does more than ‘ordinary’ legislation by incorporating objects and purposes. It incorporates a number of values, which are integral to the legislative scheme.” [5]
[5] [2020] FCAFC 79 at [138].
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (“NDIS Support Rules”) deal with the assessment and determination of “reasonable and necessary supports” that will be funded under the NDIS. The Support Rules form part of the legislation.
In McGarrigle v National Disability Insurance Agency, the term “support” is described by the Federal Court, per Mortimer J, as “a practical description of the means by which a person with disability is assisted.”[6]
[6] [2017] FCA 308 at [88].
NDIS PLAN
Mr Donohue’s NDIS plan,[7] which commenced on 13 August 2022 with a plan review date on 11 August 2025, included funding for core supports including assistance with daily tasks, funding for a support worker for community and social access, a contribution towards transport related costs, together with funding for capacity building supports which include funds for supports to increase his strength and physical capacity and ability to mobilise in the community. The capital supports component in the plan included assistive technology funding for a Mantis Q 40 portable text to Braille keypad typically priced at $4,045 subject to advice from a regulated assessor and a quote. The funding for all supports is self-managed.
[7] Exhibit 1, T-Documents, T7.
The first of Mr Donohue’s short-term goals in the plan commencing 13 August 2022 provided for access to “assessments, assistive technology, therapies and supports for improved health and well-being, employment opportunities and social participation.”[8] The identical short-term goal was included in his two previous NDIS plans.[9]
[8] As above.
[9] Exhibit 1, T-Documents, T6; T5.
After a remittal order which the Tribunal made pursuant to s 42D of the AAT Act, the Agency formulated a new NDIS plan covering a period of six months from 1 June 2023. The goals in that plan are identical to those from the previous plans. The core support budget included funds of $2,000 which could be used to purchase a Logitech Braille keyboard.
ISSUES AND CONTENTIONS
The unresolved issue was funding for the laptop, updated from a Surface Pro 8 to a Surface Pro 9.
An invoice from JB Hi-Fi confirmed that the total cost of the Surface Pro 9 i7 512 GB 16 GB and the Surface Pro signature keyboard is $3,258.95.[10]
[10] Exhibit 3, JB Hi-Fi Invoice.
The issue for the Tribunal to determine is whether Mr Donohue’s request for the Surface Pro 9 laptop, inclusive of the keyboard, is a reasonable and necessary support within the meaning of s 34 of the NDIS act and the NDIS Support Rules.
The reasons put forward in Mr Donohue’s application to the Tribunal to review the NDIA decision included:[11]
“I am a totally Blind University student studying an Undergraduate Degree in international relations and politics. I am required due to my disability to use Assistive Technology in order for me to complete the Undergraduate Degree in international relations and politics at University. As I am totally Blind, I use Screen Reading Access Software to use the computer without sighted assistance. Some of the requirements for JAWS to run are at least 16 Gigabytes of Ram, on board graphics, with well-Branded Sound Card with a large amount of internal storage. I obtained a Recommendation Assistive Technology Supporting Letter from Guide Dogs Queensland in July/August 2022 for a Surface Pro Laptop 8 generation and a Braille Keyboard for the aid of myself locating the keys on the keyboard to type.”
[11] Exhibit 1, T-Documents, T1.
In his written application, Mr Donohue referred to a request that he made for State government funding for the required assistive technology. That request was unsuccessful. He referred to a request to a tertiary education provider for assistance which was also unsuccessful. As State government programs and the tertiary education system would not fund assistive technology devices for blind students, on his submission, the Agency should provide the funding as a reasonable and necessary support.
The Agency did not accept that the Surface Pro 9 is a reasonable and necessary support. In its written statement of facts, issues and contentions, the Agency framed the issue in terms of whether the requested support is related to Mr Donohue’s disability (NDIS Support Rule 5.1 (b)), whether it is related to day-to-day living costs that are not attributable to disability support needs (NDIS Support Rule 5.1 (d)), and whether it is value for money under s 34(1)(c) of the NDIS Act.
The submission referred to the AT Guideline which provides that the NDIS does not fund the purchase or renting of a tablet or a computer to run computer-based assistive technology. An exception only exists where the device itself is required in relation to the disability.
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.
In her first letter, Ms Grant confirmed that Mr Donohue has total vision loss. He has a diagnosis of glaucoma since childhood. His vision will not improve. He has no functional vision which means that he has extreme difficulty with reading printed and electronic material, communicating with people, and arranging numerous, various appointments. His preferred method of communication is by audio and Braille. Ms Grant confirmed that Mr Donohue has “strong ability to engage with tactile feedback”.[17] As he is unable to read printed material, he requires adaptation using Braille and audio feedback through a screen reader. In addition, he is unable to operate his technology independently without using Braille or appropriate screen reading.
[17] Exhibit 1, T-Documents, T3.
Ms Grant summarised the features of the support through use of Surface Pro with the Braille keyboard which included: –
providing audio feedback of scanned printed material through OCR (Optical Character Recognition). This will be used in conjunction with Braille feedback and audio;
providing feedback for information in multiple formats which include accessing documents, books, emails, and webpages;
enabling access to audiobooks and printed material; the Surface Pro will be equipped with JAWS (already in Mr Donohue’s possession) and connected to his Braille display; and
Mr Donohue’s current Braille device requires connection to a PC to function, hence the Surface Pro 8 will facilitate access to, for example, tele-health, calendar management and printed material.
Ms Grant acknowledged that Mr Donohue has an iPhone which has the required accessibility features which include a screen reader and voice control. However, she added: – “while the iPhone has been equipped with accessibility features, it is not appropriate to be able to use for his identified goals.”[18] She understood that he did not have access to a windows laptop.
[18] As above.
In her second letter, Ms Grant commented on the features of disability related software, also referred to as accessibility software. She noted: –
“JAWS is a screen reader available only on Windows systems. The software is designed to provide portable accessibility through the provision of synthetic speech.
The software is controlled by the user through a series of Windows-based and JAWS specific keystrokes to control the focus and reading of the program.
JAWS 2023 will require configurations to also operate through the Braille interface of Mr Donohue’s device – previously provided by NDIS.” [19]
[19] Exhibit 2, Amended Letter of Support of Zoe Grant, Assistive Technology Specialist.
Ms Grant confirmed in that letter that the Surface Pro 9, in her opinion, is the most appropriate option to meet the requirements which Mr Donohue specified. However, it is not the only option. A windows based system, or other systems, could suffice. In her second letter, Ms Grant summarised features of a windows laptop with JAWS accessibility software. She noted that: – “a windows laptop that supports the use of a rear facing camera can provide the accessibility required for Mr Donohue to engage with his daily tasks.” Ms Grant considered that this laptop would be heavier than a Surface Pro and could cause “… a higher risk of harm and bodily strain as he is required to transport items for extended periods of time.”
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].
Part 1 of the NDIS Support Rules refers to the objects for the NDIS, which will have particular relevance to the rules about supports for participants. They include objects in s 3 of the NDIS Act about supporting the independence, social and economic participation of people with disability, providing reasonable and necessary supports and enabling choice and control in setting goals and planning and delivery of funded supports. Part 1 of the NDIS Support Rules also sets out principles for the NDIS, which are particularly relevant to these particular rules. They are in s 4 of the NDIS Act and include, relevantly:
(1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
(2) People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.
(3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
…
(11) Reasonable and necessary supports for people with disability should:
(a)support people with disability to pursue their goals and maximise their independence; and
(b)support people with disability to live independently and to be included in the community as fully participating citizens; and
(c)develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
…..
(14) People with disability should be supported to receive supports outside the National Disability Insurance Scheme and be assisted to coordinate those supports with the supports provided under the National disability insurance scheme
(15) in exercising their right to choice and control, people with disability require access to a diverse and sustainable market for disability supports in which innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of those supports is promoted
Counsel for the Agency contended that the requested support for a Surface Pro 9 is not a reasonable and necessary support as it falls within NDIS Support Rules 5.1(b) and (d) because it is not related to Mr Donohue’s disability, and it is a day to day living cost which is not attributable to his disability support needs
Rule 5.1 of the NDIS Support Rules provides that 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; or
(c) it duplicates other supports delivered under alternative funding through the NDIS; or
(d) it relates to day to day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
A computer is central to the way in which Mr Donohue lives. He has skills in technology which he applies through the use of Braille and audio feedback. Irrespective of the brand of computer or smart device, he needs one because of his disability to enable him to connect to community, overcome limitations in everyday life, maintain independence and engage in communications. Access to the internet is integral to his capacity to go about activities of daily living which would otherwise be severely constrained, if not impossible in many instances, because of the functional impact of his vision impairment. The Tribunal is satisfied that the requested support is related to Mr Donohue’s disability and not required primarily for his tertiary studies. Accordingly, it does not come within the prohibition in NDIS Support Rule 5.1(b) as a support that will not be provided under the NDIS.
The Agency submitted that the Surface Pro 9 is a day to day living cost which is not a support that may be funded or provided under the NDIS pursuant to NDIS Support Rule 5.1(d). The suggestion is that it is an everyday living cost.
The AT Guideline includes information about the Agency’s description of assistive technology, funding criteria, assistive technology assessments and planning processes. The AT Guideline provides information about the Agency’s approach to funding computers and tablets and relevantly the Guideline states: –
“We won’t usually include funding in your plan for you to buy or rent a tablet or a computer to run computer based assistive technology. This is because these items are a day-to-day living cost.
To help us decide if we’ll include the item in your plan, you need to give us evidence that shows you need the device because of your disability. You’ll need to give us this evidence no matter what the device costs.
The evidence needs to be in writing from an assistive technology advisor. It needs to confirm the device is the most appropriate solution for your disability support needs.
After you provide this evidence will include funding for the item in your plan if it meets all the NDIS funding criteria.
If you want to use funds already in your plan to buy a tablet or computer based assistive technology you’ll need to get written advice from an assistive technology advisor. The advice needs to show you need the device because of your disability.” [23]
[23] Exhibit AAT1, page 11.
The link - “if we should fund a smart device or tablet” - in the AT Guideline explains briefly the Agency’s rationale. It states – “smart devices and computers are a general household appliance. Most Australian homes have them and they are used by most of the community. A household appliance that most people are likely to have at home is a day-to-day living cost not funded by the NDIS.” It then proceeds to give a brief case example which suggests that even if a person’s disability means that the person may benefit from use of a smart device or personal computer – “these devices are unlikely to be an extra living cost due solely and directly as a result of… disability needs. Most households have other options such as a mobile phone or a personal computer which would get the same result.” It is not clear whether the proposition that most Australian homes have smart devices and personal computers is based on nationwide statistical data or upon unsurprising assumptions. It is clear, however, that there is no evidence before the Tribunal in confirmation of the proposition.
It is well-established authority that the Tribunal should apply operational guidelines and government policy unless there is good reason not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. The Federal Court (Mortimer J) in G v Minister for Immigration and Border Protection (“G”) commented – “in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant fact, or factor, for the Tribunal to take into account in performing its review task.” [24] The Federal Court in G drew a contrast about policies, or within policies themselves, stating: – “the more general a policy, the more likely it is to invite consideration of the “fullness … of relevant circumstances” and leave an “unaffected range of discretion” for exercise … The more prescriptive and rule-like the policy, the more likely it is to encourage decision-makers to feel compelled to adhere to each part of it, follow its structure with strictness and approach the policy as if it formed part of the statute.” [25]
[24] [2018] FCA 1229 at [204].
[25] Ibid at [200].
The AT Guideline is a source of information about the way in which the Agency assesses criteria for assistive technology. It is written as a guide in language that is informal and not technical. In style and content, it is less like a policy statement and a set of policy principles, and more in the nature of guidance about procedures. It illustrates various applications of those procedures through hypothetical case examples. It provides pointers to processes rather than laying down prescriptive policy positions.
The AT Guideline divides assistive technology into three categories according to cost. They are low-cost assistive technology under $1,500 per item, mid cost assistive technology between $1,500 and $15,000 per item, and high-cost assistive technology over $15,000 per item. There is a requirement for evidence from an independent advisor in support of requests for mid cost and high-cost assistive technology. Mr Donohue’s past and present NDIS plans included funding for low-cost assistive technology in the core supports budget.
The expression in the AT Guideline – “we won’t usually include funding in your plan” – suggests that there may be instances when the Agency will include funding in a participants NDIS plan for a tablet or a computer. Mr Donohue’s living arrangements, which are unique to him, are necessarily defined by the fact of his disability and shaped by the nature of his functional impairment. In McKenzie & National Disability Insurance Agency, the Tribunal noted that: – “the examples given in rule 5.1(d) of rent, groceries and utility fees, suggest regular and ongoing outgoings of the type incurred by all householders.” [26] By way of contrast, a capital expenditure that occurs only several times in a lifetime is not in the nature of a daily living cost. In Mr Donohue’s personal circumstances, the Tribunal considers that the provision or funding of a computer is not excluded as an everyday living cost under NDIS Support Rule 5.1(d)
[26] [2019] AATA 3275; then Senior Member, now Justice Meagher.
In summary, under Support Rules 5.1(a), (b), (c) and (d), the NDIS does not provide or fund a support if the circumstances set out in any one of those sub-rules apply. The Tribunal is satisfied that they do not apply.
The Tribunal will consider the requirements in s 34(1) of the NDIS Act.. The criteria in s 34(1) are cumulative so that if a requested support does not meet all the criteria, it will not be a reasonable and necessary support for the purpose of s 34 of the NDIS Act
Whether the support will assist the participant to pursue the goals, objectives and aspirations in the participant’s statement of goals and aspirations: s 34(1)(a) of the NDIS Act
Mr Donohue’s NDIS plans have two short term goals. The first one is to access assessments, assistive technology, therapies and supports for improved health and well-being, employment opportunities and social participation. In evidence Mr Donohue said that he: – “wouldn’t necessarily call it a short term goal, but I think the way that the NDIA frames their interpretation is a short term goal, but I would probably more call that a goal that’s sort of probably never going to be really ending for me, in terms of a goal. Because I am always going to need some level of technology.” [27] Perhaps consistently with that observation, his medium or long-term goals include support for seeking employment, attending university, and community access through orientation and mobility training.
[27] Transcript of evidence p 9.
The purchase of a Surface Pro 9 would assist Mr Donohue in pursuit of his first short-term goal. In all likelihood, it would assist in relation to each of his plan goals because, as he said in evidence, he has a need to be connected always to technology. The Tribunal is satisfied that the requirement in s 34(1)(a) of the NDIS Act is met.
Whether the support will assist the participant to undertake activities, to facilitate the participant’s social and economic participation: s 34(1)(b) of the NDIS Act
The requested support will facilitate and enhance Mr Donohue’s social participation and activities in the community. This requirement is satisfied.
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: s 34(1)(c) of the NDIS Act
Rule 3.1 of the NDIS Support Rules, provides further guidance as follows:
Value for money
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);
(d) for supports that involve the provision of equipment or modifications:
(i) the comparative cost of purchasing or leasing the equipment or modifications; and
(ii) whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(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).
In her second report, Ms Grant identified three possible alternatives to the Surface Pro 9. She took into account Mr Donohue’s familiarity with windows based technology and his experience using screen reading software and knowledge of windows shortcuts to navigate a windows based computer. The Reveal16i was one of the options. It is a foldable android tablet which Mr Donohue does not have experience with, and it does not have capability for JAWS to run on it which is problematic as JAWS is Mr Donohue’s preferred screen reading software. Those two factors alone seemed to be sufficient to disqualify it as a practical alternative.
The other two options were the Mercury 13 and, alternatively, a windows laptop with JAWS accessibility software. The Mercury 13 is preinstalled software on a windows Surface Pro tablet and its various features would meet all of Mr Donohue’s accessibility requirements, subject to set-up issues which would be required to interface the Braille device with the Mercury 13. Ms Grant quoted a sum of $8,679 as the indicative cost from the supplier to Guide Dogs Queensland.
Ms Grant provided specifications in the second report concerning requirements for the processor speed, memory, hard disk space, video, and sound. She confirmed in evidence that a windows based system can support those requirements and provides the best option to meet and support Mr Donohue’s needs.
In evidence, Ms Grant confirmed a broad range of options within the category of windows laptops, meaning a broad category that is not confined to one specific brand. Using $1,300 as a price point, Ms Grant confirmed that some of the appropriate windows laptops, subject to confirmation of capacity to run particular software, would cost less than $1,300. She confirmed that “quite an ordinary new laptop” would function with JAWS software.[28] The cost of the Surface Pro 9 with keyboard was quoted at $3,258.95[29]
[28] Transcript of evidence p 35.
[29] Exhibit 3, JB Hi-Fi Invoice.
In her second report, Ms Grant confirmed her recommendation for the Surface Pro for Mr Donohue for reasons that included its portability and also the “reduced risk of strain or injury associated with carrying multiple accessibility devices at one time… Having a heavier laptop will cause a higher risk of harm and bodily strain as he is required to transport items for extended periods of time”[30]
[30] Exhibit 2, Amended Letter of Support of Zoe Grant, Assistive Technology Specialist.
Mr Donohue was asked about the factors which led him to consider acquiring a new device and, in particular, the Surface Pro. He explained that he went about the process of seeking an opinion from Guide Dogs Queensland. His current computer is, relatively, quite old. He was making a decision to commence tertiary study and he was concerned about travelling to the university campus. Mr Donohue said:[31]– “I wanted to have a portable device that I could easily pick up, put in a bag, that I could easily move around…” compared with his ASUS laptop which he described as “quite a bulky machine.”
[31] Transcript of evidence p 23.
Mr Donohue attends the University campus only two or three times each month. He attends the campus when there is a need that arises out of the particular course or topic at the time. He usually travels by taxi. He did not express particular concerns about bodily strain carrying heavy items on a regular basis. He was adamant that he does not want to be accompanied by a support worker to university especially if suitable technology can enable him to access transport and maintain his independence. That explanation is entirely reasonable. He described the difficulties of accessing bus timetables and catching buses. He considered that those difficulties were best addressed by using a Surface Pro 9 rather than his iPhone. However, that evidence did not indicate that a Surface Pro 9 would be of any greater assistance to him than a windows laptop with JAWS software
In relation to the factors which should be considered under NDIS Support Rule 3.1, the Tribunal is satisfied that a windows laptop is a support that would be comparable to the Surface Pro 9. The cost of a windows laptop is substantially lower than the cost of the Surface Pro 9. Each device is likely to produce equivalent benefits. In consideration of functionality, the Surface Pro 9 is equipped with a front and rear facing camera. Ms Grant suggested that most of the laptops that she researched are not equipped with two separate cameras, [32] however she did confirm in her second report that the backwards facing camera is available through some models of laptop.
[32] Transcript of evidence p 31.
As the Tribunal has stated, Mr Donohue’s access to assistive technology is critical for him. It is his connection to the world. It occurs presently through the use of his iPhone and the ASUS laptop. Each of those items was purchased privately. They are not funded through the NDIS. The NDIS funding has enabled Mr Donohue to acquire the JAWS software, Logitech Braille keyboard, the Mantisq40 Braille display, the Pearl camera, and the Envision glasses. The question which must be answered is whether or not the Surface Pro 9 represents value for money according to s 34(1)(c) of the NDIS Act and s 3.1 of the NDIS Support Rules.
Plainly, Mr Donohue wants to do all that he can to enhance his independence. However, the evidence does not suggest that the Surface Pro 9 is a support that will substantially improve Mr Donohue’s life stage outcomes and be of long-term benefit to him to any greater degree than a windows laptop with JAWS accessibility software. The windows laptop solution comes at a substantially lower cost. On consideration of all the evidence, the Tribunal is satisfied that a Surface Pro 9 does not represent value for money as a cost of support that is reasonable, “relative to both the benefits achieved and the cost of alternative support” of a windows laptop with JAWS accessibility.
The issue before the Tribunal is whether the Surface Pro 9 is a support which represents value for money. Mr Donohue is not requesting funding for a windows laptop as a lesser alternative if his primary request fails. Provision has been made in Mr Donohue’s previous and current NDIS plans for low-cost assistive technology and all of the funding is self-managed.
The Tribunal is satisfied that the requirement of value for money is not met with regard to the Surface Pro 9.
Whether the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice: s 34(1)(d) of the NDIS Act
The Tribunal is satisfied that the requested support would be effective and beneficial for Mr Donohue.
Whether 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: s 34(1)(e) of the NDIS Act
This criterion is satisfied.
Whether 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 (i) as part of a universal service obligation; or (ii) in accordance with the reasonable adjustments required under a law dealing with discrimination on the basis of disability: s 34(1)(f) of the NDIS Act.
As the requested support for a Surface Pro 9 does not meet the value for money criterion under s 34(1)(c) of the NDIS Act, it follows equally that the Tribunal cannot be satisfied that the request is most appropriately funded through the NDIS. Accordingly, this requirement is not met.
CONCLUSION
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.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson
.............................[sgnd]..................................
Associate
Date of Decision: 27 September 2023 Date of Hearing: 26 June 2023
12 July 2023Representation for the Applicant: Self-represented
Solicitor for the Respondent: Ms E Baggett
Moray & Agnew Lawyers
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