DRVV and National Disability Insurance Agency (NDIS) - [2025] ARTA 158

DRVV and National Disability Insurance Agency (NDIS) [2025] ARTA 158 (26 February 2025)
Applicant:DRVV
Respondent: National Disability Insurance Agency
Tribunal Number: 2022/3429

Tribunal:General Member J Toohey
Place:Brisbane
Date:26 February 2025
Decision:1. The decision under review, being the decision of the National Disability Insurance Agency:
(a)made on 22 April 2022 under section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth);
(b)as remade on 24 January 2025 following remittal by the Tribunal under section 85 of the Administrative Review Tribunal Act 2024 (Cth);

is set aside under section 105 of the Administrative Review Tribunal Act 2024 (Cth) and remitted for reconsideration with the directions that the statement of participant supports includes:
(a)sufficient funding to meet the maintenance expenses for the Applicant’s assistance animal, with effect from 15 March 2022;
(b)sufficient funding for vehicle window tinting with effect from 15 March 2022;
(c)a reassessment date of 24 months after implementation of the new plan following this decision.
2. The remaining aspects of the statement of participant supports, including plan management, remain unchanged.

.................................[SGD]...................................
General Member Justin Toohey

Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – Reasonable and Necessary Supports –Getting the NDIS Back on Track Amendments – Transitional Rules – Psychosocial Disability – Eligible Assistance Animal Definition – Training Requirement – Plan Management and Duration – Standard Household Items – Smart watch – Replacement Support Determination – Window Tinting – Hobby Business Assistance – Meal Preparation and Delivery – Removalist Service – Evidence Needed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024
National Disability Insurance Scheme (Plan Management) Rules 2013
Cases
Browne v Dunn (1893) 6 R 67
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
James and National Disability Insurance Agency [2023] AATA 2991
Kioa v West (1985) 159 CLR 550
Pavlakis and National Disability Insurance Agency [2023] AATA 2485
Warwick v National Disability Insurance Agency [2024] FCA 616
Secondary Materials
NDIS Operational Guideline: Assistance animals including dog guides, published 20 June 2022
NDIS Operational Guideline: Changing your plan, published 22 September 2024
NDIS Operational Guideline: Creating your plan, published 3 October 2024
NDIS Operational Guideline: Home modifications, published 13 November 2024
NDIS Operational Guideline: Vehicle modifications and driving support, published 12 April 2023
NDIS Operational Guideline: Work and study, published 12 November 2024
Statement of Reasons
SUMMARY

The Tribunal has decided to set aside and remit the decision of Agency with directions that the Applicant’s statement of participant supports includes:
(a)sufficient funding to meet the maintenance expenses for the Applicant’s assistance animal, with effect from 15 March 2022;
(b)sufficient funding for…

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 DRVV and National Disability Insurance Agency (NDIS)

Details

AGLC: DRVV and National Disability Insurance Agency (NDIS) [2025] ARTA 158
Case: [2025] ARTA 158
Decision Date: 26 February 2025

CaseChat Overview and Summary

In the matter of DRVV and the National Disability Insurance Agency (NDIS), the Administrative Appeals Tribunal (AAT) was tasked with reviewing a decision made by the NDIS regarding the reassessment date and management of funding for the participant's support plan. The applicant, DRVV, sought a reassessment date two years after the commencement of the Support Plan Statement (SPS) with the funding to be plan managed, as opposed to the Agency's preference for a 12-month reassessment period. The applicant argued that a longer duration would minimise stress and anxiety associated with engaging with the Agency during the reassessment process, a contention supported by the opinions of the applicant's psychologist and occupational therapist. The Agency, on the other hand, relied on its operational guidelines, which suggested a reassessment date of up to 12 months due to the ongoing updates to their computer systems.

The legal issues before the Tribunal involved interpreting sections 33(2)(c) and (d) of the NDIS Act, which mandate that an SPS must specify the reassessment date and the management of funding for supports under the plan. The Tribunal needed to determine whether the applicant's preference for a two-year reassessment period aligned with the statutory requirements and the participant's goals and aspirations. Furthermore, the Tribunal had to assess whether the Agency's operational guideline, advocating for a 12-month reassessment period, was consistent with the statutory objectives and the individual needs of the participant.

The Tribunal found that the new section 33(5)(g) only applied to the acquittal of NDIS amounts received after the commencement of the Back on Track Amendments. However, there were no submissions regarding the acquittal of such NDIS amounts, and the Tribunal did not have sufficient information to make any findings in this regard. The Tribunal acknowledged that the Agency's operational guidelines should be applied unless there was a good reason not to, but it found that the guidelines were not consistent with other policy statements made by the Agency. The Tribunal ultimately decided in favour of the applicant, setting a reassessment date two years after the commencement of the SPS, based on the applicant's goals, aspirations, and the expert opinions supporting the need for a longer reassessment period to mitigate the applicant's anxiety and mental health issues.

The Tribunal ordered that the reassessment date for DRVV's SPS be set at two years after the commencement of the SPS, with the funding to be plan managed. This decision aimed to balance the statutory requirements with the individual needs and goals of the participant, ensuring that the reassessment process did not exacerbate the participant's mental health issues. The Tribunal's decision was grounded in the statutory objectives of the NDIS Act, which emphasise the importance of supporting the independence and social and economic participation of people with disability, while also considering the financial sustainability of the scheme.

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 NDIS Operational Guidelines also assist in making decisions in accordance with the NDIS Act. Operational guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[14] I will refer to these guidelines where relevant below. [14] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.SUMMARY OF EVIDENCE The Tribunal was provided with a joint hearing bundle by the parties, and this was accepted into evidence at the hearing.[15] This large bundle of documents (1250 pages) included:[15] The document numbering in the hearing bundle index is adopted throughout these reasons. (a)The ‘T-documents’;[16] (b)Several letters and reports from SB, the Applicant’s psychologist, dated from September 2020 to April 2024;(c)Letters and reports from occupational therapists including:(i)NS in November 2022; and (ii)LB, dated from November 2023 to April 2024;(d)The Applicant’s previous plans from November 2018 onwards. (e)Various training logs, veterinary declarations, photos and assistance animal identification records related to R. [16] Which are all the records that the Agency considered when making the decision under review as required by section 37 of the AAT Act. The Tribunal also had the benefit of receiving written submissions from the parties and oral evidence from the Applicant, the Applicant’s mother (AM), the Applicant’s treating psychologist (SB), and an independent occupational therapist (LB). During the hearing the Tribunal also accepted three additional exhibits, being a written statement from the Applicant dated 24 October 2024, a quote for the BBQ, and a removalist invoice. CONSIDERATIONApplicant’s goals Section 33(5)(a) of the NDIS Act says that, in deciding whether or not to approve a statement of participant supports, decision-makers must have regard to the participant’s statement of goals and aspirations. A copy of the Applicant’s most recent plan records the Applicant’s goals as being:(a)I would like to improve my daily eating routine and overall health and wellbeing.(b)In this plan period, I would like to increase my independence with my daily living tasks, accessing the community and participating in leisure and recreational activities of my choice.(c)I would like to find suitable accommodation so I am able to live independently and safely with my dog while having space for running my business from home.(d)In this plan period, I would like to learn and build strategies to develop my communication, financial and business skills so I that can successfully run my hobby business as well as manage my everyday finances. I have had regard to these goals and aspiration and will refer to them where relevant below. Issue (a): plan duration and management Sections 33(2)(c) and (d) of the NDIS Act require that a SPS must specify the date by which, or the circumstances in which, the Agency must reassess the plan, and the management of the funding for supports under the plan. The Applicant seeks a reassessment date two-years after the commencement of the SPS with the funding to be plan managed.[17] [17] Applicant’s Final Submissions 6 January 2025.Duration

Decision

Reasons for decision

Therefore, the new section 33(5)(g) only applies to the acquittal of NDIS amounts received after the commencement of the Back on Track Amendments. The parties did not make any submissions about the acquittal of such NDIS amounts. At this point in time, I do not have sufficient information to make any finding in relation the acquittal of NDIS amounts received after 3 October 2024. There are submissions in relation to expenditure under previous plans and I will consider this further in relation to the plan duration below.OVERVIEW OF THE NDIS DECISION-MAKING FRAMEWORK[6][6] I have used a similar overview in other decisions. Chapter 1, Part 2 of the NDIS Act sets the Act objects and principles including, for example, that the NDIS Act is to support the independence and social and economic participation of people with disability,[7] and that decision-makers are to have regard to the need to ensure the financial sustainability of the scheme.[8] [7] Section 3(1)(c).[8] Section 3(3)(b). Chapter 3, Part 2 of the NDIS Act deals with participants and their plans and includes further principles in relation to the preparation, variation, reassessment and replacement of plans. This guidance includes that this planning process should, so far as reasonably practicable, be directed by the participant,[9] and be underpinned by the right of the participant to exercise choice and control over his or her life.[10] [9] Section 31(a). [10] Section 31(g). A participant’s plan must include a statement of the participant’s goals and aspirations[11] as well as a statement of participant supports that includes the reasonable and necessary supports that will be funded by the Agency.[12] In deciding to approve a statement of participant supports, the Agency must have regard to the matters set out in section 33(5), including applying the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Support Rules), and be satisfied that each support meets the criteria in section 34. The criteria in section 34(1) are that:(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements …(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;(f) the support is an NDIS support for the participant.[13][11] Section 33(1).[12] Section 33(2)(b).[13] And, by virtue of the Miscellaneous Transitional Rules, that the support is most appropriately funded or provided through the National Disability Insurance Scheme, and not more appropriately funded or provided through other general systems of service delivery or support services.

Ratio Decidendi

Legal Principle Established

Sections 33(2)(c) and (d) of the NDIS Act require that a SPS must specify the date by which, or the circumstances in which, the Agency must reassess the plan, and the management of the funding for supports under the plan. The Applicant seeks a reassessment date two-years after the commencement of the SPS with the funding to be plan managed.[17] [17] Applicant’s Final Submissions 6 January 2025.Duration The Applicant seeks a longer duration before reassessment to minimise the stress and anxiety of engaging with the Agency in the reassessment process. The Applicant says that the high risk to him is supported by the opinion of SB and LB. The report of SB dated 19 December 2023 refers to a significant deterioration in the Applicant’s mental health as an impact of NDIS plan changes.[18] The report of LB dated 27 November 2023 states that:[DRVV’s] anxiety is crippling and means he will often experience panic, especially when overwhelmed by his sensory world. He has suffered significant suicidal ideations in the past and only had some reprieve when becoming a NDIS participant and able to manage his own plan, receiving relevant supports that were working well to maintain his mental health and provide enough stability that he was able to start a small business. However, with this self management removed, and having to deal with NDIA management and the AAT process, [DRVV] has experienced a severe decline to his mental state and suicidality has returned. He reports his only mitigating factors to be his assistance animals.[19] [18] B26, page 816 of the Joint Hearing Bundle.[19] B23, page 791 of the Joint Hearing Bundle. The Agency submits that: The current Policy of the Agency, in relation to plan duration, is as follows: Everyone has different goals, living situations, and circumstances. So, we’ll work with you to decide how long it will be before we create your next plan. This will be based on your individual situation. We think about how long you want your plan to go for. We’ll try to make the plan length what you want, where we can. We are updating our new computer systems. Until complete these updates, new and reassessed plans completed in our new computer system will generally go for up to 12 months. Once we have updated our new computer system, we may be able to make your plan longer if appropriate. Your plan will say when we must do a plan reassessment, if we haven’t reassessed your plan before this. We call this the ‘NDIS plan reassessment date’. It is accepted that this is Policy, and not binding on the Tribunal. However, government policy should be applied by the Tribunal unless there is good reason not to do so.The primary reason for the implementation of a 12 month plan for all participants is a practical one. The Respondent’s updated systems will mean that a reassessment of the SOPS under the plan is likely at 12 months anyway.[20] [20] Respondent’s Outline of Submissions 22 November 2024, paragraphs 39 to and 41. The quote above is from the NDIS Operational Guideline: Creating your plan published 03 October 2024, page 25. I acknowledge that this is a current guideline, which should be applied unless there is good reason not to. This guidance is not consistent with other policy statements made by the Agency. The NDIS Operational Guideline: Changing your plan published on 22 September 2024 says:Change the reassessment date of your plan How far in advance a reassessment date is set in a plan isn’t the same for everyone. Your reassessment date will be specific to you and your situation. In some situations, we can change your reassessment date to a later date or an earlier date if we need to. We’ll talk with you and work with you if we need to make these types of changes. For example, if your plan is working for you, we may change the reassessment date to a later date. We call this a plan continuation. We won’t change your reassessment date if there are concerns about how your plan is working for you. Or, you haven’t been using the funds in your plan. In this situation we’ll check-in with you. If we change the reassessment date in your plan, we may need to make other variations to the statement of participant supports in your plan.Case example Fatima is a 27-year-old participant who lives with a mild intellectual disability. She speaks Arabic and uses an interpreter. At Fatima’s last check-in, she and her planner discussed that her current plan was working well for her. At the time, Fatima requested that her current NDIS supports continue for the next 12 months. No changes were made during her check-in as her plan was near its reassessment date. When developing Fatima’s next plan, her planner suggests they continue her current plan for 3 years. Fatima’s planner can see that she has found providers she is working well with, and she is working towards her goals. Her current supports have been working well over the past 12 months and are likely to continue to meet her support needs. At the plan meeting, Fatima and her planner discuss continuing her plan. Fatima would like to continue with her current supports. Fatima’s planner approves a variation to her reassessment date. Fatima’s plan will continue with the same supports for the next 3 years. Fatima’s planner also tells her that if her situation changes, she can contact the NDIS.[21] [21] NDIS Operational Guideline: Changing your plan published on 22 September 2024, pages 5 and 6.