Dunstan and National Disability Insurance Agency - [2021] AATA 2406

Dunstan and National Disability Insurance Agency [2021] AATA 2406 (16 July 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/5335
Re:Julia Dunstan
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

Decision
Tribunal:Senior Member Damien O'Donovan
Date:16 July 2021
Place:Canberra

The Tribunal sets aside the reviewable decision dated 1 September 2020 on and from 13 July 2021 and in substitution approves the statement of participant supports annexed to this decision.

……………………….[sgd]…………………..
Senior Member Damien O’Donovan
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – jurisdiction – statement of participant supports – whether Tribunal has jurisdiction to review supports not included in original request for review – Tribunal has jurisdiction – whether identified supports should be included in statement of participant supports
Legislation
National Disability Insurance Scheme Act 2013
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (SRC Act)
Cases
BWLK and NDIA [2021] AATA 1731
Canuta and Comcare [2006] HCA 47
Comcare and Abrahams [2006] FCA 1829
Comcare and Burton [1998] 50 ALD 846
Comcare and Muir [2016] FCA 346
Frugtniet and Australian Securities and Investments Commission [2019] HCA 15
Hospital Benefit Fund of Western Australia v Minister for Health, Housing and Community Services [1992] FCA 599
Lees v Comcare and Anor (1999) 56 ALD 84
National Disability Insurance Agency v McGarrigle (2017) 252 FCR 121
National Disability Insurance Agency v WRMF [2020] FCAFC 79
QDKH and NDIA [2021] AATA 922
Shi v Migration Agents Registration Authority [2008] HCA 31
SZABO v Comcare [2012] FCAFC 129
VXVL and NDIA [2021] AATA 1709
REASONS FOR DECISION
Senior Member Damien O'Donovan
16 July 2021

The Applicant is a participant in the National Disability Insurance Scheme (NDIS). She has been diagnosed with Schizoaffective Disorder and experiences high levels of anxiety and depression. She lives alone in an ACT housing property with her two dogs.
The Applicant’s first NDIS plan came into effect on 8 April 2020. It included a statement of participant supports (Statement). The Statement provided funding for core supports, transport funding and capacity building supports.
On 23 June 2020 the Applicant submitted an application for review of the decision to approve that Statement.
In her request for review the Applicant sought changes to the goals listed in her plan. She also expressed an interest in:
(a)equine therapy;
(b)weekly psychological support;
(c)a meal delivery service;
(d)a dietician;
(e)support to attend exercise classes and undertake exercise;
(f)one on one support to attend social and other events and go out into the community; and
(g)funding to go on walking trips with community organisations.
The Applicant also sought support to train a new companion dog. The Applicant wanted a dog she had recently bought called Spuddy to be trained and registered as a companion dog. The Applicant described having a support dog as the best support for maintaining her mental health. The Applicant submitted that a support dog made her feel more grounded and gave her less anxiety. Without her dogs the Applicant said that she would require the assistance of a support worker whenever she left the house and this would reduce her independence and be a backward step for her recovery.
The Applicant also sought support that would enable her to access supported employment funding to enable her to work 20 hours per week as well as funding for gardening, cleaning and shopping and Richmond Fellowship cooking classes.
The Applicant listed new goals that she wanted added to the plan. In terms of additional funding, the Applicant sought the following outcomes:
(a)An increase in capacity building supports – daily activities to $27,487.80;
(b)An increase in capacity building supports – social and community participation to $25,995.84;
(c)An increase in core funding to $87,739.16;
(d)Assistance with finding and keeping employment to be included in the plan $57,148;
(e)Transport to remain unchanged $1,784.00;
(f)Support coordination to increase to $7,060.32;
(g)The plan to remain managed by a Plan Manager.
On 1 September 2020 a delegate of the CEO of the Respondent decided:
I have considered the available information and have decided that the original decision is correct. This means I have founded the requested supports do not meet the reasonable and necessary criteria under section 34 of the Act or Part 5 of the NDIS (Supports for Participants) Rules 2013.
On 1 September 2020 the Applicant sought review of that decision.
At a directions hearing on 2 March 2021 the Applicant indicated that she was seeking the following supports:
(a)15 hours a week of support worker assistance with activities of daily living;
(b)15 hours a week of support worker assistance with social and community participation;
(c)Increased attendance at group programs (hours unspecified);
(d)Psychological support;
(e)Equine therapy;
(f)Annual occupational therapy reviews;
(g)Dietician (hours unspecified);
(h)Dog training (hours unspecified); and
(i)Assistance finding and keeping a job.
Items 10(c) and 10(f) had not previously been raised for inclusion in the Statement. This raises a jurisdictional question which I discuss further below.
By the time the matter came on for hearing the Respondent accepted that the following should be included in the Applicant’s Statement:
(a)15 hours per week for a support worker to assist the Applicant with activities of daily living;
(b)15 hours per week should be included for a support worker to assist the Applicant with social and community participation;
(c)Subject to querying whether the Tribunal has jurisdiction to include the matter in the Statement, 12 hours of funding for an occupational therapist to provide an updated functional assessment and determine appropriate goals for the next 12 months prior to the Applicant’s next plan review; and
(d)Fortnightly sessions with a psychologist.
At the commencement of the hearing the following matters appeared to remain in dispute:
(a)The provision of a dietician and supply of a meal service;
(b)Whether psychology sessions should be weekly or fortnightly;
(c)Whether support should be provided for equine therapy;
(d)Whether participation in group programs should be funded;
(e)Whether funding support for the Applicant to find and maintain employment should be provided; and
(f)To what extent various forms of assistance for Spuddy constitute reasonable and necessary supports.
Following the evidence given by the Applicant on the first day of the hearing it became apparent that she was satisfied with fortnightly psychology sessions and so that issue fell away. Further, provided she had access to a meal service, the Applicant indicated that she did not require the services of a dietician. The Respondent subsequently agreed that a meal plan could be funded, but the funding needed to come from the support worker funding for activities. The Respondent also indicated that it agreed that participation in group activities should be funded, provided it came out of the existing budget for a support worker to assist the Applicant with community participation.
This was explained to the Applicant on the second day of the hearing and she indicated that she was agreeable to the Tribunal approving a Statement in that form.
This left four issues for determination by the Tribunal:
(a)Whether support should be provided for equine therapy;
(b)Whether the Applicant should be funded to find and maintain employment;
(c)To what extent various forms of assistance for Spuddy constituted reasonable and necessary supports;
(d)Whether the Tribunal had jurisdiction to include in the any Statement it approved annual occupational therapy reviews.
Statutory Framework
Section 99 sets out the decisions which are reviewable decisions for the purposes of the NDIS Act.[1] In this case the relevant decision is identified at s 99(d) being:
A decision under subsection 33(2) to approve the statement of participant supports in the plan.
[1] All references in this section are references to the National Disability Insurance Scheme Act 2013 (NDIS Act).
Reviewable decisions can be reviewed within the Agency (s 100) and applications can be made to the Tribunal in respect of any decision reviewed under s 100 (s 103).
Section 33(2) provides as follows:
A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a) The general supports (if any that will be provided to, or in relation to, the participant; and
(b) The reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c) The date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d) The management of the funding for supports under the plan (see also Division 3); and
(e) The management of other aspects of the plan.
There are some features of this power that are worth noting. First, a statement of participant supports is part of a plan, not the plan itself. Second, the decision the subject of review is the decision to approve the statement prepared with the participant, not the narrower question of whether a particular item within the plan is a reasonable and necessary support. As I discuss further below, this has implications for the scope of the Tribunal’s jurisdiction. However, there is no denying that if a reasonable and necessary support is to be specified in the statement of participant supports it must meet specific statutory criteria and no statement could be approved which included supports which did not meet the criteria.
The other statutory criteria relevant to the decision I need to make include:
32 CEO must facilitate the preparation of participant’s plan
(1)If a person becomes a participant, the CEO must facilitate the preparation of the participant’s plan.
(2)The CEO must commence facilitating the preparation of the participant’s plan in accordance with the National Disability Insurance Scheme rules.
s33(5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a)have regard to the participant’s statement of goals and aspirations; and
(b)have regard to relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f)have regard to the operation and effectiveness of any previous plans of the participant.
34 Reasonable and necessary supports
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a) the support will assist the participant to pursue the goals, objecitves and aspirations included in the participant’s statement of goals and aspirations;
(b) the support will assist the participant 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 the 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 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 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 reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The statutory rules for the scheme can also influence whether a support is reasonable and necessary.
Pursuant to section 37, a plan comes into effect when the CEO has received the participant’s statement of goals and aspirations from the participant and approved the statement of participant supports (s37(1)). A participant’s plan ceases to be in effect at the earlier of the following – when it is replaced by another plan under Division 4, or, when the participant ceases to be a participant.
For the purposes of the statement of participant supports, in specifying the management of the funding for supports, the plan must specify who the funding is to be managed by (s 42(2)).
The relevant payment provisions are as follows:
45 Payment of NDIS amounts
(1) An NDIS amount that is payable to a participant, or to a person who is managing the funding for supports under a participant’s plan, is to be paid:
(a)at the time or times determined by the CEO in accordance with the National Disability Insurance Scheme rules; and
(b)in the manner (if any) prescribed by the National Disability Insurance Scheme rules
46 Acquittal of NDIS amounts
(1) A participant who receives an NDIS amount, or a person who receives an NDIS amount on behalf of a participant, must spend the money in accordance with the participant’s plan.
NDIS amount is defined in section 9 of the Act as follows:
NDIS amount means an amount paid under the National Disability Insurance Scheme in respect of reasonable and necessary supports funded under a participant’s plan.
A participant’s plan cannot be varied once it comes into effect, it can only be replaced under Division 4 of the Act (s38) (or varied on internal review or by the Tribunal (s99)).
Division 4 makes it relatively easy for a participant to change their statement of goals in their plan and have a new plan issued (s47). By contrast, alteration of the statement of participant supports within the plan is closely regulated. Review of the statement element of the plan cannot be undertaken without a decision by the CEO to do so (s48(3) and (4)). However, the CEO must conduct a review of the participant’s plan before the review date and in any circumstances specified in the plan. When a review is conducted, the CEO must facilitate the preparation of a new plan in accordance with Division 2 (which includes section 33).
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Supports for Participants Rules) provide details of the criteria to be applied and matters to which the CEO is to have regard in deciding whether to include reasonable and necessary supports in a participant’s plan. These rules include the following provisions:
2.2 In deciding whether to approve a statement of participants supports, the CEO is to have regard to a range of matters set out in the Act including the participant’s statement of goals and aspirations. This will also specify the environmental and personal context of the participant’s living...
...
2.4 The CEO may consider supports in a plan either in relation to a particular support or a package of supports to achieve an outcome. If the participant has identified or requested particular supports, the CEO will also have regard to these. (emphasis added)
...
4.1 When deciding whether or not to approve a statement of participant supports under section 33 of the [NDIS Act], the CEO is to:
(a) identify the participant’s goals, aspirations, strengths, capacity, circumstances and context; and
(b) assess activity limitations, participant restrictions and support needs arising from a participant’s disability; and
(c) assess risks and safeguards in relation to the participant; and
(d) relate support needs to the participant’s statement of goals and aspirations.
It is also worth noting the following matters highlighted by the Federal Court.
In National Disability Insurance Agency v WRMF[2], the Full Court of the Federal Court observed that the phrase reasonable and necessary supports ‘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’.
[2] [2020] FCAFC 79 at [151].
In National Disability Insurance Agency v McGarrigle[3], Justice Mortimer discusses the power which the CEO exercises in relation to reasonable and necessary supports and concludes that the ‘function being performed on review by the Tribunal is to approve, vary or modify the supports as set out in a participant plan. In performing that function the Tribunal must have regard to the matters set out in s 33(5) and form its satisfaction in accordance with s 34’.
[3] (2017) 252 FCR 121 (McGarrigle) at [85].
This passage describes in practical terms the nature of the exercise in which the Tribunal is engaged and frames the issues with which the Court had to deal on that occasion in a clear and direct way. There is however a small nuance which was unnecessary to focus on in that case, but which has significance when the scope of the Tribunal’s jurisdiction is being considered. The decision the Tribunal makes is not a decision to include any particular support in a statement of participant supports, although in many cases that will, as a practical matter, be the question to be resolved. It is the decision to approve the statement of participant supports, the content of which has been prepared with the participant, which is the decision under review. In most circumstances this nuance makes no practical difference to how the Tribunal must approach its task. However, when the jurisdiction of the Tribunal to consider inclusion of a particular support is raised as is explained further below, it becomes significant.
Justice Mortimer also observed:[4]
(a)‘the word “support” must be given a broad construction… the point to be made is that it is a practical description of the means by which a person with disability is assisted; and
(b)the matters set out in s 33(5) are mandatory aspects of the CEO’s approval function, and therefore on review, mandatory aspects of the Tribunal’s approval function.
[4] McGarrigle at [88] and [38].
Having described the framework and the residual issues to be determined in this matter it is now necessary to turn to the matters on which there is no agreement and consider whether they should be included in any Statement approved by the Tribunal.
The outstanding issues are:
(a)Whether equine therapy should be included in the Statement;
(b)Whether assistance to find and maintain employment should be included in the Statement;
(c)To what extent various forms of assistance for Spuddy constitute reasonable and necessary supports;
(d)The scope of the Tribunal’s jurisdiction to include supports which were not sought either prior to the original plan approval or prior to the making of the reviewable decision.
Equine Therapy

In her request for internal review, the Applicant stated as follows:
Another thing I am interested in is Equine Therapy. I have had a lot of assistance over the years from psychologists and support workers but find I feel my best when working with animals. I would be interested to hear how the NDIS may be able to help me to partake in Equine Therapy.
The Applicant suggested funding in the order of $10,000 on the basis that it supported the goal of maintaining her physical health.
For the purposes of this review the Applicant relied on the report of Charlotte Chapman, an occupational therapist, dated 14 October 2020 to support the inclusion of equine therapy in her Statement. That report relevantly provided:
Ms Dunstan has expressed an interest in engaging in an equine therapy program at “PeakGrove” in Yass to assist in the management of her schizoaffective disorder. In equine therapy certain characteristics of horses are used to facilitate change in perception of self and others, as well as the formation of new skills and approaches that can be translated into activities of daily living. For more information please visit the Peak Grove website…Engagement in an equine therapy program may be an appropriate method to assist Ms Dunstan to increase her independence and ability to engage in activities of daily living on a more regular basis. Further guidance regarding this recommendation should be sought from Ms Dunstan’s psychologist once she has been appropriately assessed and is receiving regular input.
The Applicant also gave evidence about her interest in equine therapy. She highlighted that she is at her best with animals and that her employment prospects might be enhanced if she could work in an industry involving animals. She also saw other benefits arising from equine therapy. In particular an increase in fitness and muscle tone. She also identified the therapy as being more organic than her drug therapy – like her interactions with dogs.
In order to specify a support as a reasonable and necessary support that will be funded in a statement of participant supports which can then be approved, I must be satisfied in relation to that funding of all of the matters set out in section 34(1).
In relation to equine therapy, on the evidence before me I am not satisfied of all of the matters set out in that subsection. In particular I am not satisfied that 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. On the evidence before me it is unclear what the cost of the support will be but it is likely to run to many thousands of dollars. The need for the therapy is however expressed in very qualified terms by the Applicant’s occupational therapist. She indicates that the therapy ‘may’ be appropriate to assist Ms Dunstan to increase her independence.
With the benefits of the therapy unclear and the costs significant, I am not satisfied that this is a reasonable and necessary support.
Assistance to find and maintain employment
In her internal review request the Applicant stated as follows:
Given my recent hospitalisation it will take me time to be able to find employment but I feel towards mid [way] through my plan I should have a better idea of where my [goal] to work is at. I have also been talking to my support coordinator about doing some more at the UC supervising exams and we are looking into this. I have a goal to apply for a role in the public service as I have an Arts Degree (2000) and a Diploma of Secondary Teaching (2007). I would like to be able to access the supported employment funding as I am looking to do work for up to 20 hours per week.
The total annual cost of this support is up to $57,148.
In the report of Ms Chapman, she said:
Ms Dunstan would benefit from support from an appropriate professional or organisation to obtain and maintain paid employment or a volunteer position. Ms Dunstan currently does not engage in any paid employment or volunteer work and spends the majority of her day at home. Ms Dunstan would like to pursue volunteering or paid employment. Ms Dunstan has previously gained a teaching degree and is appropriately qualified to teach yoga. Ms Dunstan would benefit from assistance and support around work readiness and job skills. Ms Dunstan is keen to engage in volunteering and paid employment, however presents with difficulty with social interactions, motivation and maintaining attention to task.
The specific assistance a provider could give was identified as:
-assisting Ms Dunstan to develop work readiness including appropriate presentation, communication and employability skills;
-assisting Ms Dunstan to develop the necessary documents for paid employment including a resume and cover letter;
-assisting Ms Dunstan to obtain the necessary qualifications for paid employment or volunteering;
-assisting Ms Dunstan to locate and express interest in appropriate paid employment or volunteer positions;
-assist Ms Dunstan to manage the requirements of volunteering or paid employment;
-assisting Ms Dunstan’s employers to understand her difficulties with social skills, motivation and concentration and how to best approach them within the workplace;
-analysing the tasks Ms Dunstan would be required to complete and modify some aspects whilst she is still developing her work readiness skills;
-supporting Ms Dunstan to maintain paid employment or a volunteering position through providing assistance if any issues were to arise.
The above input from an appropriate provider could assist Ms Dunstan to continue to become financially independent, preventing the need for long term financial support.
The Supports for Participants Rules deal with the issue of employment support. Set out at Schedule 1 are considerations relating to whether supports are most appropriately funded through the NDIS.
The considerations set out in the schedule must be taken into account by the Tribunal in deciding whether a support is more appropriately provided or funded by the NDIS or another service system.
Rule 7.18(b) of provides:
The NDIS will not be responsible for:
(a)…
(b)the funding or provision of employment services and programs, including both disability-targeted and open employment services, to provide advice and support to:
(i)people with disability to prepare for, find and maintain jobs; or
(ii)employers to encourage and assist them to hire and be inclusive of people with disability in the workplace (ie support, training and resources, funding assistance to help employers make reasonable adjustment, and incentives for hiring people with disability, eg wage subsidies)
The employment assistance proposed by the Applicant falls within the terms of this rule.
Support of the kind which the Applicant seeks is available through Disability Employment Services which is the Australian Government’s employment service that helps people with disability find work and keep a job. Disability Employment Service Providers can help if a person with a disability is looking for work.
In these circumstances and in light of the statement in the Rules, I am not satisfied that the support is most appropriately funded through the NDIS.
It also became clear at the hearing that the Applicant was also seeking to have funding for someone to look after her dogs while she was at work. In the period between her seeking internal review and the hearing conducted by the Tribunal the Applicant had secured some casual work as an education support worker at a Canberra school. While she was at work the Applicant was able to leave her two dogs at home together and had them checked on by a friend.
To the extent that her dogs require some limited supervision while she is at work I am satisfied that it is not appropriate to fund it through the NDIS. In my assessment, the kind of limited supervision the Applicant described her dogs as needing, it is reasonable to expect families, carers or informal networks to provide the service.
Various forms of assistance for Spuddy
I should make clear at the outset that I am not considering or determining whether Spuddy, is a companion dog or whether she constitutes a reasonable and necessary support within the terms of the Act. I have not been asked to consider such a general question by the Applicant, and even if I had, I do not have sufficient evidence to consider whether Spuddy constitutes a reasonable and necessary support. In particular there is insufficient evidence as to whether Spuddy represents value for money. I do not have evidence concerning the total cost of Spuddy and only limited evidence concerning the benefits derived from Spuddy. I am however satisfied that Spuddy is more than a pet and does provide therapeutic benefits to the Applicant.
The Applicant has sought more specific support to enhance the assistance Spuddy can provide to her. Consequently, it is necessary for me to address whether the specific supports she seeks should be included in her Statement.
The Applicant was originally seeking to have the cost of training her dog ‘Spuddy’ so she could pass the ACT Assistance Animal Public Access Test. Her occupational therapist supported the funding of the training. Her report stated:
Ms Dunstan would benefit from provision of funding to train her dog Spuddy to be a registered assistance animal and replace her current assistance dog Cane who is ageing. Ms Dunstan reported that as a result of her schizoaffective disorder she experiences significant anxiety regarding community access, social interactions and being home alone…in order for Spuddy to be legally recognised as an assistance animal he needs to have appropriate training and pass a Public Access Test (PAT) which can cost in excess of $5000. Ms Dunstan would benefit from funding to assist with paying for this training.
That training has already been successfully completed using other heads of funding in the Applicant’s plan. There may, however, be a residual issue as to whether the Applicant did the wrong thing by using funding for assistance with social support to have Spuddy trained and tested. Given that the Statement which I am approving will cover a past period as well as the future, I will address the question of whether training of Spuddy was a reasonable and necessary support.
The Applicant’s own evidence is that having an assistance dog has proven to be the best support she has for maintaining her mental health.
Her psychiatrist provides some support for this. Dr Ann Harrison states:
I have been Julia’s psychiatrist for eight years. During that time she has been greatly helped by her assistance dog, Carne, who is approaching retirement now at 12 years old with declining health. She has acquired another dog she wishes to train, Spuddie, who is 3. She has had these dogs all the time I have seen her, and other assistance dogs prior to my contact with her. They help support her high levels of anxiety and at times depression when she is mentally acutely unwell with Schizoaffective Disorder…
I am satisfied that the training of Spuddy to be an assistance dog is a reasonable and necessary support. Having a dog that has passed the Public Access Test assists the Applicant to achieve the goal in her plan to improve and maintain her mental and physical wellbeing. Having an assistance dog assists the Applicant to undertake activities which facilitate the Applicant’s social participation. The support represents value for money in that the cost of the support is reasonable relative to the benefits achieved and the cost of alternative support. The support is effective and beneficial to the Applicant. In reaching this view I am satisfied that the support is most appropriately funded through the NDIS and I have taken account of what it is reasonable for others to provide.
Accordingly, funding for the training of Spuddy will be included in the Applicant’s Statement which will retrospectively authorise whatever payments were made to enable Spuddy to be trained and tested as an assistance animal.
My finding is that the training of Spuddy to allow her to accompany the Applicant to more places is a reasonable and necessary support. I am not concluding that the Applicant requires a fully funded assistance dog as a reasonable and necessary support.
In addition to the dog training, the Applicant sought the following supports to be included in her Statement:
(a)Further assistance in training Spuddy;
(b)Care for her dogs while she is working or on other activities;
(c)Assistance with costs of maintaining Spuddy such as veterinary bills.
As noted above I am already satisfied that provision of a person to look after the Applicant’s dogs while she is at work is not a reasonable and necessary support. The two dogs keep each other company and can be checked on by friends. Accordingly, taking account of what it is reasonable to expect others to provide, it is not a support which should be included in the Statement.
In relation to further training for Spuddy, I am satisfied that it constitutes a reasonable and necessary support. The better trained Spuddy is, the more likely it is that she will be able to accompany the Applicant to more places and behave better when she is there. This will assist the Applicant to pursue the goals included in her plan. It will assist the Applicant to undertake activities so as to facilitate the participant’s social and economic participation. Based on the evidence available to me the support represents value for money as its cost, relative to other medical interventions which have the same therapeutic benefit is low. It will be beneficial to the Applicant in that it should increase the range of places she can go accompanied by Spuddy.
I am satisfied that training of Spuddy is a reasonable and necessary support.
I am not satisfied that providing Spuddy with veterinary care and material support constitutes a reasonable and necessary support. I am unable to determine on the evidence available to me what the costs of providing these things would be or what benefit the Applicant would derive from them. In these circumstances I am not satisfied that they constitute reasonable and necessary supports.
Review Date
The plan specified a review date of 8 April 2021. According to the Respondent’s Statement of Facts, Issues and Contentions, the plan was not reviewed but the Applicant’s supports were replicated for a further 12 months and the next review is scheduled to occur by 8 April 2022. The document does not disclose the precise legal mechanism by which this was done, but I am proceeding on the basis that it did not lead to the creation of a new plan and I am considering a statement of participant supports which needs to cover the period from 8 April 2020 to 8 April 2022 .
Jurisdiction
The final question that it is necessary for me to deal with is the question of my jurisdiction.
There are two matters which the Respondent says are beyond my jurisdiction to determine. The first is the inclusion of annual occupational therapy reviews in the Statement and the second is paying for increased attendance at group programs. The Respondent now accepts that occupational therapy reviews are a reasonable and necessary supports but maintains the view that I cannot include such reviews in the Statement because they were only raised for consideration by the Applicant following her application to the Tribunal.
In relation to the funding for group activities, the Respondent has sought to accommodate it within the Statement, not by its direct inclusion in the Statement, but by noting that the funding for a ‘Support Worker – Social and Community Participation’ can be used flexibly to pay for the cost of attending group programs. I do not consider that it is either necessary or appropriate to use this device as a means of incorporating funding for group activities into the Statement. For reasons which are explained further below, I am satisfied that the Tribunal has jurisdiction to add in attendance at group programs as a reasonable and necessary support and so it is not necessary to resort to such a device. Even if the Tribunal did not have jurisdictions, the use of the device suggested would not be appropriate. The terms of a plan authorise the expenditure of public money.[5] A participant who receives an NDIS amount must spend the money in accordance with the plan. Paying for a support worker is not the same as paying a fee to attend a group activity. Making notes on plans that render the words which authorise the payment of public money elastic is a practice which is likely to lead to confusion and has the potential to undermine the integrity of the scheme. If a support should be included in a statement of participant supports, then the statement should make it clear that a person is entitled to spend money on that support – not merely note that money can be diverted from another approved source.
[5] NDIS Act, Section 46(1).
Such an expedient should not be encouraged in any circumstances, but is, in my assessment unnecessary if a broad approach is permitted in relation to the Tribunal’s jurisdiction. For the reasons explained below, my view is that the Tribunal’s jurisdiction is broad and flexible.
The precise scope of the Tribunal’s jurisdiction when reviewing statements of participant supports has become controversial. In QDKH and NDIA [2021] AATA 922 (QDKH) Deputy President Constance took a narrow view of the Tribunal’s jurisdiction in matters of this kind. Deputy President Constance determined that the Tribunal only had jurisdiction to consider the inclusion of supports which were the subject of a specific request for review and were considered by the internal review decision maker. He determined that requests for supports raised after the proceedings were commenced and which were not the subject of consideration for inclusion on internal review could not be considered as there was no reviewable decision in relation to them as described in section 103 of the Act. That decision is currently the subject of an appeal to the Federal Court but has been followed in more recent AAT decisions BWLK and NDIA [2021] AATA 1631 and Young and NDIA [2021] AATA 1555.
A different approach was taken by Member Buxton in the recent decision of VXVL and NDIA [2021] AATA 1709 (‘VXVL’). After a reviewing a number of authorities and the authorising statute Member Buxton concluded that:[6]
There is no basis to conclude that the Tribunal’s jurisdiction to review a decision made under subsection 33(2) of the NDIS Act would be limited by virtue of the fact that a participant failed to identify all aspects of the decision with which they disagreed, or particular supports that should have been included, when initiating an internal review under section 100 of the NDIS Act. To do so would be to incorrectly conflate the relevance to the Tribunal of, on the one hand, an internal review decision (that triggers the Tribunal’s review jurisdiction through subsection 25(1) Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) and section 103 of the NDIS Act) and, on the other hand, the primary decision, which dictates the scope of the Tribunal’s review jurisdiction. Beyond identifying that a review is sought of the decision to approve a statement of supports, a participant in the NDIS is not required to be the architect of the parameters of that review, either internally to a review, or externally to the Tribunal.
[6] At [26].
There is no strict doctrine of precedent in the making of administrative decisions. Ultimately the burden on an administrative decision maker is to make the correct or preferable decision on the material before them. Decisions of other members of the Tribunal and in particular decisions of Deputy President’s should be shown proper deference. However, if a member is satisfied that, to dispose of a matter in accordance with the prescription laid down by Parliament, it is necessary to depart from the approach taken in other Tribunal decisions then that is what a member is required to do.

In the present case, notwithstanding the views of two very distinguished Deputy Presidents, I favour the views expressed by Member Buxton.
The key to the Tribunal’s jurisdiction in any given case is the statute which authorises the reviewable decisions which have been made. So much is clear from the following passage in Shi v Migration Agents Registration Authority [2008] HCA 31 at [142] (Shi):
In considering what is the right decision, the Tribunal must address the same question as the original decision maker was required to address. Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision. The issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision. It is not to be confused with the Tribunal’s general procedural powers to obtain evidence. The issue is whether evidence, so obtained, may be taken into account with respect to the specific decision which is the subject of review.
As the decision in Shi demonstrates, it is important not to bring preconceptions to the question of what the Tribunal’s task is, but examine carefully the authorising statute. In Shi it was determined that when the Tribunal is reviewing a decision of the Migration Agents Registration Authority (MARA) different approaches were required depending on the nature of the decision that was made. When the Tribunal was determining whether a person was a fit and proper person to give immigration assistance, that was a decision made by reference to facts and circumstances prevailing at the time of the Tribunal’s decision, not at the time when MARA made its decision. However, in determining whether a person had breached the Migration Agent’s Code of Conduct, there was a temporal element, which restricted the question to be considered by the Tribunal to matters arising before MARA determined that there had been a breach of the Code.[7]
[7] Shi, at [146].
While it is not a temporal element which is of concern in this case, the key lesson from Shi is that it is necessary to pay close attention to the authorising statute in order to understand the task the Tribunal is to perform.
This was re-emphasised in the recent High Court decision in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [14]-[15]:
…the AAT is not at large. It is subject to the same general constraints as the original decision-maker and should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision.
Depending on the nature of the decision the subject of review, the AAT may sometimes take into account evidence that was not before the original decision-maker, including evidence of events subsequent to the original decision. But subject to any clearly expressed contrary statutory indication, the AAT may do so only if and to the extent that the evidence is relevant to the question which the original decision-maker was bound to decide; really, as if the original decision maker were deciding the matter at the time that it is before the AAT. The AAT cannot take into account matters which were not before the original-decision maker where to do so would change the nature of the decision, or put another way, the question before the original decision-maker. As Kiefel J observed in Shi, identifying the question raised by the statute for consideration will usually determine the facts that may be taken into account in connection with the decision. The issue is one of relevance, to be determined by reference to the elements of the question necessary to be addressed in reaching a decision.
In some contexts, this focus on the statutory question leads to the Tribunal having quite a limited jurisdiction to review certain decisions. Decisions under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) are one example. Because of the High Court’s decision in Canute v Comcare [2006] HCA 47 identifying specific injuries as the statutory focus for decision making, quite small changes in the way in which the Applicant puts their case can lead to findings that the Tribunal lacks jurisdiction to consider any broader question.[8]
[8] See for example Comcare v Muir [2016] FCA 346, SZABO v Comcare [2012] FCAFC 129, cf Comcare v Abrahams [2006] FCA 1829.
Of more general significance though is the decision of Comcare v Burton[9] in which Justice Finn explained how the prescribed review process in a statute constrains the questions which a Tribunal could address:
First, in relation to s 43(1) of the AAT Act, that provision (as with, for example, s 23 of the Federal Court of Australia Act 1976 (Cth) as it applies to this court) confers power on the tribunal in relation to matters in which it has jurisdiction. It is not itself a source of jurisdiction. Further more the s 43(1) conferral is subject to the limitation that it is “for the purpose of reviewing a decision”; …in relation to SRC Act appeals the tribunal’s jurisdiction is limited in two ways. (1) By virtue of s 25 of the AAT act and s 64 of the SRC Act its province is limited to reviewing what under the SRC Act is a “reviewable decision”. (2) To be constituted such a decision under the SRC Act, the process of determination and reconsideration must have been engaged in – and then only in respect of those sections of the statute that can give rise to a “determination”: SRC Act ss60, 62. Both forms of limitation, but particularly the latter, necessitate that it be ascertained what is the particular ‘reviewable decision’ that the tribunal is to review: Secretary, Department of Social Security v Riley (at FCR 105). The process of reviewing that decision is to occur in the setting of the question(s) that gave rise to the decision. And while in that process the tribunal can exercise its s43(1) powers, it nonetheless is obliged to answer the same question(s) that gave rise to the decision. And while in that process the tribunal can exercise its s 43(1) powers, it nonetheless is obliged to answer the same question(s) as was (were) before the reconsideration decision-maker: Hospital Benefit Fund of Western Australia v Minister for Health, Housing and Community Services (at FCR 234).
Thirdly, in the present case the identification of that question presents no particular difficulty. It may well be the case that Ms Lees is able to claim some number of the types of compensation specified in the SRC Act given the nature and consequences of her injury and her actual circumstances. But whatever the claims she may be able to make, what she has done was to seek the determination of a quite particular question – that of payment of taxi fares under s 16 of the Act. The determination and reconsideration of that question has created the conditions which gave the tribunal jurisdiction to address that particular question. At the time of the primary decision no express request of hers had raised as a practical matter the consideration of her actual entitlement (if any) to compensation for permanent impairment.
[9] [1998] 50 ALD 846 (Comcare v Burton) at 851 and 852.
Consequently, the Tribunal was found to have jurisdiction to consider whether the Ms Lees was entitled to taxi fares pursuant to the medical expense provisions of section 16 of the SRC Act, but it did not have jurisdiction to consider whether the applicant was entitled to a lump sum payment for permanent impairment pursuant to section 24 of the SRC Act.
An appeal against the decision of Justice Finn was dismissed by the Full Court. The Full Court relevantly found at [32]:[10]
…Part VI of the Act…establishes a three tiered decision-making process: the original decision or determination to be made by an authorised person within Comcare or a licensed authority, a reconsidered determination to be made within the same authority as the original decision – but ordinarily by a fresh decision-maker, and a decision of the AAT reviewing the reconsidered determination….
[34] The definition of ‘determination’ makes it plain that it is part of the scheme of the Act for determinations to be made under the various sections referred to therein…
[39] In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first that the AAT is authorised by s64 of the Act to review only reviewable decisions – that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determinations: s61(1). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT act are powers “[f]or the purpose of reviewing” the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under section 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision making stage…
[47]…His Honour concluded that the AAT did not have jurisdiction to make a determination as to the amount of compensation, if any, payable to Ms Lees under s 24 of the Act.
[48] In our view, his Honour was plainly right in so concluding.
[10] Lees v Comcare and Anor (1999) 56 ALD 84.
The Full Court went on to consider a second application before it and reached the same conclusion:
[56] In view of the structured decision-making process established by the Act, and the plain language of s 64 of the Act, the powers of the AAT under s 64 do not in our view on an application to review a decision under s 14 of the Act, extend to allowing it to reach a decision as to Mr O’Donohue’s entitlement, if any, to receive compensation under s 24 of the Act.
The Court made a declaration in the following terms:
[57]…the AAT does not have the power on the application presently before it to determine the entitlement, if any, of Mr O’Donohue to receive payments of compensation under s 24 of the Act.
It is clear from these decisions that in many circumstances the Tribunal will find itself with a very confined jurisdiction. But, in order to determine how confined it is, it is necessary to examine closely the nature of the decision which was made below (discerned from the authorising statute) in order to determine the scope of the Tribunal’s jurisdiction on review.
In considering this question, two things can be said about the NDIS Act. First, it adopts the same three-tiered decision-making structure which appears in the SRC Act and which was found to constrain the Tribunal’s jurisdiction in Comcare v Burton. Second, and more importantly, the nature of the decision which is the subject of that three-tiered structure is a much more open one than the powers which are to be found in the SRC Act.
The decision which is the subject of review is the decision to approve a statement of participant supports under section 33(2). It is not a decision to approve particular supports as reasonable and necessary. It is not a finding that a particular support sought is reasonable and necessary.
The statutory duty imposed upon the CEO is to approve a statement prepared with a participant. The Rules provide that ‘in deciding whether to approve a statement of participant supports, the CEO is to have regard to a range of matters set out in the Act including the participant’s statement of goals and aspirations.’[11] The Rules also make clear that ‘[t]he CEO may consider supports in a plan either in relation to a particular support or a package of supports to achieve an outcome. If the participant has identified or requested particular supports, the CEO will also have regard to these’ (emphasis added).[12]
[11] Supports for Participants Rules,rule 2.2.
[12] Supports for Participants Rules,rule 2.4.
This rule emphasises what is already apparent in the words of section 33. Development of a statement of participant supports is an exercise into which Applicant’s have input, but it is the CEO who ultimately determines what goes into the statement of participant supports which the CEO then approves.
This is a very different exercise to the one contemplated under the SRC Act. Under the SRC Act, claims are made by an Applicant and compensation determinations made in response under specific heads of compensation. The result is a very narrow reviewable decision and a correspondingly narrow jurisdiction for the Tribunal. Under the NDIA Act the preparation of a participant’s plan and the approval of a statement of participant supports is the product of a statutory duty imposed upon the CEO by reason of a person being a participant in the scheme.[13] In performing that duty, the CEO is not responding to a claim for reasonable and necessary supports but is deciding what should be approved having regard to the statutory framework.
[13] Section 32(1) of the NDIS Act.
Given how open the initial decision to approve is, it is difficult to read in any significant restriction as the matter moves through the review process. If evidence and submissions are put to the Tribunal which support the inclusion of items in the statement of participant supports which the Tribunal decides to approve, there is no obvious basis on which those can be disregarded.
In this respect I am in complete agreement with Member Buxton’s assessment at paragraphs [17] to [26] of her decision in VXVL as to the scope and nature of the power which is the subject of review.
In these circumstances I am satisfied that I have jurisdiction to include in the Applicant’s Statement, items which were not the subject of specific consideration when the reviewable decision was first made. I can approve a Statement which includes matters which were not raised until later in the review process.
Conclusion
The Tribunal sets aside the reviewable decision dated 1 September 2020 on and from 13 July 2021 and in substitution approves the statement of participant supports annexed to this decision.

I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the direction herein of Senior Member Damien O’Donovan.

............................[sgd]...........................................
Associate
Dated: 16 July 2021

Date of hearing: 4 and 16 June 2021

Applicant:
Counsel for Respondent:

In person

Ms Jess Moir