Duse and National Disability Insurance Agency (NDIS)

Case [2025] ARTA 37

Duse and National Disability Insurance Agency (NDIS) [2025] ARTA 37 (16 January 2025)

Applicant/s:  Claudio Duse

Respondent:  National Disability Insurance Agency

Tribunal Number:                2023/6351

Tribunal:Administrative Review Tribunal

Place:Hobart

Date:16 January 2025

Decision:The Tribunal affirms the decision under review pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth).

..............................[sgd]..........................................

General Member A. Williams


NATIONAL DISABILITY INSURANCE SCHEME – review of statement of participant supports – request for funding of art materials – reasonable and necessary supports – applicant sought review of statement of supports to allow for funding for art supplies – decision under review affirmed.

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) (NDIS Supports) Act 2024
National Disability Insurance Scheme (Supports for Participants) Rules 2013
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024

Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
G v Minister for Home Affairs [2019] FCAFC 79 [18]
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Madelaine and National Disability Insurance Agency [2019] AATA 4025
National Disability Insurance Agency v WRMF (2020) FCR 415

Secondary Materials
 National Disability Insurance Scheme Operational Guideline

Statement of Reasons

  1. This application is about whether the Applicant, Mr Claudio Duse can have his request for funding of the cost of art supplies to the value of $20,000 by the National Disability Insurance Agency (the Agency) approved as part of his funded supports. Mr Duse seeks review of a decision made on 24 August 2023 by a “reviewer” under sub-s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) (‘Decision Under Review’).[1] This decision confirmed an earlier decision by the Agency on 25 May not to approve such funding as part of his funded supports.

    [1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘TD’).

  2. The Administrative Review Tribunal’s (‘Tribunal’) jurisdiction arises under s 12 of the Administrative Review Tribunal Act 2004 (Cth) (‘ART Act’), operating in conjunction with


    s 103 of the NDIS Act.

  3. For the reasons set out below, the Decision under Review is affirmed as the Tribunal is not satisfied that Mr Duse has established the requested support meets the reasonable and necessary criteria under s 34(1) of the NDIS Act.

    Background

  4. Mr Claudio Duse is a 67-year-old man who lives in suburban Melbourne. He lives on his own in a social housing property. He has little contact with his immediate family (a brother and sister). He has a son and daughter who live in Melbourne who have their own children, but rarely sees them, due to the distance involved and not being able to afford the fuel to drive there. He does have a close friend who he catches up with regularly…

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Details
AGLC
Duse and National Disability Insurance Agency (NDIS) [2025] ARTA 37
Case
[2025] ARTA 37
Decision Date

CaseChat Overview and Summary

Mr Claudio Duse, a 67-year-old man residing in suburban Melbourne, challenged the National Disability Insurance Agency’s (NDIS) decision to deny his request for funding for art supplies under his NDIS plan. Duse argued that these supplies were essential for his mental health and well-being, given his diagnosed conditions and the benefits he derived from art therapy. The dispute reached the AAT, which was tasked with reviewing the NDIS’s decision and determining whether the funding request met the criteria for reasonable and necessary supports under the NDIS Act. The AAT examined the evidence provided by Duse and the NDIS, including medical reports, therapist statements, and cost estimates, to assess the validity of Duse’s request.

The primary legal issue before the AAT was whether the NDIS’s decision to deny Duse's request for funding for art supplies was justified under section 34 of the NDIS Act and Rule 5 of the NDIS (Supports for Participants) Rule. This involved determining if the requested support met the criteria of being reasonable and necessary, and if it represented value for money. The NDIS argued that the funding for art supplies was a day-to-day living cost and did not meet the necessary criteria, while Duse maintained that these supplies were integral to his mental health management and daily life participation.

The AAT considered the evidence and submissions from both parties. Duse’s Art Therapist and Psychotherapist provided statements supporting the necessity of art supplies for Duse’s mental health and self-expression. However, the NDIS highlighted that Duse had not provided a detailed breakdown of the art supplies or evidence that similar outcomes could not be achieved at a lower cost. The AAT found that while art therapy and the use of art supplies had benefits for Duse’s mental health, the NDIS had reasonably concluded that the requested funding did not meet the statutory criteria for reasonable and necessary supports. The AAT concluded that the NDIS had appropriately exercised its discretion in denying the request, as it did not represent value for money and was not deemed necessary under the Act.

The AAT affirmed the NDIS’s decision, holding that Duse had not sufficiently demonstrated that the funding for art supplies met the statutory criteria. The Tribunal concluded that the NDIS had correctly applied the relevant provisions of the NDIS Act and the Rules in denying the funding request. As a result, the AAT did not alter the NDIS’s decision, upholding the agency's stance that the requested support was not reasonable and necessary under the circumstances.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons set out below, the Decision under Review is affirmed as the Tribunal is not satisfied that Mr Duse has established the requested support meets the reasonable and necessary criteria under s 34(1) of the NDIS Act.Background Mr Claudio Duse is a 67-year-old man who lives in suburban Melbourne. He lives on his own in a social housing property. He has little contact with his immediate family (a brother and sister). He has a son and daughter who live in Melbourne who have their own children, but rarely sees them, due to the distance involved and not being able to afford the fuel to drive there. He does have a close friend who he catches up with regularly each week. Prior to moving into his current home, Mr Duse had an extended period of four and a half years of either being homeless or in short-term living arrangements, which experience may have exacerbated his mental health. Mr Duse has the following diagnosed physical and psychosocial medical conditions:·Anxiety and Depression.·Post-Traumatic Stress Disorder (PTSD).·Abdominal hernia.·Sciatica (left side).·Angina and high blood pressure·High cholesterol In addition, Mr Duse reports that he has been also diagnosed with and received treatment for:·Borderline Personality Disorder·Attention Deficit Hyperactivity Disorder·Depression and Anxiety Mr Duse experiences a range of symptoms, including:·Insomnia and erratic sleep cycles and resulting fatigue.·Difficulty in getting moving in the morning.·Persistent cough and shortness of breath ·Lack of motivation·Poor concentration ·Social isolation ·Constant rumination. Mr Duse was approved as a participant in the Scheme in November 2017. Since then, he has had several support plans approved, including the current plan, the subject of this review. The current plan is a two-year plan with funding between 24 May 2023 and 23 May 2025. His current NDIS supports are as follows:Core Supports ·Funding to help you to maintain your home environment, specifically house cleaning, and meal preparation. Individual to attend and participate assistance to support you in community, social and recreational activities of your choice at the Standard Level: $99,332.48 (NDIA managed).Transport·Support to access work or travel to participate in social and community activities: $5,352.00.Capacity Building Supports·Improved Life Choices: $2,739.15 (NDIA managed).·Improved Daily Activity for Occupational Therapist and Psychologist $21,201.64 (Plan managed).·Support Coordination $11015.40 (NDIA managed). He attends art therapy with Sara Grace at the Arts Therapy Studio every second week and has done so since 2020.He sees his Psychotherapist Anne Sherry at the Melbourne Counselling Session on a regular basis. He does not currently engage with support workers. He also was previously seeing an Exercise Physiologist; however, it appears the funding for this particular therapy was discontinued in his most recent plan. He has a regular GP, Dr Daniel Martinez of Dromona Family Doctors, however it is not clear how frequently Mr Duse sees him.Decision under review and application for review to this tribunal

Evidence

Evidence Before The Court

Before moving on to outline the evidence and relevant legislation, I note that Ms Duse’s previous plans did not specifically included funding for art supplies. Rather Mr Duse had been using his core funding for such purposes apparently based on advice from his Support Coordinator and that his Plan Manager had been approving such invoices apparently unaware that it was not approved funding.[2][2] Please see Ms Grace’s Response to Targeted questions (JTB 143).Evidence and Submissions As part of the review process, the Tribunal was provided by the Respondent with those documents previously submitted as part of the original application process (the T Documents). Of potential relevance to this decision are the following reports:·Letter from Anne Sherry (Psychotherapist) dated 8 May 2023[3]·Letter from Anne Sherry (Psychotherapist) dated 8 August 2023.[4]·Report from Sean Koshiji (Physiologist EPA Health) dated 27 April 2023.[5]·Art Access Victoria Mentoring Program Quote dated 4 May 2023.[6]·Letter from Sara Grace, Art Therapist dated 26 July 2023.[7]·Undated report from Charlotte Roche (Support Coordinator).[8]·Plan Review Report from Ms Roche.[9]·Current NDIS Plan 24 May 2023 – 23 May 2025.[10][3] JTB 53-54.[4] JTB 39-40.[5] JTB 50-51.[6] JTB 52.[7] JTB 56-57.[8] JTB 76-77.[9] JTB 58-75.[10] JTB 102-114. During the conduct of the Tribunal’s pre-hearing procedure, both parties filed with the Tribunal Statements of Issues and Statements of Facts, Issues and Contentions. The most recent of these documents will be referred to throughout this decision. Mr Duse also provided a quote for art supplies and a letter of support from those assisting him. These included the following:·a quote from Melbourne Artists’ Supplies in the amount of $781.20.[11]·a letter of support from Dr Daniel Martinez (GP) dated 18 October 2024.[12][11] I note that Ms Grace in her Response to targeted questions (JTB 146) noted that she had requested the quote be generated and that the quote represented on average one months’ worth of such supplies.[12] JTB 179. The Respondent forwarded a series of targeted questions to Mr Duse’s Art Therapist, Sara Grace, and his Psychotherapist, Anne Sherry with both providing their responses on 28 March 2023.Ms Grace’s responses to targeted questions She recommends the funding of art supplies as a means of managing Mr Duse’s psychosocial impairment. It would support him to fulfill his wish to pursue an artistic career as well as develop his sense of self, support for his mental health and greater capacity to participate in daily life. She recommends this funding in addition to his current funding for art therapy classes. Creating art is central to his sense of self. In addition to assisting in his desire to be an artist, it has benefits for his mental health and capacity to express his emotions and self-regulate. In terms of the expected outcomes of such funding Ms Grace noted the following:Provision of art supplies:·Claude would have access to materials at home and using these could meaningfully engage in an activity that can communicate something of himself in the world. ·It provides an outlet for expressing his emotions and self-regulating.·It further gives him the opportunity to have greater self-confidence, have greater motivation and actively participate in the community.Art therapy·Enables him to develop strategies and skills for the making of meaning self-reflection and the skill to work towards a goal of what he wishes to create. ·Helps him in developing his capacities for life participation and developing his identity as an artist.·Assists him to navigate the art world in a way he can manage.·Supports his emotional social ability to navigate in the art world. ·Can inform his arts practice over time.

Decision

Reasons for decision

He has a regular GP, Dr Daniel Martinez of Dromona Family Doctors, however it is not clear how frequently Mr Duse sees him.Decision under review and application for review to this tribunal The Respondent provided an approved statement of supports for Mr Duse on 24 May 2023 after assessing Mr Duse’s request for funding for art supplies. It advised that Mr Duse’s request for the funding of art supplies did not meet the reasonable and necessary criteria under s 34 of the Act and Rule 5 of the NDIS (Supports for Participants) Rule (the Rules) (the initial decision). On 12 July 2023, Mr Duse requested that the Respondent conduct an internal review of the initial decision. The Respondent conducted its internal review and on 24 August 2023 advised that it had confirmed the initial decision’s finding that Mr Duse’s request for funding of $20,000 per annum for art supplies could not be approved, (the reviewable decision). The reasons given in the reviewable decision for refusing the request for art supplies were as follows:·The Agency considered the requested support relates to a day-to-day living cost under Rule 5.1(d) of the Rules; and·The requested support did not represent value of money as required under s 34(1)(c) of the Act. The decision maker noted that Mr Duse had not provided evidence which identified a comparable support which could achieve the same outcome at a substantially lower cost. Additionally, Mr Duse had not provided quotations which identified the nature of the art supplies and the breakdown of the individual items. On 29 August 2023 Mr Duse applied to the then Administrative Appeals Tribunal (AAT) for the AAT to conduct an independent review of the reviewable decision. In his application for review, Mr Duse noted the following as reasons why he considered the reviewable decision was wrong:I am requesting my core funding be used for art supplies which I have been using for many years as my own art therapy. This has been verified by my counsellor and psychotherapist, Anne Serry who provided a supporting letter with my plan review. I am an artist and find that continuing to practice art is the best way to maintain my mental health and motivation to engage in other activities. My art supplies were previously being funded by my NDIS plan.Art therapy has been proven to:Emotional Release: Art therapy allows individuals to express complex emotions and thoughts that may be difficult to articulate verbally, providing a healthy outlet for emotional release.Stress Reduction: Engaging in art-making activities has been shown to reduce stress levels and promote relaxation leading to improved mental health. This is a pivotal part of my mental health recovery and ask that this decision be looked at carefully, so that I am able to maintain my life. Before moving on to outline the evidence and relevant legislation, I note that Ms Duse’s previous plans did not specifically included funding for art supplies. Rather Mr Duse had been using his core funding for such purposes apparently based on advice from his Support Coordinator and that his Plan Manager had been approving such invoices apparently unaware that it was not approved funding.[2][2] Please see Ms Grace’s Response to Targeted questions (JTB 143).Evidence and Submissions

Ratio Decidendi

Legal Principle Established

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