Eastham and Chief Executive Officer of the National Disability Insurance Agency (NDIS)
[2025] ARTA 198
•3 March 2025
Eastham and Chief Executive Officer of the National Disability Insurance Agency (NDIS) [2025] ARTA 198 (3 March 2025)
Applicant/s: Lee Eastham
Respondent: Chief Executive Officer of the National Disability Insurance Agency
Tribunal Number: 2022/6815
Tribunal:Senior Member K Parker
Place:Melbourne
Date:3 March 2025
Decision:The Tribunal sets aside the Decision Under Review and remits this matter for reconsideration by the Respondent with a direction that it facilitates the approval of a new statement of participant supports (‘SOPS’) for the Applicant forming part of his NDIS plan, which includes provisions to approve funding for:
(a) to purchase the Mobility Scooter (and associated accessories and services) in the total sum of $7,333.80; and
(b) replication, on a pro rata basis, of all of the Applicant’s other existing supports as set out in his current SOPS.
The notional plan duration and plan management specifications in the new SOPS to be approved for the Applicant in accordance with the above direction, is to remain the same as set out in the Applicant’s current SOPS.
...............[SGD]..............
Senior Member K Parker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – plan review – adult participant – request for mobility scooter and associated accessories and services – several types of impairments and underlying medical conditions – some may not be impairments in relation to which the requirements under s 24 or s 25 of the National Disability Insurance Scheme Act 2013 (Cth) are met - interpretation of the notation to the “reasonable and necessary supports” criterion under s 34(1)(aa) of the National Disability Insurance Scheme Act 2024 (Cth) – whether the criterion under s 34(1)(f) is met - whether the mobility scooter is declared “an NDIS support” under Schedule 1 to the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 – whether the mobility scooter is declared “not an NDIS support” under Schedule 2 to those Rules – interpretation of described supports in both schedules – definition of “standard item” – whether mobility scooter is more appropriately provided under another general service system, rather than the NDIS – whether current recurring transport allowance should be replicated in any new plan – Tribunal sets aside the Decision Under Review and remits this matter to the NDIA with a direction that it facilitates the approval of a new statement of supports for the Applicant which includes funding for the mobility scooter and replicates all other existing supports
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) Act 2024 (Cth)NDIS Rules and Determination
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024National Disability Insurance Scheme (Old Framework Plans) Determination 2024
National Disability Insurance Scheme (Supports for Participants) Rules 2013Secondary Materials
Explanatory Memorandum, National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1)(NDIS Supports) Rules 2024 (Cth)Explanatory Memorandum, National Disability Insurance Scheme Bill 2012 (Cth)
Statement of Reasons
INTRODUCTION
This application was made by the Applicant, Mr Lee Eastham, who has been a participant in the National Disability Insurance Scheme (‘NDIS’) since August 2021.
Mr Eastham is aged 59 and lives in Castlemaine, Victoria. He was granted access to the NDIS on the basis of an impairment to his vision and hearing. He also claims to have physical and sensory impairments relating to several medical conditions affecting his lower back, neck, legs and hips. Mr Eastham says he experiences pain for which he will take analgesic medication. Mr Eastham previously suffered from obesity. He informed the Tribunal at the substantive hearing that he has been able to reduce his weight significantly as a result of an upper body exercise program. It was not apparent from the direct observations of Mr Eastham during the video hearing that he is currently obese. Mr Eastham has diabetes Type II. Based on Mr Eastham’s description of his impairments given orally at the substantive hearing, it is not apparent that this condition has given rise to any specific functional incapacity. He is still required to monitor his blood sugar levels on an ongoing basis.
The NDIS is administered by the National Disability Insurance Agency (‘NDIA’) under the provisions of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) and associated rules.
Mr Eastham lodged an application for review with the Administrative Appeals Tribunal (‘AAT’) on 23 August 2022 in relation to an internal review decision which was made by a delegate of the Chief Executive Officer (‘CEO’) of the NDIA under s 100 of the NDIS Act, in respect of an earlier decision to approve a statement of participant supports (‘SOPS’) forming part of his previous NDIS plan.
On 14 October 2024, the AAT became the Administrative Review Tribunal (‘this Tribunal’) following the abolition of the former AAT. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, applications for review to the AAT not finalised before 14 October 2024 are to be continued and finalised by this Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by this Tribunal. Neither party disputed that this Tribunal has the authority to deal with the present application.
By the time of the substantive hearing of this application, the support remaining in dispute between the parties was a mobility scooter requested by Mr Eastham as per a quotation issued on 14 March 2024 by Sharkey Shooters and Mobility for a Blazer Mobility Scooter (‘Blazer Quotation’). Specifically, Mr Eastham seeks funding in the sum of $7,333.80 to pay for this particular mobility scooter together with associated accessories and services (to be referred to collectively as the ‘Mobility Scooter’). If funding for the requested Mobility Scooter is not approved, Mr Eastham requests, in the alternative, an increase to his current level of NDIS recurring travel allowance which he is currently receiving as a fortnightly payment directly into his bank account (‘Recurring Transport Allowance’).
At the hearing, the NDIA contended that if the Tribunal were to make a decision which would result in a new SOPS being approved for Mr Eastham, that his current Recurring Transport Allowance should not be replicated in any new SOPS for Mr Eastham. The NDIA contended that this is a result of item 6 in the table in Schedule 1 to the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (‘Transitional NDIS Supports Rules’) and because Mr Eastham can use public transport (at least, insofar as that relates to him getting into and out of town).[1]
[1] Transcript, P-89.
The Tribunal has authority to undertake this review under s 18 of the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’), operating in conjunction with s 103 of the NDIS Act.
For the reasons set out below, the Tribunal is satisfied that the Mobility Scooter is a “reasonable and necessary support” for Mr Eastham under s 34(1) of the NDIS Act and should be funded under his NDIS plan. All existing supports and other aspects of Mr Eastham’s SOPS should be replicated, on a pro rata basis, in his new SOPS.
ISSUES
As mentioned above, the issues arising in this application are:
(a)whether the Mobility Scooter for Mr Eastham is a “reasonable and necessary support” under s 34(1) of the NDIS Act;
(b)if not, whether the increase in Mr Eastham’s Recurring Transport Allowance requested by Mr Eastham is a “reasonable and necessary support” under s 34(1) of the NDIS Act; and
(c)if the Tribunal’s decision results in a new SOPS being approved for Mr Eastham, whether the existing funding approved for the payment of the Recurring Transport Allowance should be removed as a support in any new SOPS for Mr Eastham.
LEGISLATIVE FRAMEWORK
Section 33(5) of the NDIS Act provides as follows:
(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; and
(g)have regard to whether section 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant.
Section 34(1) provides as follows:
(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:
(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 (see section 24) or the early intervention requirements (see section 25);
(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.
Note: For the purposes of paragraph (aa):
(a) the time at which the disability requirement or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b) a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
The Tribunal has considered the following NDIS rules and determination when make its decision in this application:
(a)National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘Supports Rules’);
(b)when considering the criterion under s 34(1)(aa) of the NDIS Act, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (‘Access Rules’);
(c)National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (‘Transition NDIS Supports Rules’); and
(d)National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (‘Miscellaneous Rules’).
EVIDENCE, SUBMISSIONS AND HEARING
In this proceeding, Mr Eastham was not legally represented. He was assisted at all stages by Ms Anna Fry who is a disability advocate and team leader from the Rights Information and Advocacy Centre. The NDIA was represented by Maddocks Lawyers, an NDIA internal lawyer and Mr Joshua Lessing of counsel.
On 2 September 2022, the NDIA lodged as set of documents with the Tribunal under s 37 of the now repealed Administrative Appeals Tribunal Act 1975 (‘T-Documents’).
When this matter was first lodged with the Tribunal, Mr Eastham requested funding for four different types of supports including:
(a)home modifications;
(b)increased hours of support coordination;
(c)funding for the Mobility Scooter; and
(d)additional transport funding (that is, an increase to his Recurring Transport Allowance).
On 14 November 2023, Ms Fry wrote the Tribunal to advise that Mr Eastham’s home modifications were complete. She also informed the Tribunal that Mr Eastham’s support coordinator had advised that he has “sufficient support coordination funding to meet his disability needs”. Ms Fry clarified that the only additional support Mr Eastham required to assist with his mobility and daily living is the Mobility Scooter. Ms Fry indicated that if funding for the Mobility Scooter was provided, Mr Eastham would not seek any increase to his Recurring Transport Allowance. This letter also contains some submissions by Ms Fry as to why funding for the Mobility Scooter for Mr Eastham should be approved (‘Mr Eastham’s Submissions’).
The NDIA contends that the Mobility Scooter is not a “reasonable and necessary support” under s 34(1) of the NDIS Act. The NDIA considers that Mr Eastham requires the Mobility Scooter as a result of his claimed physical impairments and that he was only granted access to the NDIS on the basis of his vision and hearing impairments. The NDIA does not consider Mr Eastham’s claimed physical impairments to be permanent because it contended that there are various treatments (including surgery) which could be undertaken by Mr Eastham likely to remedy his conditions.
On 8 May 2024, this matter was first listed before the Tribunal (as presently constituted) for a directions hearing. Procedural directions were made for the parties to lodge their respective evidence and submissions and the matter was referred by the Tribunal to Registry to be listed for a substantive hearing. It was subsequently constituted to the Tribunal (as presently constituted) in June 2024.
On 30 September 2024, the NDIA lodged with the Tribunal and gave to Mr Eastham a hearing tender bundle totalling 336 pages (‘NDIA’s HTB’) and its Statement of Facts, Issues and Contentions (‘NDIA’s SFIC’).[2]
[2] NDIA’s Updated HTB, Doc.A1.
The NDIA legislative framework in relation to the review of NDIS plans underwent significant amendment on 3 October 2024 following the enactment of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024.
The Tribunal requested that the Registry of the Tribunal write to the parties to request that they address the impacts of those amendments in their respective submissions.
On 10 October 2024, Mr Eastham lodged his Statement of Facts, Issues and Contentions (‘Mr Eastham’s SFIC’).[3]
[3] NDIA’s Updated HTB, Doc. A3.
On 25 October 2024, the NDIA prepared and lodged an updated HTB with the Tribunal (‘NDIA’s Updated HTB’). The NDIA’s Updated HTB comprises 500 pages and contained updated legislation and rules. The NDIA’s Updated HTB included a supplementary SFIC dated 25 October 2024, which was prepared by Mr Lessing on behalf of the NDIA (‘NDIA’s Supplementary SFIC’). In the NDIA’s Supplementary SFIC, the NDIA stated that it relied upon the submissions in the NDIA’s SFIC.[4]
[4] NDIA’s Supplementary SFIC, [12].
The NDIA contends that Mr Eastham’s current NDIS plan is an “old framework plan” as defined by the NDIS Act (following the recent amendments) and that item 129 of the Amending Act provides that the new provisions will apply to Mr Eastham’s NDIS plan and previous further “old framework plans”. The NDIA contends that the Tribunal cannot make a decision to vary or approve a new SOPS for Mr Eastham without necessarily applying s 34(1) criteria, as amended on 3 October 2024, as part of its consideration. The Tribunal accepts this contention and this proposition was not challenged by Ms Fry or Mr Eastham.
The Tribunal has received the T-Documents and the NDIA’s Updated HTB into evidence in this proceeding (and will disregard the evidence in the NDIA’s HTB).
On 8 November 2024, ahead of the substantive hearing, the NDIA lodged the following new evidence with the Tribunal:
(a)a bus timetable for Route 2 from Castlemaine to Castlemaine Hospital issued by Public Transport Victoria; and
(b)map downloaded from Google Maps showing the route from Mr Eastham’s home to Maxi IGA in Castlemaine.
The Tribunal has accepted those additional documents into evidence in this proceeding.
The substantive hearing of this application took place on 11 November 2024.
The following witnesses were called to give oral evidence at the hearing:
(a)Mr Eastham, who had lodged with the Tribunal an (undated) Statement of Lived Experience (‘Mr Eastham’s SLE’);[5]
[5] NDIA’s Updated HTB,
(b)Ms Ellie Williams, Occupational Therapist, who issued:
(i)a home modification report dated 14 December 2020;[6]
(ii)a letter dated 15 December 2021;[7]
(iii)a letter dated 17 December 2021;[8]
(iv)a completed NDIS proforma “Assessment Template – General Assistive Technology Form” (‘Ms Williams’ AT Report’);[9] and
(v)a letter dated 2 October 2022;[10]
(c)Mr Dylan Crabbe, Physiotherapist, who issued a letter dated 5 September 2023 which was lodged with the Tribunal (‘Mr Crabbe’s Letter’);[11] and
(d)Dr Anna Fry.
[6] T-Documents, T3.
[7] T-Documents, T6.
[8] Ibid, T7.
[9] NDIA’s Updated HTB, Doc. B1.
[10] Ibid, Doc. B5.
[11] Ibid, Doc. B8.
On 14 November 2024, after the substantive hearing, Ms Fry sent a letter to the Tribunal and the NDIA (‘Ms Fry’s 14 November 2024 Letter’). On 18 November 2024, the NDIA lodged a further written submission with the Tribunal in response to Mr Eastham’s enquiries about the community bus services (‘NDIA’s Further Submission’).
On 22 November 2024, Ms Fry, on behalf of Mr Eastham, lodged a further short written submission with the Tribunal (‘Mr Eastham’s Further Submission’) about the Maldon community transport services and she attached a brochure entitled “Community Transport Service” issued by the Maldon Neighbourhood Centre, which has been received into evidence in this proceeding.
BACKGROUND AND MR EASTHAM’S EVIDENCE
Mr Eastham’s NDIS plan history
Mr Eastham seeks review of a decision by a delegate of the CEO of the NDIA made on 10 August 2022 under s 100(6) of the NDIS Act (‘Internal Review Decision’),[12] which confirmed an earlier decision by a different delegate of the CEO made on 6 June 2022 to approve a SOPS forming part of a notional one-year NDIS plan for Mr Eastham (‘First SOPS’).[13]
[12] T-Documents, T1A & T2.
[13] Ibid, T5/66 & 67.
On 14 September 2023, a delegate of the NDIA approved a subsequent SOPS for Mr Eastham which commenced on 6 June 2022 with a reassessment date of 6 June 2024 (‘Second SOPS’).
In an email sent by the NDIA to the Registry of the Tribunal and Mr Eastham on 31 January 2025, the NDIA stated that the “current plan period of 6 June 2024 to 6 June 2025 occurred as a result of an auto-extension.” The Tribunal notes that the NDIS Act does not contain any provisions allowing for the NDIA to “auto-extend” a SOPS. In this case, the Tribunal will treat the auto-extension as tantamount to a further decision by a delegate of the CEO to approve a subsequent one-year SOPS for Mr Eastham (“Current SOPS”). The reassessment date of the Current SOPS is 6 June 2025.
Pursuant to s 103(2) of the NDIS Act, the three decisions under review (‘Decisions Under Review’) in this proceeding include:
(a)the Internal Review Decision;
(b)the decision to approve the Second SOPS; and
(c)the deemed decision to approve the Current SOPS.[14]
[14] The Tribunal’s decision in this application would be same irrespective of whether the Tribunal treated the “auto-extend” as a deemed decision or not.
Mr Eastham’s circumstances and his reasons for requesting the Mobility Scooter
In Mr Eastham’s SLE, he stated that:
(a)due to his vision impairment, he is no longer able to drive a car and does not possess a driver’s licence. He stated that this impacts him greatly and he feels that he has lost his sense of independence;[15]
[15] NDIA’s Updated SFIC, Doc. B11/98.
(b)he lives in a rural Victorian town, Castlemaine, which he says leaves him “at a significant disadvantage due to the very limited options for, and availability of public transport”;[16]
[16] Ibid.
(c)there are “virtually” only two bus services every few days with one going at 7am and the other returning at 6pm;[17]
(d)if he has a mobility scooter, he will be able to access the community and the centre of the Castlemaine township independently, and at his own pace. He stated that he would not need to rely upon a support worker. He also stated he would not need to exhaust his “already limited taxi funding”. The Tribunal understands this to be a reference to Mr Eastham’s current Recurring Transport Allowance;
(e)he cannot walk the distance to town;
(f)in the timetable provided by him outlining his “transport requirements” in a “typical week”, it shows that he attended town almost every day and sometimes, more than once a day;
(g)he as an active member of his community and that he enjoys volunteering with the “SES”. He stated he likes to be around other people and enjoys feeling a part of the community. Mr Eastham stated that he will often feel isolated when he cannot get into town;
(h)a return trip to the town centre costs around $20 by taxi. He said he will use his funding “very quickly” if he uses a taxi every day. He said the public bus has a very limited timetable, only running early in the morning and late in the afternoons. He stated those times are not practical and he does not want to be in town so early and to stay there for “some 11 hours”;
(i)he would benefit from a scooter for attending his quarterly appointments at the Eye and Ear Hospital in Melbourne. He asserted that he has severe difficulty managing the tram services in the city and that he often loses his way. He stated that it would, then, take much longer to reach his destination;
(j)he would be able to take a scooter on the V-Line train and could reach the Hospital without needing to catch a tram. He stated he would also not need to have a support worker to assist him on those days;
(k)his eyesight is “not good enough” to allow him to safely drive a car. He stated he is confident that a scooter would be safe for him because he will be travelling slowly enough to navigate his way around local streets. He stated that it would be “lifechanging” for him; and
(l)one of his NDIS goals is “to get out an[d] about independently”, and given that he is unable to drive, “virtually”, he has no options to do so via public transport. He stated he is certain that a mobility scooter will help him to reach this goal and to mobilise around his local town independently. He considers that it would “save the NDIA money” as he will not need to rely upon transport funding. He considers it is directly linked to his disability because his licence was revoked due to his vision impairment.[18]
[17] Ibid.
[18] Ibid, Doc. B12/99.
Mr Eastham’s NDIS goals and current funded NDIS supports
In Mr Eastham’s Current SOPS, his stated goals are set out below:
(a)“I would like to feel confident getting around unfamiliar environments and improve my mobility skills so I can do this independently”;
(b)“I would like to be assisted to access the community so I can continue to support my family”;
(c)“I would like to be able to use technology more confidently, so that I can access important information and be more independent in day to day life”;
(d)“I would like to maintain my home and yard”;
(e)“I would like to access all areas of my home safely and independently”.
In Mr Eastham’s Current SOPS, he is funded for:
(a)$17,862.80 per annum for “core supports”, of which $1,784.00 is described as follows:
Transport
Support to access work or travel to participate in social and community activities
My Transport funding will be: paid as fortnightly instalments into my nominate bank account
(b)$5,819.70 per annum for “capacity building supports” comprising:
(i)$1,485.75 per annum for financial intermediary set up costs and monthly processing fees for his plan manager to manage his plan;
(ii)$5,819.70 per annum for allied health assessments and ongoing therapy;
(iii)$1,403.36 per annum for 24 hours of support coordination (Level 2).
Mr Eastham’s further evidence given orally at the hearing
At the hearing, Mr Eastham gave evidence that he has sores and blood clots in the veins of his legs, which he described as being “vascular problems”. He said they had arisen “from COVID”. He says this condition has impacted his capacity for walking. He said he is on a waiting list at Bendigo Health to have surgery on his legs. Mr Eastham said that one of the reasons he is unable to walk from his home to the bus stop is due to the blood clots in his legs. Mr Lessing asked Mr Eastham if the blood clots stopped him from walking to the bus stops with breaks, and he responded, “Yes, and that’s what’s stopping me”.[19]
[19] Transcript, P-34, P-35 & P-41.
When pressed further by Mr Lessing during cross-examination, Mr Eastham said that he was able to walk to the bus stop but he would require three rest breaks for about 10 to 15 minutes each time. Mr Lessing asked Mr Eastham if a four-wheeled walker with a seat and basket on it would help him to get the bus, so that he could take rest breaks when he needed it and use the basket to carry items in it. Mr Eastham said that he could not use a walking frame because of the terrain and because the footpaths are not even. He said they are on a steep angle in some places and a pedestrian has to go onto the road to walk around them and in other parts, there are no footpaths. Mr Eastham said they are dirt, very rough, and there “are rocks everywhere”. He said, “you’d probably end up falling over”.
Mr Eastham claimed that the local bus ran to an infrequent timetable and at times which were inconvenient to him. He said he is worried about getting stuck in town and not being able to get home if he gets a migraine (see more detail about this below). The relevant bus timetables indicate there would appear to be reasonably regular bus services running on the relevant route from Mondays through to Friday, but they do not run in the evenings or over the weekends or on public holidays.
Mr Eastham said he has a lower back problem and that he cannot carry too much weight. Mr Eastham also has osteoarthritis in his hips. He said he suffers from migraines. Mr Eastham gave evidence that he takes Targin (which the Tribunal notes is an opioid‑based analgesic containing oxycodone) for the issues with his back, hips, and migraines. Mr Eastham said he has weaned down from 30mg to 5mg of Targin, so he is “going through a bit more pain”, but he says he “is clearer in his head”. He said his new doctor has recommended that he take more of this medication but he has refused to do so. When Mr Eastham was asked if he was taking any other mediation, in substitution for the Targin, during the transition, he said is also taking Panadeine Forte (two tablets in the morning and two tablets at night, for the last four years) and Tramadol (for the last four years). He said “they” were going to wean him off those medications too. He says he takes Phenergan at night and anti-vomiting medication for his migraines.[20]
[20] Ibid, P-42.
Mr Eastham said he cannot catch the bus in the morning because his pain medications “don’t kick in” until 10.30am and that he is unable to get out of bed until this time.[21]
[21] Ibid, P-32.
Mr Eastham said he had been to see “lots of specialists” about his migraines. He said that he has had migraines “all of his life” and that “when they get really bad sometimes, he has to go to hospital in an ambulance”.[22] He said he has tried using “beta-blockers” but they do not help. He said that “sometimes” when he gets a “really bad one”, he would get “very nauseous so [he’s] sick a lot”, and that he also loses his balance. He says if he wakes up with a migraine, he will “be in bed for the day” and will suck on ice.
[22] Ibid, P-44.
When asked about the frequency of his migraines, Mr Eastham indicated that he had 15 per month, on average.[23] He confirmed the intensity of them will vary and that the “really bad ones” would only occur about once a month. He said he can manage the other ones he gets, which he said is about one every second day.[24]
[23] Ibid.
[24] Ibid, P-44 & P-45.
CONSIDERATION
The Tribunal must be satisfied that all of the seven mandatory criteria under s 34(1) of the NDIS Act are met and that the exclusion under Rule 5.1(a) of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘Support Rules’) does not apply, before being able to conclude that the Mobility Scooter is a “reasonable and necessary support” for Mr Eastham under s 34(1) of the NDIS Act.
The criteria under contention at the hearing included those arising under subsections 34(1)(aa), (f), (c), (d) and (e), and also whether the exclusion under Rule 5.1(a) applies. Accordingly, the Tribunal will decide, first, whether those criteria are met and when the exclusion under Rule 5.1(a) applies, and if so, will then consider the uncontested remaining criteria under subsection 34(1)(a) and (b).
Excluded support under Rule 5.1(a) of the Support Rules
Rule 5.1(a) of the Support Rules provides that a support will not be funded under the NDIS if it is likely to cause harm to the participant or it poses a risk to others.
The NDIA contends that a mobility scooter is likely to cause harm to Mr Eastham, based on various statements made by Ms Amanda Hale, Orientation and Mobility Specialist, in her Functional Vision and Mobility Assessment Report in respect of Mr Eastham, dated 11 November 2021 (‘Ms Hale’s Report’).
In Ms Hale’s Report, she stated that Mr Eastham’s right eye compensates for his left eye (which is nearly blind). Ms Hale stated that Mr Eastham does not have full vision. Ms Hale stated that his depth perception is decreased and he is able to differentiate between colours but has difficulty with shades of colour and finds it difficult to see white cars. Ms Hale was not called as a witness at the hearing.
Mr Eastham refutes that it would pose a risk to him or others if he were to use a mobility scooter. He says that it is safe for him to do so and that when doing so, he travels slowly. At the hearing, Mr Lessing informed the Tribunal that the maximum speed that a mobility scooter is permitted to travel, while being used in the community, is 10km per hour.
In response to the NDIA’s contentions in relation to Rule 5.1(a), Mr Eastham presented a letter from an ophthalmologist, Dr Michael Jamieson, dated 30 September 2024 (‘Dr Jamieson’s Report’). Dr Jamieson opines that Mr Eastham can safely operate a mobility scooter.
In Ms Hale’s Report, she made several observations following a trial that Mr Eastham undertook using a mobility scooter. Ms Hale stated that Mr Eastham:
(a)was able to control the speed of the scooter accurately;
(b)was able to see the group and slope of a ramp; and
(c)had observed traffic and made safe decisions while crossing the road and operating the scooter on the road when no footpath was available.
The NDIA contends that the results of Ms Hale’s Report were “inconclusive” as to whether Mr Eastham could operate a mobility scooter safely in public. The Tribunal does not agree with this characterisation of Ms Hale’s Report but rather considers that observations made by her about Mr Eastham’s ability to use a mobility scooter demonstrated that he was proficient whilst doing so.
The NDIA also referred to the findings from an audiologist report dated 19 March 2024 which reported that while Mr Eastham has “good discrimination with amplification”, he experiences “moderate-to-severe sensorineural loss” in the left ear and “moderate sensorineural hearing loss” in the right ear.
The Tribunal notes that in Ms Hale’s Report, she stated that Mr Eastham “had used his hearing well to identify traffic at a safe distance”. She noted that he did not wear his hearing aids because he found them to be uncomfortable.
In light of Ms Hale’s statements, and in particular her observations as set out in paragraphs [51] and [54], combined with Dr Jamieson’s opinion that Mr Eastham can safely operate a mobility scooter as referred to above in paragraph [53], as well as Mr Eastham’s evidence that he will travel slowly on the mobility scooter (which will be necessary for him to comply with the applicable speed limit), the Tribunal finds, on the balance of probabilities, that the provision of a mobility scooter to Mr Eastham would not pose a risk of harm to him or to others in the community, including other pedestrians or motorists.
For this reason, the Tribunal concludes that a Mobility Scooter is not excluded as a support for Mr Eastham by reason of Rule 5.1(a) of the Support Rules being applicable to Mr Eastham. The Tribunal concludes that Rule 5.1(a) does not apply in respect of the provision of funding for Mobility Scooter to Mr Eastham.
Criterion under s 34(1)(aa)
The recent amendments to s 34(1) of the NDIS Act introduced a new mandatory criterion under s 34(1)(aa) which requires the Tribunal to be satisfied that the requested Mobility Scooter is “necessary to address needs” of Mr Eastham “arising from an impairment in relation to which” he meets either the disability requirements under s 24 or the early intervention requirements under s 25 of the NDIS Act.
Section 34(1)(aa) has a notation attached to it (found at the base of s 34(1)) which states as follows (emphasis added):
(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b)a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
The NDIA contends that Mr Eastham has not demonstrated that the Mobility Scooter is necessary to address his needs arising from his impairments. Primarily, the NDIA contends that the Mobility Scooter is not necessary because:
(a)the Tribunal should find that Mr Eastham is capable of walking to and from the local bus stop which is 1.1 km (one way) from his home;
(b)Mr Eastham is capable of riding on a bus;
(c)there is a local bus service running to and from Castlemaine, which Mr Eastham can catch; and
(d)this bus service is not “infrequent”, as asserted by Mr Eastham.
The NDIA further contends, in the alternative, that insofar as Mr Eastham has a need for a mobility scooter to travel into town and back, it arises from his physical impairments and not from the vision and hearing impairments for which he has received access to the NDIS.[25] The NDIA contends that Mr Eastham’s physical impairments are not permanent because there are treatments he could have to remedy them, and for this reason, he does not meet the requirements under s 24 or s 25 of the NDIS Act in respect of them. The NDIA contends that, consequently, Mr Eastham does not satisfy the criterion under s 34(1)(aa).
[25] Transcript, P-90.
It was not in contention between the parties that Mr Eastham lives with the following impairments:
(a)vision impairment;
(b)hearing impairment;
(c)physical impairments attributable to medical conditions affecting his back, neck and hips; and
(d)sensory impairments attributable to pain and a loss of feeling and numbness in his medial thigh due to medical conditions affecting his back, neck and hips.
In relation to the physical and sensory impairments, the NDIA acknowledges that Mr Eastham has been diagnosed with C3/4disc disease, degenerative disease of the lumbosacral spine and osteoarthritis of the lower back and hip joints attributable to impairments within the meaning of s 24(1)(a) of the NDIS Act.[26] Specifically, the NDIA accepted that Mr Eastham lives with:[27]
[26] NDIA’s Supplementary SFIC, [32].
[27] Ibid, [33].
33.1 physical impairments attributable to the following:
33.1.1the structure and function of the C3/4 facet joint, lumbosacral spine and lower back and hip joint, resulting in difficulty mobilising, poor balance and coordination and decrease range of motion; and
33.2 sensory impairments attributable to the following:
33.2.1a pain function related to C3/4 disc disease, degenerative disease of the lumbosacral spine and osteoarthritis of the lower back and hip joints;
33.2.2a loss of feeling and numbness in medial thigh related to C3/4 disc disease, degenerative disease of the lumbosacral spine and osteoarthritis of the lower back and hip joints.
It also came to light during the hearing, as outlined above, that Mr Eastham suffers from regular migraines, most of which he says he can manage, but that he will have a severe migraine about once a month.
As revealed at the substantive hearing, Mr Eastham’s physical and sensory impairments are also due to a current vascular leg condition causing blood clots and development of painful sores on his legs, for which he is awaiting surgery.
Mr Eastham contends that all of his impairments are permanent. The NDIA disagrees and accepts that only the first two impairments relating to his vision and hearing are permanent, and that the remaining physical and sensory impairments are not permanent. For an impairment of an adult participant to meet the requirements under either s 24 or s 25 of the NDIS Act, they must be permanent, or likely to be so (see subsection 24(1)(b) and subsection 25(1)(a) of the NDIS Act).
The NDIA contends that there are available treatments for Mr Eastham’s physical and sensory impairments which he has not yet undertaken. For this reason, the NDIA contends that the Tribunal cannot be satisfied that Mr Eastham’s physical and sensory impairments are, or are likely to be, permanent, being one of the mandatory criteria necessary for Mr Eastham to meet either the disability requirements under s 24 or the early intervention requirements under s 25 of the NDIS Act, in respect of those impairments.
As mentioned above, Mr Eastham asserts that his need for a Mobility Scooter arises from his vision and hearing impairments because they have caused him to be unable to obtain and hold a driver’s licence (being the reason he cannot drive a car as a means of transport, rather than travelling by the use of a Mobility Scooter). Mr Eastham contends that because of this, it does not matter whether his other impairments are, or are likely to be, permanent.
Is the Mobility Scooter necessary?
The Tribunal will deal with the NDIA’s primary contention that a Mobility Scooter is not necessary, because it asserts that Mr Eastham can travel by foot and by catching the local bus into town and home again.
When questioned about this at the hearing, Mr Eastham conceded that he could probably walk to the bus stop, provided he took three 10 to 15 minute-long rest breaks over the course of this journey. However, he said he would be unable to catch a morning bus for the first part of the morning because he needs to wait for his pain medication to take effect for the first part of the morning. Mr Eastham complained that he is not able to carry groceries due to his lower back problems if he was travelling by foot. He said that if he used a Mobility Scooter, he would be able to transport such items with him in the carry basket on the scooter. He also said that if a migraine came on while he was making this journey, or while he was in town, he could use his Mobility Scooter to transport him home immediately, rather than needing to wait for the next bus to arrive. Mr Eastham gave evidence that his local bus service ran infrequently and that it does not run on the weekends, public holidays or in the evenings, so he would be unable to travel into town and back during those times.
The NDIA referred the Tribunal to the bus timetables for the relevant service. The NDIA contends that the bus service runs more frequently than Mr Eastham has understood to be the case.
The Tribunal considers that the local bus does not provide a full bus service in that it does not run in the evenings, or on public holidays, or on the weekends. This significantly limits the times during which Mr Eastham is able to use this service to transport him into and out of town, even if he is capable of getting to and from the bus stop independently and getting on and off and able to ride on the bus.
Mr Lessing suggested that on these journeys by foot, Mr Eastham could use a four-wheeler walker which has a seat and a basket attached to it. Mr Lessing said that Mr Eastham would have somewhere to sit down, when he needs a rest break, and somewhere to place his groceries, so he does not have to carry them.
In relation to the groceries, Mr Lessing asked questions of Mr Eastham at the hearing as to whether, as an alternative, he might use online shopping services. Mr Eastham gave evidence that he does not “do online stuff” and the only thing he does “online” is to ask his son to help him to order a DVD. He said it is difficult for him because of the brightness of the computer screen. Ms Fry added that Mr Eastham enjoyed the social aspects of going shopping in his community.
At the hearing, Mr Crabbe, Physiotherapist, agreed with a general proposition put to him by Mr Lessing that if a person is deconditioned, the “amount of chronic load they can tolerate becomes very small” so they need to “reacclimate to any sort of loading”. Mr Crabbe said that during this period, they can have exacerbations of their symptoms or experience new ones, because the tissues have not been “loaded specifically for so long”.[28]
[28] Transcript, P-73.
At the hearing, Mr Lessing contended that based on the evidence, Mr Eastham could use public transport to get into town.[29] Mr Lessing referred to the opinion of Dr Jameson arising from his report which indicates that Mr Eastham’s mobility was “relatively unaffected” by his visual impairment.[30] Mr Jameson was not called as a witness in this proceeding and so there was no opportunity to question him about the context within which he provided this opinion. The Tribunal is cautious about drawing any conclusions from it in the context of this proceeding.
[29] Ibid, P-91.
[30] Ibid, P-90.
Mr Eastham has given forthright and direct evidence in this proceeding about what he can do and the limitations on what he can do. The Tribunal found Mr Eastham to be a credible witness and accepts his account about these matters. The Tribunal is satisfied from this evidence that Mr Eastham’s ability to travel into town and back again on foot for part of the journey and by using the local bus, for the other part of the journey, is significantly impaired. The Tribunal does not accept the NDIS’s contention that Mr Eastham is able to make those trips. The Tribunal accepts Mr Eastham’s evidence about the likely difficulties he would have doing so and the resulting pain it may cause to him. The Tribunal is also mindful of Mr Crabbe’s evidence that if the degree of physical activity of a person who is deconditioned extends beyond their capacity, it may give rise to exacerbations. The Tribunal considers that this may apply to Mr Eastham if he is required to walk long distances on a frequent basis such as the 1.1 km journey on foot from his home to the local bus stop and the same on the return journey, and at times, whilst carrying items. The Tribunal considers that Mr Crabbe was highlighting the importance of such activities being appropriately graduated over time while a person who is deconditioned slowly endeavours to rebuild their condition and strength.
The Tribunal accepts Mr Eastham’s evidence about why he says he would find it difficult to travel by foot to and from his house to the local bus stop and that he is unable to carry any weighty items, such as groceries, when doing so. The Tribunal finds he would have substantial difficulty making those journeys by foot and by bus.
Mr Lessing accepted that if Mr Eastham did not have a visual impairment, he would be able to obtain a car and driver’s licence and travel into town by car.[31]
[31] Ibid.
Interpretation of the notation to the criterion under s 34(1)(aa)
An issue arose in this matter about how s 34(1)(aa) should be interpreted in light of the notation at the base of s 34(1), as set out in paragraph [61] above.
Mr Lessing submitted that this notation “makes it clear that the focus in on the impairments that satisfy sections 24, 25, environment factors can’t be determinative, and in this particular case, the environmental factor being the distance from town is not a fact that is determined or implicated by the visual impairment. It’s a factor that would be common to anybody in a regional setting…”.[32]
[32] Ibid.
The Tribunal finds that there are substantial limitations on the availability of the local bus service which means Mr Eastham is unable to make those trips due to his various impairments during the nights, on public holidays and over the weekends. This is a substantial restriction.
The Tribunal considers that it is permitted to take this factor into account as it is an “environmental factor” within the meaning of subparagraph (b) of the notation to subsection 34(1)(aa) of the NDIS Act, provided that it is satisfied that the necessity of this support arises from an impairment in relation to which he meets s 24 or s 25, even if it also arises due to an impairment which does not meet those requirements.
Mr Lessing subsequently clarified that there is “no doubt that environmental factors can be taken into account” but that the focus is on the “primary impairments, to use that term, being the ones that meet section 24 and 25” and that this “means that the environmental factors really should be seen as the ones where the need – and this is really a mode of transport into town, specifically the public transport – are directly connected to the impairment that satisfied section 24 and 25”.[33] Mr Lessing submitted that in Mr Eastham’s case, “there is a way into town that is entirely common to many people in regional settings, which is public transport, and the reason he can’t impact [sic] it is because of his secondary physical disabilities”.[34]
[33] Ibid, P-92.
[34] Ibid, P-92.
At the hearing, Mr Lessing made oral submissions about the Explanatory Memorandum, National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth) (‘Explanatory Memorandum’). This document was provided to Mr Eastham at the end of the hearing and the Tribunal gave Mr Eastham an opportunity to consider and respond to it after the hearing.
Mr Lessing highlighted the following paragraphs of the Explanatory Memorandum in the context of NDIS supports generally, and the definition in s 10:[35]
The definition will provide greater clarity around the supports that can be funded by the NDIS and those that cannot. The approach is consistent with the original intention of the Scheme to provide supports to people with significant and permanent disability and people who are in need of early intervention supports.
…
In the current planning framework (now known as the ‘old framework’), the definition of NDIS support clarifies the boundaries of what supports are reasonable and necessary under section 34 of the NDIS Act.
…
In addition to clarifying what is and is not appropriately funded by the NDIS, the concept of NDIS support reinforces the constitutional basis for the NDIS, which is necessary for new framework (budget based) plans.
[35] Ibid, P-93 and 2024 Explanatory Memorandum, pages 2 and 3.
Mr Lessing submitted that the key point is “the acknowledgment that the approach is designed to achieve the objective of providing supports to people with significant and permanent disability, which one can appreciate is a reference to the requirement of permanency in section 24 of the NDIS Act, and then separately, people in need of early intervention supports”.[36]
[36] Transcript, P-93.
In the NDIA’s Supplementary SFIC, the NDIA contended that for Mr Eastham to maintain his request for the Mobility Scooter, he must demonstrate that the support relates to his hearing and/or vision impairment which the NDIA states currently satisfies the disability requirements under s 24 of the NDIS Act, or that the Mobility Scooter relates to other impairments, such as his physical impairments, which he must also demonstrate satisfy the disability or early intervention requirements.[37]
[37] NDIA’s Supplementary SFIC, [27].
Firstly, the Tribunal does not consider that Mr Eastham is required to establish that the support is necessary to meet the needs of one type of impairment over another, as contended by Mr Lessing. It is possible that the support may be necessary to address the needs of a combination of different types of impairments.
Secondly, the Tribunal does not agree that Mr Eastham is required to demonstrate that his “hearing and/or vision impairments” and his “physical impairments” both meet the requirements under s 24 and s 25. Instead, the Tribunal considers that where a support is necessary to address a participant’s need for a support arising from a combination of more than one impairment and provided that one of those impairments is an impairment in relation to which Mr Eastham would meet the requirements in s 24 and s 25 (even if the other impairment/s do not), Mr Eastham will have satisfied the criterion under s 34(1)(aa).
In Mr Eastham’s case, the Tribunal finds that the Mobility Scooter is necessary to meet his needs arising from a combination of his vision impairment and physical and sensory impairments.
Specifically, the Tribunal finds that Mr Eastham’s need for a mobility scooter arises from his vision impairment as this impairment prevents him from holding a drivers’ licence and from driving a car to make the journey into town and home again. The NDIA has accepted that Mr Eastham’s vision impairment meets the requirements under s 24 of the NDIS Act. It was on the basis of this impairment that he was assessed as being eligible to be granted access to the NDIS. The Tribunal finds that the Mobility Scooter is necessary to address Mr Eastham’s needs which also arise from his physical and sensory impairments, because the Tribunal accepts Mr Eastham’s evidence and has found that he would experience substantial difficulty if required to walk to make these frequent journeys to the bus stop and back from his home or to carry items such as groceries while doing so, or at least not without experiencing pain as a consequence. Those impairments also prevent Mr Eastham from being able to walk the entire distance into town during a time when the bus service is not running at nights, on weekends or on public holidays. Further, Mr Eastham is unable to make the journey by foot to his local bus stop at times when his pain medications have not taken effect.
There was no dispute between the parties that Mr Eastham’s visual impairments prevent him from obtaining a drivers’ licence to be able to drive as a means of transportation.
As stated above, the Tribunal considers that the notation to s 34(1)(aa) conveys that the criterion under s 34(1)(aa) will still be met, even if the support is necessary to address needs of Mr Eastham arising from an impairment which does not satisfy the requirements s 24 or s 25, provided that it can be shown that the support is necessary to address needs of Mr Eastham arising from an impairment which does satisfy the requirements under either s 24 or s 25.
The Tribunal concludes that this situation arises in respect of Mr Eastham because even though one of the reasons he cannot travel independently into town or to the bus stop, whether that be on foot or by car, arises from his physical and sensory impairments, the Tribunal accepts that there was evidence before it which might lead to a conclusion that Mr Eastham has not undertaken all available treatments and so the impairments may not, or may not be likely to be, permanent, and consequently, may not satisfy the s 24 or s 25 requirements. Even if the Tribunal were to make such findings, the Tribunal finds that Mr Eastham lacks capacity to undertake such travel by car from his home into town or at least to the bus stop and back because he is prevented from getting a driver’s licence due to his vision-related impairments, which do meet the requirements under s 24. In this regard, the Tribunal considers that the notation in subparagraph (b) in respect of s 34(1)(aa) of the NDIS Act is applicable to Mr Eastham’s circumstances.
Further, the Tribunal considers that it is able to take into account the “environment factors” such as the distance between Mr Eastham’s home and the closest bus stop being 1.1 km. The Tribunal is satisfied that this is a distance which Mr Eastham would experience substantial difficultly if he were to regularly traverse that distance on foot due to his physical and sensory impairments, and he is otherwise unable to traverse that distance by car due to his vision-related impairments which prevent him from obtaining a drivers’ licence.
The Tribunal concludes that s 34(1)(aa), interpreted in light of the notation to this provision, is met in respect of the provision of funding to Mr Eastham to purchase the Mobility Scooter.
Criterion under s 34(1)(f)
By reason of the amendment to the criterion under s 34(1)(f), the Mobility Scooter will also need to be an “NDIS support” as defined under s 10 of the NDIS Act. Section 10(1) provides that a support will be an “NDIS support” if it is declared by “National Disability Insurance Scheme rules” made for the purposes of this subsection to be an NDIS support. This is a reference to the new National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (‘Transitional NDIS Supports Rules’). Schedule 1 sets out a list of supports which are “NDIS supports”. Schedule 2 sets out a list of supports which are “not NDIS supports”.
The Tribunal will also need to consider whether the Mobility Scooter is most appropriately funded under the NDIS or more appropriately funded under some other general service system, being the second limb still required to be examined under s 34(1)(f) at the present time by reason of the provisions of the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024.
Is the Mobility Scooter an “NDIS support”?
By the end of the hearing of this matter, there was an issue in contention between the NDIA and Mr Eastham as to whether the Mobility Scooter is an NDIS support under s 10 of the NDIS Act, for the purpose of assessing whether the first limb of the criteria under s 34(1)(f) has been satisfied.
Mr Lessing contended, on behalf of the NDIA, that the Transitional NDIS Supports Rules have been developed for the purpose of establishing what is an NDIS support, and what is not, for the purpose of s 10 of the NDIS Act and therefore, s 34(1)(f).[38] Mr Lessing contended that the Explanatory Memorandum provides “helpful guidance” about “the rationale and intent behind NDIS supports”.
[38] Transcript, P-18.
During closing submissions, Mr Lessing referred the Tribunal to the following statements in the Explanatory Memorandum about the definition in s 10 of the NDIS Act (as highlighted in bold below):[39]
[39] Explanatory Memorandum, page 2.
Purpose of NDIS supports
As noted above, one of the key changes made by the Amending Act was to insert a new concept of ‘NDIS support’ into the NDIS Act. This concept of NDIS support appears in numerous places throughout the Amending Act and is central to the operation of the future of the NDIS in a number of ways.
The definition will provide greater clarity around the supports that can be funded by the NDIS and those that cannot. This approach is consistent with the original intention of the Scheme to provide supports to people with significant and permanent disability and people who are in need of early intervention supports. It is also consistent with the recommendations of the NDIS Review in that it focuses on the needs of a participant, rather than a diagnosis.
For the sake of consistency and simplicity across the entirety of the NDIS Act, the concept has been adopted in key areas, particularly where references to supports being appropriately funded by the NDIS already existed. Most critically, these include:
• section 34: This section deals with reasonable and necessary supports for old framework plans. A new requirement was inserted that a reasonable and necessary support must be an NDIS support.
• section 46: This section was repealed and replaced so that NDIS amounts can only be spent on supports that are NDIS supports.
Defining NDIS supports will make it easier for participants and other members of the disability community to identify what is appropriately funded by the NDIS, and what NDIS funding can be used to purchase.
The general descriptions of the kinds of supports that are NDIS supports in the Instrument and in participant’s plans will continue to provide participants with choice and control over how they spend their plan while also returning the NDIS to its original intent, consistent with the recommendations of the NDIS review.
In the current planning framework (now known as the ‘old framework’), the definition of NDIS support clarifies the boundaries of what supports are reasonable and necessary under section 34 of the NDIS Act. This is an essential step to ensure that participants are able to continue receiving the supports they need as a result of their disability for many years to come.
In the new budget-based planning framework, reasonable and necessary supports will be replaced by reasonable and necessary budgets. This means the definition of NDIS supports has an even more important role in guiding participants to understand the supports that are able to be funded by the NDIS, as most supports will no longer be identified in participant’s plans.
In addition to clarifying what is and is not appropriately funded by the NDIS, the concept of NDIS support reinforces the constitutional basis for the NDIS, which is necessary for new framework (budget based) plans. This includes by implementing Australia’s obligations under the Convention on the Rights of People with Disability (CRPD).
Mr Lessing contended that the statements above constitute an acknowledgement that the approach is designed to achieve the objective of providing supports to people with significant and permanent disability. Mr Lessing considers this to be a reference to the requirement of permanency in s 24 of the NDIS Act, and then, separately, people in need of early intervention support.[40]
[40] Transcript, P-93.
At first, in the NDIA’s Supplementary SFIC, the NDIA accepted a contention which had been made by Mr Eastham that the Mobility Scooter is “characterised as an ‘NDIS Support’ under Schedule 1 of the Transitional Rules”, specifically, because it fell within the description of the support described in subparagraph (b) of item 28 in Schedule 1 to the Transitional NDIS Supports Rules.[41] The category in item 28 is described in Column 1 as “Personal mobility equipment” and the support in subparagraph (b) is described as “wheelchairs and motorised mobility devices”. The NDIA’s position subsequently changed.
[41] NDIA’s Supplementary SFIC, [13].
At the hearing, Mr Lessing informed the Tribunal that the NDIA’s concession in this regard “might not be able to be maintained”, because item 28 provided for the provision of personal mobility equipment that supports or replaces a participant’s capacity to move indoors or outdoors and to transfer from one place to another and would include wheelchairs and motorised mobility devices.[42]
[42] Transcript, P-19.
Mr Lessing contended that subsection 5(1) of the Transitional NDIS Supports Rules provides that Schedule 1 is subject to Schedule 2. The Tribunal agrees with this proposition because in subsection 5(1), after declaring that a support described in Schedule 1 will be an NDIS support, it states (in brackets) that this provision is subject to subsection 5(2). Subsection 5(2) then declares that a support is not an NDIS support if it is a support described in Schedule 2. The Explanatory Memorandum also confirms that this is what Parliament intended by subsection 5(1), on account of the following statement:
This means that supports prescribed for the purpose of subsection 5(1) will not be NDIS supports if they are covered by … subsection 5(2) of the Instrument.[43]
[43] Explanatory Memorandum, page 11.
At the hearing, Mr Lessing referred the Tribunal to item 6 of Schedule 2, which he said excluded day-to-day living costs, specifically, “travel and transport”, being the description of the category of supports referred to Column 1 of Schedule 2 for item 6.[44] Mr Lessing referred to the support described in subparagraph (b) of item 6, being “vehicles, including motor vehicles, motorbikes, watercraft, all-terrain vehicles, standard bikes and scooters, and other recreational vehicles”.[45] Mr Lessing contended that a mobility scooter fell within this description and so is “not an NDIS support”.[46] Mr Lessing also referred to the supports described in subparagraph (f) of item 6, that is, “e-scooters, electric bikes and skateboards”. Mr Lessing submitted there is “a potential issue there depending on how this is characterised”.[47]
[44] Ibid, P-90.
[45] Transcript, P-19.
[46] Ibid, P-19.
[47] Ibid.
The Tribunal understands Mr Lessing to be suggesting that the Mobility Scooter may fall within the definition of the supports described in subparagraphs (b) or (f) of item 6 in Schedule 2. During closing submissions, Mr Lessing clarified that the NDIA contended that the Mobility Scooter would fall within the meaning of a “standard scooter” in item 6 of Schedule 2.[48] He said the reason for this is because the Mobility Scooter is “not modified or adapted to address the impairments that meet section 24, being the visual impairments” and that it is “simply, a transport substitution”.
[48] Transcript, P-96.
Specifically, in relation to item 6 in Schedule 2 to the NDIS Transitional NDIS Rules, Mr Lessing drew the Tribunal’s attention to a statement highlighted in bold in the following extract, as relevant, taken from the Explanatory Memorandum:[49]
Assistance with travel or transport arrangements
These are supports that provide transport assistance to participants that cannot travel or use public transport independently.
A participant will generally be able to access funding through the NDIS for transport assistance if the participant cannot use public transport without substantial difficulty due to their disability.
…
These supports are available to participants or prospective participants generally who need the support as a result of their disability.
[49] 2024 Explanatory Memorandum, page 18.
The Tribunal notes the following extract from the 2024 Explanatory Memorandum entitled “Schedule 2 – Supports that generally are not NDIS supports” (bold emphasis added):
Schedule 2 is made for the purposes of subsection 10(4) of the NDIS Act and declares supports that are not NDIS supports.
Schedule 2 includes a table that sets out 24 categories of supports. Each of these categories is set out in Column 1. Column 2 provides an exhaustive list of the supports that are included in that category and are therefore declared not to be NDIS supports.
This schedule reflects existing arrangements as outlined in the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports for Participants Rules) and intergovernmental agreements such as the applied principles and tables of support and the Disability Reform Council’s Communique dated 28 July 2019.
There are universal obligations for all governments to provide inclusive and accessible services for people with disability. The NDIS and other service systems retain the general principle of working together at the local level to plan and coordinate streamlined care for people requiring both disability supports and mainstream services, recognising both services may be required in conjunction with the need for smooth transitions, coordination and collaboration across service systems.
It is important to note that just because something is excluded from the list of NDIS supports does not confer an obligation on other service systems to provide it.
The lists in schedule 2 declare that the NDIS will not fund a number of ‘standard’ items. That is, the NDIS will not fund items that any person would buy for themselves, but may fund items that are specifically required or modified as a result of a person’s disability.
While the instruments in the list are exhaustive, the below provides a more general outline and explanation of the supports that are not NDIS supports and does not enumerate all of the supports that are captured.
During closing submissions, Mr Lessing referred to the following category described in the Explanatory Memorandum of day-to-day living costs that are declared “not to be NDIS supports”:[50]
Travel and transport: this includes cruises, holiday packages, holiday accommodation, standard vehicles, petrol, and personal mobility devices (which are different from the mobility devices required by a participant as a result of their disability).
[50] Explanatory Memorandum, pages 32 and 33 & Transcript, P-95.
Mr Lessing contended that the focus when evaluating whether or not the Mobility Scooter fell within item 28 of Schedule 1 or item 6 of Schedule 2 is to be “informed by the connection that it has with the person’s disability”.[51] Mr Lessing suggested that it could be inferred that the concept of “disability” meant one being deployed in the sense of a disability constituted by impairments that meet the criteria under s 24 or s 25.[52]
[51] Transcript, P-95.
[52] Ibid.
In that regard, during closing submissions, Mr Lessing drew the Tribunal’s attention to the definition of “Standard item” as appearing in Section 4 entitled “Definitions” contained in the Explanatory Memorandum.[53] This definition is reproduced below:
standard item for a person means an item that is not modified or adapted to address the person’s functional impairments.
There are a number of items that are declared not to be NDIS supports because they are ‘standard’, meaning that they will not be funded by the NDIS because they are not modified or adapted to address a participant’s functional impairments. The NDIS does not fund standard products that are the responsibility of any person to purchase for themselves.
[53] Section 4 commences at page 7. The definition of “Standard item” is found at page 10.
Mr Lessing pointed out that there is no definition of “the person’s functional impairments” but he refers the Tribunal to the definition of a “participant’s impairment” as appearing in s 9 of the NDIS Act, for this purpose of this Act. A “participant’s impairment” is defined in s 9 as meaning “an impairment in relation to which the participant meets the disability requirements, or the early intervention requirements, to any extent.”[54]
[54] Transcript, P-95.
Mr Lessing considers that the Transitional NDIS Rules and the above definition are matters which should be taken into account when evaluating whether, in a particular participant’s case, a mobility scooter is a scooter or not. Mr Lessing submits that the determinative factor is whether the mobility scooter is being sought in respect of a disability which satisfies s 24 or s 25, or some other ancillary impairment which does not meet those requirements.[55]
[55] Ibid.
The Tribunal considers that this definition of “standard item” is only relevant when an item in Schedule 2 is declared not to be an NDIS support because they are expressly qualified in the description in Schedule 2 by the term “standard”.
The Tribunal does not accept Mr Lessing’s contention as referred to in paragraph [117]. The Tribunal considers that to adopt this approach would be to conflate, unnecessarily so, the assessment which is required to be made under the operative provisions of s 34(1)(aa), and the separate task required when interpreting whether a particular support falls within the descriptions of various supports declared as being “not an NDIS support” in the table in Schedule 2 to the Transitional NDIS Supports Rules.
The Tribunal considers that the wording of the supports included in subparagraph (b) of item 28 of Schedule 1, and subparagraphs (b) and (f) of item 6 of Schedule 2, are unambiguous. With respect, the Tribunal is not persuaded that a conflation of the kind that Mr Lessing has suggested is either warranted or would be helpful in the present application. The reason for this is that the Tribunal considers that the Mobility Scooter being sought by Mr Eastham squarely falls within the definition of a “motorised mobility device” as included as a support in item 28 of Schedule 1. Further, the Tribunal concludes that the Mobility Scooter is not excluded as a funded NDIS support by reason of it falling within the exhaustive list of supports described Schedule 2. Specifically, the Tribunal concludes that:
(a)the Mobility Scooter is not a type of support described in subparagraph (b) of item 6, because it is clearly not a “vehicle (including a motor vehicle), motorbike, watercraft, all-terrain vehicle, standard bike or scooter, or another recreational vehicle”. The Tribunal interprets the reference to a “scooter” in subparagraph (b) (whether this is to be read as a “standard scooter” or a “scooter”), as being a reference to an unmotorised off-the-shelf scooter comprising a small platform upon which the person being transported is required to stand up and use their legs to propel the scooter forward; and
(b)the Mobility Scooter is not a type of support described subparagraph (f) of item 6, because it is clearly not an “e-scooter, electric bike, or skateboard”. The Tribunal concludes that those items are something quite different from a mobility scooter, which is a type of motorised mobility device.
Is the Mobility Scooter more appropriately funded under another general service system rather than the NDIS?
The second limb of satisfying the requirements of s 34(1)(f) (at the present time) will require a consideration as to whether the Mobility Scooter is most appropriately funded under the NDIS and not more appropriately funded under another general service system.
The type of support being requested by Mr Eastham in the form of purchasing a Mobility Scooter is a type of transport support. There were no substantive submissions made by the NDIA before the hearing to address any consideration as to whether the Mobility Scooter is more appropriately funded under another general service system rather than the NDIS.
When the Tribunal raised this with the parties at the hearing, the NDIA referred to existence of community bus services. The NDIA referred to details and information for:
(a)the ‘Maldon Community Bus’ service; and
(b)the Newstead Rural Transaction Centre Newstead & District Community Bus (‘RTC’).
In response, Mr Eastham said he had never heard of these services. The Tribunal gave leave to the NDIA to lodge evidence about this community bus services and provided Mr Eastham an opportunity to lodge any submissions or evidence in response to any evidence lodged by the NDIA.
In Dr Fry’s 14 November 2024 Letter, she indicated that the Maldon Community Bus service was of no benefit to the Applicant, noting that this service was not a “personalised service” and essentially, it was intended for transportation between neighbouring towns. In the NDIA’s Further Submissions, it highlighted that it was not clear whether an enquiry had been made about whether the Maldon Community Service bus could pick up and drop off Mr Eastham on its way into and out of Castlemaine, noting that the service was described as a “door to door” service on its brochure.[56]
[56] NDIA’s Further Submission, [4].
The NDIA contends that it did not appear that enquiries had been made of the other RTC community bus services. The NDIA highlighted that the information relating to this service suggests that it is a personalised service which travels to Castlemaine on Thursdays and will pick up passengers from their door and drop them into town wherever they wish. The information indicates that the passengers will be collected from pre-arranged locations and times, which are flexible. The information also suggests that assistance with unloading “shopping” is included in this service.[57]
[57] Ibid, [5].
Further to the community bus services, the NDIA also contends that the local bus (No. 2) would, at least, provide a range of times between 9:33am and 2:54pm where the Applicant would be able to access the town. The NDIA contends that on days when Mr Eastham “has shopping or appointments in the late afternoon, he may be able to utilise either the Maldon or RTC buses”. The NDIA contends that if Mr Eastham is “using the local bus service and has some shopping, he may be able to use a walker or a hand trolley to assist him in carrying the shopping home”.[58]
[58] Ibid, [6].
Finally, the NDIA suggests that Mr Eastham’s support workers would be able to assist in planning Mr Eastham’s appointments to take advantage of the transport options available. The NDIA refers to the “typical” week as outlined in the hearing bundle,[59] and contends there does not seem to be “any clear reason why shopping trips and appointments cannot be planned to occur so as to minimise the number of trips into and out of town rather than, for example, separate trips to attend the bank and the chemist on Thursdays”.
[59] NDIA’s Updated HTB, B11.
On Mr Eastham’s Further Submissions, Ms Fry, on behalf of Mr Eastham, stated as follows:
Contact was made with the service, and an enquiry was made about the nature of the transport service offered by the Maldon Neighbourhood Centre.
We were advised that the service was not a ‘personalised service’ in that residents could be collected and taken to appointments, etc. Rather, we were advised that the bus made trips on Tuesday and Friday mornings, from Maldon to Castlemaine, returning in the afternoon.
We were advised that the service was centred in Maldon, for the purpose of transporting its residents into neighbouring towns of Castlemaine, Kangaroo Flat and Maryborough.
The service would therefore be of no benefit to the Applicant, Mr Eastham, as he does not have any appointments in these areas, or purpose for visiting these remote towns.
We therefore hope that the Tribunal is able to take this information into account in making the correct and preferable decision in regards to the Applicant’s appeal application.
We have attached the brochure from the centre’s website for your reference.
The Tribunal notes that the brochure for the Maldon Community Transport Service describes the service as an “affordable door to door service, Tuesdays and Thursdays” (except for public holidays) which is “open for all” for a $5 donation. There is a notation on the brochure that a user of this service will “be advised” of their approximate pick-up time when booking and that “times may vary slightly depending on number and location of pick-ups”. Set times and routes are provided in a timetable appearing in the brochure. It was not apparent from this brochure that the user may nominate their preferred pick up and collection times consistent with the outcome of Ms Fry’s enquiries as described in Mr Eastham’s Further Submissions.
The Tribunal finds that both of the community bus services have only limited availability and the Maldon Community Bus service would appear to be inflexible in terms of the pick-up and drop off locations and the timing of the service. The Tribunal has already found that local bus service does not run during the nights, on weekends or on public holidays and that Mr Eastham would experience substantial difficult using this local bus service at the present time.
Accordingly, the Tribunal is not satisfied on this evidence that there is another general service system such as the two community bus services offered by Maldon Community Bus or RTC bus services or the local bus service (No. 2) which is more appropriate to provide the transport support to Mr Eastham that he reasonably requires on account of his impairments.
The Tribunal concludes that the mandatory criterion under s 34(1)(f) is met.
Criterion under s 34(1)(c)
The mandatory criterion under s 34(1)(c) requires the Tribunal to be satisfied that the Mobility Scooter for Mr Eastham represents value for money in that its costs are reasonable, relative to both the benefits achieved and the cost of alternative support. The submissions by the NDIA in this proceeding about whether this criterion has been met were limited in terms of directly addressing this criterion. Mr Eastham’s position is that a Mobility Scooter, with a carry basket affixed to it, is going to be less expensive than him being assisted by support workers to transport him places and to carry his groceries.
The Tribunal has considered that the alternative costs of Mr Eastham using the local bus or the two community bus services referred to above as a means by which to travel into town is likely to be less expensive. However, the Tribunal has found that Mr Eastham will experience substantial difficulty at the present time if he is to endeavour to travel by foot and the local bus when making his regular trips into town and back. Further, there is also a significant limit as to the availability of those services as mentioned above.
Mr Eastham has given evidence that if he is provided with the Mobility Scooter, he can use it to travel into town and around the community and also to travel between his home and the Eye and Ear Hospital (in conjunction with using the V/Line train service). On this basis, the provision of the Mobility Scooter will mean that Mr Eastham will not require any increase to his Recurring Transport Allowance, and indeed, he does not make any such claim if a decision is made to approve funding for the Mobility Scooter.
Based on these matters, the Tribunal is satisfied that the criterion under s 34(1)(c) of the NDIS Act is met.
Criterion under s 34(1)(d)
Section 34(1)(d) requires the Tribunal to be satisfied that the Mobility Scooter will be, or is likely to be, effective and beneficial for the participant, having regard to good practice. The Tribunal is satisfied that the provision of this support is likely to be effective and beneficial for Mr Eastham having regard to good practice. The use of a Mobility Scooter will provide Mr Eastham with an independent means by which he may, at times of his choosing, travel into town. It will also allow Mr Eastham to return home immediately should he start to feel a migraine developing. The Tribunal gained an impression from Mr Eastham that his independence when undertaking ADLs is highly valued by him. The Mobility Scooter will optimise his independence.
Criterion under s 34(1)(a)
The Tribunal is satisfied that the Mobility Scooter would assist Mr Eastham to pursue his stated NDIS goals of:
(a)feeling confident to get around unfamiliar environments and improve his mobility skills so that he can do so independently; and
(b)accessing the community, so he can continue to support his family.
The Tribunal concludes that the mandatory criterion under s 34(1)(a) is met in respect of the Mobility Scooter.
Criterion under s 34(1)(b)
The Tribunal is satisfied that the Mobility Scooter will assist Mr Eastham to undertake activities, so as to facilitate the participant’s social and economic participation. The purpose of the Mobility Scooter is to take Mr Eastham into town and back every day where he will be able to participate economically, as a consumer of household and grocery items, and to participate socially with others in the community.
The Tribunal concludes that the mandatory criterion under s 34(1)(b) is met in respect of the Mobility Scooter.
Criterion under s 34(1)(e)
The Tribunal must be satisfied that the provision of the Mobility Scooter takes account of what it is reasonable to expect families, carers, informal networks and the community to provide. Mr Eastham is an adult participant and he values his independence. The Tribunal considers that it is not reasonable to expect that his family members and friends should provide ongoing and regular transportation services to Mr Eastham. The Tribunal also considers that it is not reasonable to expect that the two community bus services or the local services will adequately meet Mr Eastham’s transportation requirements because those services are infrequent, as mentioned above, and in relation to the local bus service, Mr Eastham would experience substantial difficulty walking to and from the local bus stop.
The Tribunal concludes that the mandatory criterion under s 34(1)(e) is met in respect of the Mobility Scooter.
Replication of current Recurring Transport Allowance
At the substantive hearing, Mr Lessing on behalf of the NDIA suggested that it may not be open to the Tribunal to replicate the approval of Mr Eastham’s current Recurring Transport Allowance in his current SOPS, due to the amendments to NDIS legislative framework and specifically, the new definition of NDIS support. The Tribunal understood Mr Lessing was inferring that such recurring transport funding payments are not “an NDIS support” within Schedule 1 of the Transitional NDIS Support Rules. The Tribunal does not agree.
The Tribunal notes that there is a category of supports in item 6 of Schedule 1 which describes such supports as follows (emphasis added):
Supports that provide transport assistance to participants that cannot travel or use public transport independently.
This includes the following:
(a) transport for the purposes of participants undertaking community‑based activities;
(b) transport for the purposes of participants attending school or other educational facilities;
(c) provider travel costs;
(d) costs associated with the use of taxis or private transport;
(e) in-kind specialist school transport;
(f)travel training to build a participant’s confidence and skills to use public transport safety and independently.
The Tribunal finds that the Recurring Travel Allowance payments fall within either subparagraphs (a) and (d) of item 6 of Schedule 1. There will be times when Mr Eastham is not able to use a mobility scooter to make journeys, for instance, if it is raining and it is not safe or comfortable to use a mobility scooter, or if the place he going to is quite a distance away from him, for instance, when required to see medical or clinical specialists. There may also be instances when Mr Eastham is carrying a heavy or bulky load and so he will need to use a taxi to help transport the items.
The Tribunal is satisfied that Mr Eastham’s current level of Recurring Transport Allowance in his NDIS plan should be replicated in the new SOPS approved for him when implementing this decision. The NDIA is at liberty to request an assessment of Mr Eastham’s circumstances and in particular his functional capacity and need for the continuation of the Recurring Transport Allowance at the time of his next plan review. By this time, Mr Eastham will have used his new Mobility Scooter for a considerable period of time and so a comprehensive review can take place as to whether any further replication of Mr Eastham’s Recurring Transport Allowance is warranted and meets the s 34(1) criteria.
CONCLUSION
The Tribunal sets aside the Decision Under Review and remits this matter for reconsideration by the NDIA with a direction that it facilitates the approval of a new statement of participant supports (‘SOPS’) for Mr Eastham forming part of his NDIS plan, which includes provisions to approve funding for:
(a)to purchase the Mobility Scooter (and associated accessories and services) in the total sum of $7,333.80; and
(b)replication, on a pro rata basis, of all of the Applicant’s other existing supports as set out in his current SOPS.
The notional plan duration and plan management specifications in the new SOPS to be approved for the Applicant in accordance with the above direction, is to remain the same as set out in the Applicant’s current SOPS.
Date of hearing: 11 November 2024 Date final submissions/evidence received: 22 November 2024 Advocate for the Applicant: Ms Anna Fry, RIAC Respondent: In person Counsel for the Respondent: Mr Joshua Lessing Solicitors for the Respondent: Maddocks Lawyers
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