Facer and National Disability Insurance Agency (NDIS) - [2024] ARTA 404

Facer and National Disability Insurance Agency (NDIS) [2024] ARTA 404 (18 December 2024)
Applicant/s:  Marcus Facer
Respondent:  CEO, National Disability Insurance Agency
Tribunal Number:                2022/1013

Tribunal:Senior Member K Bean
Place:Sydney
Date:18 December 2024
Decision:The Tribunal affirms the decision under review.

.................................[SGD].......................................
Senior Member K Bean
CATCHWORDS
National Disability Insurance Scheme – review of supports in plan – impairments resulting from chronic obstructive pulmonary disease – internet costs – application of National Disability Insurance Scheme Act and Rules as amended - decision affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024
National Disability Insurance Scheme (Supports for Participants) Rules 2013
Statement of Reasons
INTRODUCTION

The Applicant, Mr Facer, is a 65-year-old man who has been a participant in the National Disability Insurance Scheme (NDIS) since 2019. He was granted access to the NDIS on the basis of impairments resulting from chronic obstructive pulmonary disease.
Mr Facer lodged his application to the Tribunal on February 2022 seeking review of an internal review decision of 2 February 2022, which approved a statement of participant supports (SOPS) in his NDIS Plan of 6 December 2021 (with a review date of 6 December 2022).
During these proceedings, the matter was ultimately remitted four times pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (the AAT Act) resulting in further SOPS dated 19 December 2022, 9 November 2023, 6 June 2024 and finally 22 July 2024, being the SOPS in Mr Facer’s current plan.
In the event, as the matter has proceeded, many of the additional supports originally sought by Mr Facer, or subsequently requested, have been provided and are reflected in the SOPS referred to above.
By July of this year, it appeared that the supports in issue between the parties had narrowed significantly and were limited to a claim by Mr Facer for internet costs, and the question of plan management. However, Mr Facer subsequently indicated that he was now seeking further additional supports, including assistive technology, operational costs for his modified vehicle, and funding for an Independent Living Option Assessment.
It was in this context that a hearing was held on 3 September 2024, directed to the question of whether the Tribunal should make a direction limiting the issues to be considered in the matter pursuant to s 25(4) of the AAT Act. Having regard to the history of the matter and for reasons which were given orally, I ultimately made a direction that the scope of the matter was limited to consideration of Mr Facer’s contention that internet costs should be included in his current SOPS. That Direction was in the following terms:
Pursuant to subsection 25 (4A) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal has made a determination that the remaining scope of the review of the decision in this matter is limited to consideration of the Applicant’s contention that internet costs should be included in his statement of participant supports.
A hearing directed to this one remaining issue was held on 30 October 2024, with Mr Facer being represented by Ms Leverett and Mr Swan of Counsel appearing for the Respondent.

SHOULD MR FACER’S SOPS BE VARIED TO INCLUDE INTERNET COSTS?
In support of his position, Mr Facer has indicated he has an internet plan with Telstra for NBN use which costs him $110 per month[1]. He seeks to have this expense included as a support in his SOPS as he says this internet plan is “exclusively used for disability-related needs and impairments”[2]. Mr Facer contends that this plan enables him to interact with the NDIS and it also enables him to shop online including for groceries and attend telehealth appointments, among other disability- related activities. In addition, he says this plan enables his smart home system, which allows him to easily control various environmental factors in his home which are important to his well-being, including air conditioning and oxygen levels[3]. He says he has a different internet plan for his mobile phone which relates to personal use[4].
[1] Applicant’s Written Submissions dated 9 October 2024 at [2].
[2] Applicant’s Written Submissions dated 9 October 2024 at [10].
[3] Applicant’s Written Submissions dated 9 October 2024 at [6].
[4] Ibid at [10].
However, the Respondent has directed my attention to the recent amendments to the National Disability Insurance Scheme Act 2013 (NDIS Act) made by the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) Act 2024 (Amending Act), which are potentially relevant to this matter.
The Respondent has pointed out that s 129 of the Amending Act has the effect that the provisions regarding participant’s plans as in force on and after 3 October 2024 apply to any approval or variation of a SOPS after that date, and I accept this is an accurate interpretation of that provision. As Mr Facer is seeking a variation of his SOPS, I also accept that in considering that request I am required to apply the NDIS Act and applicable Rules as in force on and after 3 October 2024.
Most relevantly, I am required to apply s 34(f) of the NDIS Act as amended, which now requires that in determining whether a support is reasonable and necessary, the CEO must be satisfied that a particular support “is an NDIS support for the participant”. I must also have regard to s 10 of the NDIS Act as amended, which defines supports that are NDIS supports. Most relevantly, s 10(4) provides that the NDIS rules may declare that a support is not an NDIS support.
Pursuant to that provision, I note that Schedule 2, clause 1, item 4 of the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1)(NDIS Supports) Transitional Rules 2024 (the Transitional Rules) specifies that “Day-to-day living costs – lifestyle” including “internet, landline and mobile phone plans and data” generally are not NDIS supports. Importantly, s 5(2) of the Transitional Rules also provides that a support covered by column 2 of an item in the table in clause 1 (as these supports are) “is not an NDIS support for any participant”, subject to s 10(6) of the NDIS Act. Subsection 10(6) of the NDIS Act provides as follows:

The CEO may determine, in writing, that a support is taken to not be declared under subsection (4) in relation to a participant if:
(a)  the support is prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and
(b)  the support would, apart from subsection   (4), be an NDIS support for the participant; and
(c)  the participant applies to the CEO in accordance with subsection (7) for the determination; and
(d)  the CEO is satisfied that:
(i)  the support would replace one or more other supports that are NDIS supports for the participant; and
(ii)  the cost of the support is the same or lower than the total of the costs of the supports it would replace; and
(iii)  the support would provide the same or a better outcome for the participant than the supports it would replace; and
(iv)  any other conditions specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph are met in relation to the support, the participant, or both.
Note 1: A determination may be revoked under subsection 33(3) of the Acts Interpretation Act 1901 .
Note 2: The National Disability Insurance Scheme rules may prescribe a support for the purposes of paragraph (a) by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).
As there is no current relevant determination in place, and I do not have jurisdiction to make one, it follows that, even if I was otherwise persuaded it was appropriate for me to do so, it would not be open to me to include internet costs in Mr Facer’s SOPS. This is because the effect of the Act as amended, and the Transitional Rules, is that these costs are specifically precluded from being an NDIS support.
For completeness I should acknowledge that Ms Leverett for Mr Facer submitted at the hearing that s 6 (2) of the Transitional Rules assisted Mr Facer. That provision is in the following terms:
(2) A support specified in the statement as a reasonable and necessary support for the participant for the purposes of paragraph 33(2)(b) of the NDIS Act is taken to be an NDIS support for the participant if:
(a) the support is expressed in the statement to be a stated support; or
(b) the Administrative Appeals Tribunal, in making any of the following decisions before the commencement of Schedule 1 to the amending Act:
(i) a decision to vary the statement;
(ii) a decision to approve the statement, having set aside the approval of a different statement of participant supports for the participant;
(iii) a decision to remit the approval of a statement of participant supports for the participant for reconsideration by the CEO;
made a decision to the effect that that particular support should be specified in, or funded under, the plan as a reasonable and necessary support.
However, I am not persuaded this provision has any application here. In my view, it would only apply if there had been an AAT decision prior to 3 October 2024 which specified that internet costs were a reasonable and necessary support for Mr Facer, which is not the case.
Ms Leverett also relied upon Part 5 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports Rules), and in particular Rules 5.1 and 5.2, which provide as follows:
5.1 A support will not be provided or funded under the NDIS if:
(a) it is likely to cause harm to the participant or pose a risk to others; or
(b) it is not related to the participant’s disability; or
(c) it duplicates other supports delivered under alternative funding through the NDIS; or
(d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b) costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
Ms Leverett argued that Mr Facer’s NBN internet costs were attributable to his disability support needs, that they were ancillary to other supports funded under his NDIS plan, and that Mr Facer would not incur these expenses if he did not require these other supports. However, I note that these provisions of the Supports Rules are expressed in very general terms and do not make specific reference to internet costs, whereas the Transitional Rules I have referred to specifically refer to internet costs and are also much more recent. Although neither the Amending Act or the Transitional Rules repeal Part 5 of the Supports Rules, in my view neither Rule 5.1 or 5.2 operate to defeat the relevant parts of Schedule 2 of the Transitional Rules referred to above where those Rules apply, as they clearly do here.
CONCLUSION
As internet costs are specifically precluded by the Transitional Rules from being a reasonable and necessary support for the purposes of plans made or varied after 3 October 2024, it follows that it is not open to me to vary Mr Facer’s plan to include internet costs. As this is the only outstanding issue in the application, I have therefore concluded I am obliged to affirm the decision under review, being the most recent SOPS of 22 July 2024.
DECISION
The decision under review is affirmed.

Date(s) of hearing: 30 October 2024

Applicant: By Microsoft Teams

Counsel for the Respondent:

Solicitors for the Respondent:

N. Swan, 11 St James Hall

E. Rosetzky, Minter Ellison