Faraj and National Disability Insurance Agency (NDIS)
[2025] ARTA 2004
•4 February 2025
Faraj and National Disability Insurance Agency (NDIS) [2025] ARTA 2004 (4 February 2025)
Applicant/s: Nancy Faraj
Respondent: National Disability Insurance Agency
Tribunal Number: 2022/8341
Tribunal:General Member L Proske
Place:Adelaide
Date:4 February 2025
Decision:The Tribunal affirms the decision under review.
.....................[SGND]...................................................
General Member L Proske
Catchwords
National Disability Insurance Scheme – Statement of Participant Supports – reasonable and necessary – support worker assistance – plan management request – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth)Cases
Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852Secondary Materials
NDIS Guideline, ‘Reasonable and Necessary Supports’ updated 22 September 2024
NDIS Guideline, ‘Creating your plan’ updated 3 October 2024NDIS Guideline, ‘What principles do we follow to create your plan?’ updated 22 September 2024
Statement of Reasons
BACKGROUND AND JURISDICTION
The Applicant (Ms Faraj) is 50 years old. She lives in a single storey villa with her 16-year-old son.[1] Ms Faraj has left side hemiplegia resulting from a stroke she suffered in 1997.[2] Ms Faraj has also been diagnosed with epilepsy and has lateral compartment osteoarthritis and sagittal instability of the left knee.[3] She experiences symptoms of insomnia, anxiety, depression, and post-traumatic stress disorder (PTSD).[4] Ms Faraj became a participant of the National Disability Insurance Scheme (NDIS) in November 2016 on the basis of impairments arising from her stroke.[5]
[1] Exhibit 2 (E2), 67-68.
[2] Exhibit 1 (E1), 14; E2, 1; Respondent’s Statement of Facts, Issues and Contentions, (Respondent’s SFIC), [2].
[3] E1, 13, 29; Respondent’s SFIC, [2].
[4] E1, 14; Respondent’s SFIC, [2].
[5] Exhibit 4 (E4).
On 17 August 2022, the Chief Executive Officer (CEO) of the National Disability Insurance Agency (Respondent) approved a statement of participant supports (SOPS) for inclusion in Ms Faraj’s plan (original decision). That plan was for the period 17 August 2022 until 17 August 2023 and included funded supports totalling $206,198.30.[6] On 2 September 2022, Ms Faraj requested that the original decision be reviewed, and on 30 September 2022 a reviewer confirmed the original decision (internal review decision).[7]
[6] E1, 96.
[7] E1, 44, 68.
On 12 October 2022, Ms Faraj made an application to the Administrative Appeals Tribunal (AAT) for review of the internal review decision.[8] The AAT had jurisdiction to review the internal review decision under s 103(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), in combination with s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).[9]
[8] E1, 1.
[9] All sections referred to in this Statement of Reasons, including in the footnotes, are sections in the National Disability Insurance Scheme Act 2013 (Cth), unless otherwise stated.
The Administrative Review Tribunal (ART) was established on 14 October 2024 and replaced the former AAT.[10] Ms Faraj’s review application was not finalised before the transition to the ART. Proceedings in the AAT that were not finalised before the transition to the ART must be continued and finalised by the ART.[11] In this Statement of Reasons, the ART will hereafter be referred to as ‘the Tribunal’.
[10] s 8 of the Administrative Review Tribunal Act 2024 (Cth).
[11] Item 24, Part 5 to Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).
ISSUES ON REVIEW
The internal review decision considered whether funding for supports within Ms Faraj’s SOPS should be self-managed, and whether Ms Faraj’s SOPS should include funding for psychology, hydrotherapy and an electric wheelchair, and additional funding for assistance with daily living, occupational therapy, physiotherapy, and support coordination.[12]
[12] E1, 44.
Several supports sought on review were resolved between the parties during the review, and those have been included in Ms Faraj’s plan. At the commencement of the hearing the parties confirmed only 2 issues remained in contest, those being a request for funding for 16 hours per day of support worker assistance, and a request that funding for supports under Ms Faraj’s SOPS be self-managed.
The issues therefore to be determined by the Tribunal are:
a) Whether 16 hours per day of support worker assistance is a reasonable and necessary support, and whether each of the criteria in s 34(1) are met in respect of that support.[13]
b) Whether funding for supports within Ms Faraj’s SOPS should be self-managed.
[13] Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2003] FCA 852, [29], [33].
LEGISLATION AND POLICY
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) (Amending Act) commenced on 3 October 2024.[14] The Amending Act made a range of amendments to the NDIS Act. Those amendments included, but were not limited to, the insertion of a new definition of ‘NDIS Support’ at s 10, an amendment to s 33(5) which prescribes what is required when deciding whether to approve a SOPS, amendments to s 34 which sets out criteria which must be satisfied in relation to reasonable and necessary supports, and amendments to ss 43 and 44 regarding plan management. Those provisions, as amended, apply to Ms Faraj and any approval or variation of Ms Faraj’s SOPS.[15]
[14] s 2 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) (Amending Act).
[15] Items 124, 129, 132 of the Amending Act.
The objects of the NDIS Act, and the principles guiding actions under the NDIS Act, are set out in ss 3 and 4. In giving effect to the objectives of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.[16]
[16] s 3(3)(b).
Chapter 3 of the NDIS Act provides the statutory framework for individual plans under which NDIS supports will be funded for participants.[17] Section 17A prescribes principles to which regard must be had when performing functions and exercising powers under Chapter 3 of the NDIS Act. The preparation, variation, reassessment and replacement of a participant’s plan, and the management of funding for supports under a participant’s plan, should so far as reasonably practicable be guided by principles relating to plans set out in s 31. A participant’s plan must include the participant’s statement of goals and aspirations and SOPS.[18]
[17] s 8.
[18] ss 33(1), 33(2).
In deciding whether to approve a SOPS, the CEO or the Tribunal on review, 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;
(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.[19]
[19] s 33(5).
12.Section 34(1) provides that:
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);
a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
f)the support is an NDIS support for the participant.
The Full Court of the Federal Court considered the phrase ‘reasonable and necessary support’ in National Disability Insurance Agency v WRMF [2020] FCAFC 79, stating:
‘the phrase connotes supports which meet a threshold which justifies – by reference to the context, objects and guiding principles of the Act and the facts of the case – the expenditure of public funds for that support, for a particular participant … [T]he phrase needs to be understood taking into account what has qualified a person as a participant, and the links between a person’s impairment and their full participation in the community…’[20]
[20] National Disability Insurance Agency v WRMF [2020] FCAFC 79, [149]-[151].
Section 33(2)(d) provides that a SOPS must specify the management of the funding for supports under the plan. In specifying the management of the funding for supports under the plan, the plan must specify that such funding is to be managed wholly, or to a specified extent, by the participant, a registered plan management provider, the Agency, or the plan nominee.[21]
[21] s 42(2).
A participant for whom a plan is in effect or is being prepared may make a request that they manage the funding for supports under the plan wholly, or to a specified extent.[22] If a participant makes such a request, the SOPS in the plan must give effect to the request, unless s 44(1) applies in relation to the participant.[23] Section 44(1) prescribes circumstances in which persons must not manage funding. With respect to a participant, s 44(1) provides that:
[22] s 43(1)(a).
[23] s 43(3)(b).
For the purposes of paragraph 43(3)(b), this subsection applies in relation to a participant if:
(a) the participant is an insolvent under administration; or
(aa)the participant has been convicted of an offence against a law of the Commonwealth, a State or a Territory that:
(i) is punishable by imprisonment for 2 years or more; or
(ii) involves fraud or dishonesty; or
(b)the CEO is satisfied that the participant’s management of the funding for supports under the plan to a particular extent would:
(i) present an unreasonable risk to the participant; or
(ii)permit the participant to manage matters that are prescribed by the National
Disability Insurance Scheme rules as being matters that must not be managed by a participant; or
(c)the CEO is satisfied that section 46 (acquittal of NDIS amounts) would be unlikely to be complied with if the participant were to manage the funding for supports under the plan to a particular extent.
Relevant to this application, the Minister has made the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Supports Rules), the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports Rules) Transitional Rules 2024 (Cth) (Transitional Rules) and the National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth) (Plan Management Rules). These are an important part of the legislative scheme.[24]
[24] McGarrigle v National Disability Insurance Agency [2017] FCA 308, [43].
Guidelines published on the NDIS website contain information about what the Respondent considers when making decisions under the NDIS. These are essentially policy documents. The Guidelines ‘Reasonable and Necessary Supports’ (Supports Guideline), ‘Creating your plan’ (Plan Guideline) and ‘What principles do we follow to create your plan?’ (Principles Guideline) are relevant to this application. The Tribunal will take these into account unless there are cogent reasons not to.[25]
[25] Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 420.
EVIDENCE AND SUBMISSIONS
The Respondent filed T-Documents on 17 October 2022 under s 37 of the AAT Act and an agreed joint tender bundle on 6 November 2024. The T-Documents and the joint tender bundle were received into evidence at the commencement of the hearing and marked ‘Exhibit 1’ and ‘Exhibit 2’ respectively. The following documents were also received into evidence at the hearing:
a) Respondent’s bundle of additional documents, marked ‘Exhibit 3’
b) Screen shot of the Respondent’s internal system ‘assessed impairment’, marked ‘Exhibit 4’.
c) Screen shot of the Respondent’s Support Calculator, marked ‘Exhibit 5’.
d) Screen shot of the Respondent’s Support Calculator, marked ‘Exhibit 6’.
e) Medical Certificate issued by Dr Christopher Zaky, Chester Hill Family Medical Practice dated 6 September 2023, marked ‘Exhibit 7’.
f) Applicant’s bundle of additional documents, marked ‘Exhibit 8’.
g) Respondent’s bundle of further additional material, marked ‘Exhibit 9’.
The hearing was conducted by Microsoft Teams on 27, 28 and 29 November 2024. Mr Faraj was assisted by Mr William Robin (Mr Robin), a disability advocate. Ms Faraj, Ms Rebecca Beileiter (Ms Beileiter), Ms Hedeya Elnajjar (Ms Elnajjar), and Ms Kelsey McIntosh (Ms McIntosh) gave oral evidence at the hearing.
The Respondent filed a Statement of Facts, Issues and Contentions (Respondent’s SFIC) on 26 July 2024. Ms Faraj filed a Response to the Respondent’s SFIC (Ms Faraj’s Reply) on 27 August 2024. On 6 November 2024, the Respondent filed submissions regarding the application of the Amending Act to Ms Faraj’s review application. The parties also made opening and closing submissions at the hearing.
The Tribunal has considered the written evidence, oral evidence and submissions referred to above at paragraphs [18] to [20].
CONSIDERATION
16 hours per day of support worker assistance
Ms Faraj is requesting that her SOPS include funding for 16 hours of support worker assistance per day (requested support). Ms Faraj contends the requested support is reasonable and necessary and should be funded in her SOPS. The Respondent does not accept that the requested support represents value for money in that the costs of the support are reasonable and necessary, relative to both the benefits achieved and the cost of alternative support; or that it will be, or is likely to be, effective and beneficial for Ms Faraj, having regard to current good practice.[26] In closing submissions, the Respondent also suggested the requested support will not assist Ms Faraj to pursue the goals in her plan. Accordingly, the Respondent contends the requested support is not reasonable and necessary.[27] The Respondent further contends that the reasonable and necessary amount of support worker assistance is as funded in Ms Faraj’s current plan.[28]
[26] Respondent’s Statement of Facts, Issues and Contentions (Respondent’s SFIC), [27]-[32]; Respondent’s closing submissions.
[27] Respondent’s SFIC, [32]; Respondent’s closing submissions.
[28] Respondent’s SFIC [33]; Respondent closing submissions.
As at the time of the hearing, Ms Faraj’s SOPS included $160,991.57 for support worker assistance for the period 21 June 2024 to 20 December 2024, which was broken down as follows:
a) 15 hours per week for assistance with personal domestic activities.
b) 40 hours per week (weekday daytime), 3 hours per Saturday, and 3 hours per Sunday for assistance with self-care activities.
c) 4 hours per week for assistance with house cleaning and other household activities.
d) 10 hours per week (weekday daytime), 5 hours per Saturday and 5 hours per Sunday for assistance with access community social and recreational activities.[29]
[29] Exhibit 3 (E3), 65; Exhibit 5 (E5); Exhibit 6 (E6); Respondent’s oral closing submissions.
The above support has been replicated in Ms Faraj’s most recent SOPS for the period 5 December 2024 to 5 June 2025.[30]
[30] The Respondent emailed the Tribunal and the Applicant a copy of this plan on 6 December 2024 (Respondent’s current plan), p7 of 11.
The goals included in Ms Faraj’s plan are as follows:
I would like assistance from a psychologist, Occupational Therapist and Physiotherapist to improve my behaviours, develop my skills to perform daily living/personal hygiene skills, and improve my mobility/relieve strains in my body, in order to be better independent and less reliant on funded supports that assist me on a daily basis.
I would like assistance from an exercise physiologist to support me with my exercises and further build muscle in my body to improve my mobility and stability in order to move independently without supports.
I would like continuous support for my consumables, personal care, domestic assistance and social community to help management my everyday needs as I am unable to perform the duties independently due to my disability.[31]
[31] E3, 62; Respondent’s current plan, p4 of 11.
In evidence is an undated Occupational Therapy Functional Assessment Report prepared by Ms Preya Carey, a senior occupational therapist and Ms Preksha Raj, an allied health assistant.[32] This report’s inclusion in Exhibit 1 and references therein suggest it was prepared somewhere between mid-2021 and October 2022. The report states the authors assessed Ms Faraj within her home.[33] Ms Carey and Ms Raj reported that Ms Faraj requires assistance to transfer and with toileting at night when she is in pain; and with meal preparation, cutting food, washing her hair and lower body, grooming and dressing.[34] They further report Ms Faraj is scared to go to the toilet at night and is not interested in using any incontinence pads as she is very conscious about her looks; and recommended a commode chair be trialled to omit the risk of falls at night.[35] With respect to core support, Ms Carey and Ms Raj state that Ms Faraj will need 16 hours of daily care (assistance with self-care, daily personal activities, and social community services) due to worsening of her mobility as a result of the deterioration of her left lower limb and upper limb, especially due to damage to her knee as a result of abnormal jerking and posture.[36] Ms Carey and Ms Raj recommend 24 hours per day support worker assistance.[37]
[32] E1, 29.
[33] E1, 30.
[34] E1, 32-33.
[35] E1, 32-33.
[36] E1, 35.
[37] E1, 35.
Ms Kinjal Shah, a physiotherapist, prepared a report dated 8 August 2022.[38] In that report, Ms Shah states she assessed Ms Faraj on 8 August 2022.[39] With respect to core supports, Ms Shah recommends 24 hours per day support worker assistance.[40] Notably, Ms Shah’s reasoning for this recommendation replicates what Ms Carey and Ms Raj stated in their undated report referred to in paragraph [26] when explaining why Ms Faraj needs 16 hours of daily care.[41] Similarly, Ms Shah’s report as it relates to her assessment of Ms Faraj’s capacity to engage in activities of daily living, including functional mobility, transfers, toileting, feeding, showering, dressing, and medication management is identical to that within the undated report prepared by Ms Carey and Ms Raj.[42]
[38] E1, 57.
[39] E1, 57.
[40] E1, 67.
[41] E1, 35, 67.
[42] E1, 59, 61.
Neither Ms Carey and Ms Raj, or Ms Shah, make mention that they assessed Ms Faraj together, nor collaborated when writing their respective reports. Whilst both reports appear on the same letterhead, suggesting all 3 authors at the time of their reports were employed by the same organisation, this does not of itself explain why 2 reports not jointly signed by Ms Carey, Ms Raj and Ms Shah, purportedly prepared after independent professional assessments, are in many respects word-for-word without any attribution for input from another allied health professional. In circumstances where one report is undated, and to the extent that these respective reports replicate each other without such attribution, the Tribunal cannot discern whether such observations and opinions are those of Ms Carey and Ms Raj, or Ms Shah. These reports are also now more than 2 years old. Accordingly, the Tribunal gives these reports very limited weight.
Ms Fatima Bazi (Ms Bazi), a social worker, has prepared a letter in support of Ms Faraj’s review application, however to the extent that that letter relates to Ms Faraj’s need for support worker assistance, it recites the reporting of Ms Faraj’s treating practitioner.[43] In circumstances where this letter does not express Ms Bazi’s own opinion in relation to Ms Faraj’s need for support worker assistance, the Tribunal gives it no weight.
[43] E2, 38.
Also in evidence are letters and reports prepared by Ms Faraj’s support coordinator Ms Zainab Mehanna (Ms Mehanna), registered psychologist Dr Fayza Al Shamali (Dr Al Shamali), general practitioner Dr Christopher Zaky (Dr Zaky), and physiotherapist Ms Elnajjar. In July 2022, Ms Mehanna reported that maintaining independence is very important to Ms Faraj.[44] She opined that Ms Faraj requires 24 hours per day support worker assistance to allow supervision day and night for safety, to assist with personal care, and to facilitate community access.[45] In November 2022, Dr Al Shamali reported that Ms Faraj has had recurrent falls, and is therefore scared of falling and cannot mobilise without assistance.[46] Dr Zaky reported that Ms Faraj had falls in April, June, July and September 2023; her fall in September 2023 resulted in 3 fractures in her left foot; and she requires 24 hour support worker assistance for the foreseeable future as she is a very high falls risk.[47] Ms Elnajjar reported that Ms Faraj also had a fall in November 2023.[48] Ms Elnajjar gave oral evidence to the effect that:
a) She has been treating Ms Faraj since September. She treats Ms Faraj twice a week, every week.
b) There are some safety concerns with Ms Faraj’s mobility, in many respects she is not independent, and she is a high falls risk.
c) In her opinion, Ms Faraj does have the ability to conduct transfers and she does have the capacity to mobilise, but there is a very high falls risk when she does so.
[44] E1, 15-16.
[45] E1, 15-16.
[46] E2, 17.
[47] E2, 165; E7; E8; E9, 21.
[48] E9.
Ms Beileiter, an occupational therapist, prepared a Functional Capacity Assessment Report dated 4 April 2023.[49] Ms Beileiter recommended 24/7 assistance for support with domestic tasks, meal preparation and cooking, personal care support, medication management, social interaction, and community access/transport to appointments.[50] Ms Beileiter opined that due to her high risk of falls and social isolation, Ms Faraj would benefit from 24/7 support whilst participating in capacity building therapy to reduce these care needs in the future.[51] In a letter dated 26 April 2023, Ms Beileiter stated Ms Faraj is at extreme risk of falls due to limited function, pain and fatigue, and has had over 8 falls in 12 months as a result of losing balance.[52]
[49] E2, 66.
[50] E2, 73.
[51] E2, 73.
[52] E2, 77.
Ms Beileiter’s guide for the recommended level of care Ms Faraj requires each day included 2 hours for showering, grooming and dressing; 1.5 hours for toileting; 3 hours for eating, nutrition, meal preparation; 15 minutes for medication management; 2 hours for household management; 3 to 4 hours for assistance with social interaction and community access; 1 to 2 hours per day domestic assistance; and 8 to 10 hours per day for inactive overnight care.[53] With respect to the recommended inactive overnight care, Ms Beileiter explained Ms Faraj needs assistance with toileting 3 times per night.[54] Ms Beileiter opined the recommended support would support Ms Faraj to reach her overall goals and aspiration; maximise her independence by providing her with new opportunities and support networks; and reduce burden of care and help to sustain her informal supports.[55]
[53] E2, 73.
[54] E2, 73.
[55] E2, 75.
In an email dated 19 August 2024, Ms Beileiter opined that if Ms Faraj is funded for less than 16 hours of support per day, she would be at risk of ongoing falls and hospitalisations, urinary tract infections from holding urine, malnutrition, high risk of pressure area development from prolonged periods of immobility, social isolation, and increased risk of mental health deterioration.[56] She further opined that if Ms Faraj was provided with funding for suitable equipment and home modifications, she would require funding for up to 6 hours of support per day, instead of 16 or 24.[57]
[56] E2, 166.
[57] E2, 166.
Ms Beileiter’s oral evidence was to the effect:
a) With Ms Faraj’s left side hemiplegia, her left hand and upper limb is almost non-functional to assist with mobilizing and her left leg is significantly weak. She mobilises with a single crutch under her right arm, hopping on her right leg. She is a high falls risk.
b) Given Ms Faraj’s extreme risk of falls and the fact that at the time of the assessment she was getting up around 3 times each night to use the toilet, the recommended overnight support is intended to provide supervision and assistance to mobilise to the bathroom. However, if Ms Farah were assessed for appropriate equipment, that may negate the need for overnight support. She thinks Ms Faraj would potentially be able to access a bedside commode herself, but that would need to be assessed in terms of space within her bedroom and her physical ability to transfer on and off and safety in and out of bed.
c) If Ms Faraj is not getting up overnight to go to the toilet, then she does not see a need for someone to be with her overnight except for her son for unforeseen safety reasons and circumstances. To the extent there is leakage of urine overnight, she would suggest Ms Faraj be assessed by an incontinence nurse.
d) Her estimation that Ms Faraj requires 3 hours of assistance per day for eating, nutrition and meal preparation, was based on Ms Faraj’s preference for culturally specific meals, which are more labour intensive to prepare, and are prepared fresh every day. She agreed Ms Faraj could feed herself provided food is cut up in an appropriate way.
e) Ms Faraj can communicate well, and manage her finances and personal affairs, when she doesn’t need to mobilise to do so.
f) When she opined Ms Faraj would benefit from 24/7 support whilst participating in capacity building therapy to reduce these care needs in the future, she clarified that she thinks Ms Faraj would benefit from the capacity building portion of her recommendation, so that 24/7 care could be reduced in the future.
g) She assessed Ms Faraj in April 2023, which was some time ago, and has not reassessed her since.
Ms McIntosh, an occupational therapist, completed a functional capacity assessment and provided an associated report dated 16 September 2023, and an amended report dated 15 December 2023.[58] Ms McIntosh reported Ms Faraj experiences a loss of sensation and motor control in her left arm and left leg, resulting in impaired motor skills, limited capacity to grasp or hold onto objects, muscle stiffness, muscle spasticity, poor balance, and altered walking gait.[59] Ms McIntosh recommended 5 hours of support worker assistance each weekday, and 7.5 hours of support worker assistance each Saturday and Sunday, to assist Ms Faraj with activities of daily living, meal preparation, household duties and domestic tasks, and community access.[60] This recommendation was informed by Ms McIntosh’s assessment that Ms Faraj requires:
a) A very high level of physical assistance and supervision to safely mobilise at home and in the community due to her physical deficits and high levels of anxiety around the potential of falling.[61]
b) A high level of physical assistance to access all parts of her home safely, maintain social connections that are out of her home, engage in activities of self-care, and to put mood management strategies into practice via supporting Ms Faraj to engage in mobility-based activities and decrease her fear of falling.[62]
c) No assistance to manage finances or with self-management tasks when no mobility is required, to communicate, or for cognitive support.[63]
[58] E2, 84, 123.
[59] E2, 127.
[60] E2, 149-151.
[61] E2, 135-136.
[62] E2, 133, 137, 140, 143.
[63] E2, 142, 143, 144.
Ms McIntosh appears to have overlooked drawing an express conclusion regarding the level of physical assistance Ms Faraj requires for domestic activities, however given her reported observations and recommendations, it can be inferred Ms McIntosh considered Ms Faraj requires a high to very high level of physical assistance.[64] Ms McIntosh’s guide for the recommended level of care Ms Faraj requires each day included 1 hour for morning activities of daily living, 1 hour for meal preparation, and 30 minutes for evening activities of daily living.[65] It also included 30 minutes for light household duties, 30 minutes for larger domestic duties and 1.5 hours for community access on weekdays; and 5 hours for community access on Saturdays and Sundays.[66]
[64] E2, 140-142.
[65] E2, 149-151.
[66] E2, 149-151.
At the time of her assessment, Ms McIntosh reported Ms Faraj was without formal supports as her plan funds were exhausted, and she was only mobilising and accessing the toilet when her son was home, which Ms McIntosh opined presented a risk of Ms Faraj not eating or drinking to minimise mobilising, soiling herself, or potentially falling during mobilising to make it to the bathroom.[67] To minimise safety risks during daily hours when her son is not home, Ms McIntosh opined it would be safe for Ms Faraj to remain unsupervised for 2 to 4 hours; and it would be unsafe for her to be left for a very long period (4 to 8 hours) subject to the primary risk of incontinence and accessing food.[68] Ms McIntosh acknowledged however that the risk of Ms Faraj not being able to mobilise outside of her home in the case of an acute emergency will consistently be a risk.[69]
[67] E2, 127, 128, 137, 148.
[68] E2, 144-149.
[69] E2, 149, 152.
Ms McIntosh opined that if assistance was provided to successfully engage in morning activities of daily living, Ms Faraj may not require support worker assistance until after lunch when she may have a health appointment or require assistance to go to the local shops or to assist in basic meal preparation.[70] Ms McIntosh understood that the role of overnight assistance sought by Ms Faraj would be to provide assistance for her if seeking to mobilise to the bathroom overnight.[71] Ms McIntosh did not think Ms Faraj requires overnight support, as her concerns could be managed via assistive technology, aids, and the presence of a support worker to engage in a consistent evening routine inclusive of managing activities of daily living.[72]
[70] E2, 152.
[71] E2, 152.
[72] E2, 152.
Ms McIntosh opined Ms Faraj may benefit from a range of assistive technology, including a personal alarm system to allow her to call for assistance with minimal effort, a combination of kitchen based assistive technology, a bedside commode, and incontinence aids.[73] Ms Faraj reported to Ms McIntosh that she had previously used incontinence pads which she was able to manage by herself, when on the toilet, but she prefers to limit her intake.[74]
[73] E2, 136, 140, 142, 151, 152.
[74] E2, 139.
Ms McIntosh’s oral evidence was to the effect:
a) She looks at ways a person can be as independent as possible and reduce reliance on another individual. In terms of meal preparation, this may involve the person doing online grocery orders and organising fresh food deliveries to avoid reliance on another person to complete those tasks. She understood Ms Faraj could complete such tasks as they do not require mobilisation. A person’s dignity, quality of life, and cultural preferences are considered when completing an assessment.
b) If she were to presume Ms Faraj rarely used the bathroom overnight, she would consider different types of assistive technology, such as a bedside commode and/or incontinence aids, so she could hold her independence. Based on her assessment, she was of the view Ms Faraj would be able to use a bedside commode, however her primary recommendation would be an incontinence aid.
c) In contrast to Ms Beileiter’s recommendation for overnight support, her focus would be to look at how assistive technology can be used to minimise the need for another individual being present versus having someone available to assist with that mobilisation.
d) When she assessed Ms Faraj and made recommendations regarding the support hours she requires, she understood at the time the only assistive technology available to Ms Faraj was a bidet, railings in the bathroom and toilet, an auxiliary crutch, and a modified vehicle.
e) Ms Faraj is a falls risk. She would also acknowledge how nervous Ms Faraj was mobilising herself, which has probably led to her not wanting to mobilise as much as well.
Ms Faraj’s written evidence and submissions include a statement with annexures, a response to Ms McIntosh’s report, and a response to the Respondent’s SFIC.[75] This written material is to the effect:
a) She wants to live an independent life with full autonomy.[76] Aligning the number of services with health professionals’ recommendations would significantly enhance her ability to maintain a balanced and fulfilled life.[77] As a single parent, she aims to attend to the needs of her son like any other individual not living with a disability.[78] Adequate and appropriate support services are integral to realising this aspiration, fostering independence, and enabling her to navigate her responsibilities as a parent.[79]
b) Her son’s caring responsibilities, together with his worrying about Ms Faraj, has caused tensions between he and Ms Faraj and impacted his health.[80] The level of informal care imposed upon her son is unreasonable and unacceptable.[81]
c) In the 12 months preceding October 2023, she had 4 major falls which caused severe injuries and thereafter she required more support worker assistance during recovery periods;[82] and she had 6 major falls between April and November 2023.[83]
d) The lack of adequate support from the NDIS has left her in a position where risks are taken, leading to injuries entirely preventable with sufficient support.[84]
e) Whilst the Respondent has agreed to fund a wheelchair, that is not intended for indoor use, it is only for community access, her house will not accommodate a wheelchair, and in any event, she does not yet have this assistive technology.[85]
f) With respect to Ms McIntosh’s report, 1.5 hours of support worker assistance each weekday for community access would be insufficient to facilitate her attendance at weekly medical appointments;[86] the recommended 5 hours of support worker assistance per weekday is inconsistent with Ms McIntosh’s assessment of Ms Faraj’s high care needs;[87] the suggestion that risks associated with her being left unsupervised for 4 to 8 hours could be mitigated by using incontinence pads and having food left within arm’s reach, are inconsistent with a good quality life, would impact her dignity and choice in receiving services;[88] her sleep issues, including stress, anxiety, PTSD and fear, are not appropriately addressed;[89] and reports prepared by her treating occupational therapists, which recommend 24 hours of support worker assistance per day, should be preferred.[90]
[75] E2, 116, 154, 170.
[76] E2, 154, 157.
[77] E2, 154. 157
[78] E2, 154, 157.
[79] E2, 154, 157.
[80] E2, 116, 171.
[81] E2, 171.
[82] E2, 117.
[83] E2, 156.
[84] E2, 171.
[85] E2, 170.
[86] E2, 117, 156.
[87] E2, 117.
[88] E2, 117, 156.
[89] E2, 156.
[90] E2, 117, 154, 156, 171.
Ms Farah has also provided x rays and photos of injuries she claims were caused by falls.[91]
[91] E2, 63, 159; E8; E9, 10-19.
Ms Faraj’s oral evidence was to the effect:
a) Her left side hemiplegia means she has paralysis on the left side of her body. Movement on the right side of her body is ok, although there is some pain because she puts pressure on that side of her body. She was diagnosed with epilepsy in 1997. In 2021, she injured her left knee. Since injuring her left knee in 2021, she has extreme pain and has needed more support.
b) She wants to be as independent as possible.
c) Physical mobility is her greatest difficulty. She mobilises using a single crutch and jumping, which is not safe. By holding onto the wall and hoping, or using a crutch and hoping, she can move around her house. However, she must force herself to do this, she is scared it is not safe for her to do this, nor does this make her feel good. She is scared to move an inch by herself after falling so many times. Her falls generally result from slipping or losing balance.
d) She will sometimes move around the house on her own, like when she needs to go to the toilet. She can sometimes transfer on and off the toilet herself, but that depends on how she is feeling, and her pain level. When asked in examination-in-chief how often she uses the bathroom each night, she said 3 to 4 times a night, and she does this by herself. When asked in cross-examination how many nights a week she would get up to go to the toilet, she said she does not get up much, most of the time she holds until morning with some leakage. When reminded that she had earlier given evidence that she goes to the toilet 3 to 4 times a night, she clarified that is very, very rare and most of the time she holds with some leakage. She has previously independently used incontinence pads. Whether she could use incontinence pads independently now would depend on her pain. She previously used a bedside commode in hospital. She doesn’t know whether she could currently use a bedside commode independently, if there was space in her room to have one.
e) She can stand up from the couch herself, but it takes time. From standing, she can sit down on the couch herself. When asked if she really needed to go to the kitchen from the couch, could she do so, she responded that she would prefer not to, she is too scared of falling. She then clarified that she cannot do that, it is too painful. Later in her evidence, she clarified that she can ‘sometimes’ stand up from the couch herself, but good days are rare. On a bad day, she will sometimes not move at all from the couch.
f) Whether she can dress herself depends on what she is wearing. For example, she cannot manage buttons, zippers, a bra, or shoes. She cannot lift her hand above shoulder height, which makes dressing difficult. With respect to meal preparation, she does not eat frozen food, her cultural preference is to purchase ingredients fresh each day, and to shop for ingredients and to prepare her cultural food takes 2 to 3 hours each day. She can provide instructions to a support worker whilst they prepare a meal. When the Tribunal asked whether it would be possible to gather ingredients that might last 2 to 3 days, rather than having to shop daily, she said ‘I don’t know, it’s hard’. When the Tribunal asked whether she had considered if support worker hours could be used differently across the day, so that a support worker is not with her for an 8-hour shift during the day, she said ‘impossible … there’s no way … we won’t finish’.
g) She spent 3 months in overseas during 2023. Whilst overseas, she had a maid with her all the time who did everything for her.
h) With respect to the requested support, she envisages that would include overnight support. She needs someone with her overnight all the time in case she needs to go to the toilet, or she needs a drink, or in case something happens. She always fears something will happen to her. What scares her most is her safety, and how she can be safe to the maximum point every day.
i) At the time of the hearing, plan funds were exhausted, and no formal supports were in place. This had been so for approximately 2 months. Those funds were exhausted because she used the money for 24/7 support worker assistance, despite knowing she was not funded for that intensity of support. She cannot risk being in danger. Currently, each morning her son helps her to get to the toilet and then takes her to the couch. The school principal allows her son to have his phone with him during class in case of an emergency. After school, her son calls to check what she needs him to collect from the shops. Other times they use UberEATS. Her son worries about her condition and her falls. Whilst her son is at school, she is seated on the couch. When seated on the couch in her living room, she watches television and uses her phone and iPad. She can reach and drink from a water bottle, and she can feed herself food from a plate placed on a coffee table provided the food is cut up. She does not need any support when she is seated on the couch. When she has support workers, they do everything for her, she does not spend the whole day on the couch, her life changes completely.
j) Whilst this matter has been before the Tribunal, her plan funds have been exhausted 2 to 3 times before her plan end date. This keeps happening because she is using 24/7 care. There have been periods in the past when she had no formal supports because her plan funds were exhausted. That has been the case multiple times. During those periods, she couldn’t really get around the house, she stayed on the couch most of the time, a friend would occasionally take her to a medical appointment and help her to shower. Her brother and sister-in-law will sometimes help her go out when needed. She relies on her son more when she has no funds for formal supports, however he has school and work commitments. The only reason she uses funds for 24/7 care is because of her risk of falls. She could not recall whether her falls occurred during periods when she had exhausted her plan funds and had no formal supports in place. She agreed that having no formal supports in place for periods of time is not a good situation for her, or for her son.
For the following reasons, the Tribunal is not satisfied that the requested 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.[92]
[92] s 34(1)(c).
Ms Faraj’s evidence is that she always needs someone with her overnight in case she needs to go to the toilet, needs a drink, or something happens. In circumstances where Ms Faraj can independently utilise a drink bottle during the day provided it has been filled for her and left within her reach, it seems improbable she could not do so overnight. She gave evidence that it is very, very rare that she gets up to go to the toilet during the night; rather she will usually hold until the morning, with some leakage. The Tribunal accepts that evidence and finds accordingly.
Ms Mehanna, Dr Zaki and Ms Beileiter have each recommended that Ms Faraj needs 24 hours of support worker assistance per day. The degree to which Ms Mehanna’s recommendation is based on reports prepared by Ms Faraj’s allied health professionals, rather than her own opinion, is unclear. Further, the Tribunal does not consider that a support coordinator is appropriately qualified to assess the extent of an individual’s need for support worker assistance. Whilst Dr Zaki opines Ms Faraj requires constant support because she is a falls risk, Dr Zaki has not explained how a support worker would support Ms Faraj, why he considers constant support is required to address the risk of falling, why a lower intensity of support would be insufficient, or if indeed he turned his mind to that consideration. For these reasons, the Tribunal gives limited weight to Ms Mehanna’s and Dr Zaki’s evidence, as it relates to Ms Faraj’s need for overnight support.
In April 2023, having understood that Ms Faraj was going to the toilet 3 times each night, Ms Beileiter recommended 8 to 10 hours of overnight support worker assistance. However, at the hearing Ms Beileiter gave evidence that if Ms Faraj is not currently getting up overnight, then she does not see a need for an overnight support worker. Ms McIntosh’s evidence is that she does not think Ms Faraj needs overnight support. Based on her assessment of Ms Faraj, Ms McIntosh was of the view Ms Faraj could use a bedside commode, however her primary recommendation to address Ms Faraj’s concerns would be incontinence aids. Ms McIntosh has also recommended a support worker engage in a consistent evening routine inclusive of managing activities of daily living, which the Tribunal understood would be intended to set Ms Faraj up to be without support worker assistance overnight. Ms McIntosh explained she looks for ways a person can be as independent as possible and reduce reliance on another individual, while considering a person’s dignity, quality of life, and cultural preferences.
The Tribunal found Ms McIntosh’s evidence to be measured and persuasive. Her stated approach when assessing Ms Faraj, as outlined in paragraph [47], is consistent with the objectives and principles in the NDIS Act, in particular the objective to support the independence of people with disability, and the principle that reasonable and necessary supports for people with disability should support people with disability to pursue their goals and maximise their independence.[93] Ms McIntosh’s assessment of Ms Faraj was also more recent than Ms Beileiter’s, and Ms Beileiter’s April 2023 evidence was based on an outdated understanding that Ms Faraj was getting up to go to the toilet 3 times every night. For these reasons, with respect to Ms Faraj’s need for overnight support, the Tribunal has preferred Ms McIntosh’s evidence to Ms Beileiter’s April 2023 evidence and finds Ms Faraj does not need overnight support. In making this finding, the Tribunal acknowledges that Ms Faraj would prefer to have a support worker with her overnight and would feel safer if that were the case. However, there is a distinction to be drawn between the support a person would like or subjectively feel safe with, and the support a person requires. Such a distinction is important when considering the cost of a support, the benefits that will be achieved by funding a support, and the need to ensure the financial sustainability of the NDIS.
[93] ss 3(1)(c) and 4(11)(a).
Whilst the Tribunal has found Ms Faraj does not require overnight support, there remains 16 hours in each day. A question arising on review is how much support worker assistance Ms Faraj requires over that 16-hour period.
Ms Faraj’s evidence is that she has experienced numerous falls resulting in injury and pain, and she is extremely fearful of falling. Photos of Ms Faraj show bruising and injuries, and there are x-rays of her left foot dated September 2023. That evidence is corroborated by Dr Zaky and Ms Elnajjar, who reported that Ms Faraj had falls in April, June, July, September and November 2023, with the September 2023 fall resulting in 3 fractures in her left foot; Dr Al Shamali and Ms Beileiter who reported Ms Faraj has developed significant fear of mobilising as she is concerned she will fall; and Ms McIntosh who observed Ms Faraj to be very anxious when mobilising.[94] Ms Beileiter and Ms McIntosh both opined Ms Faraj is a high falls risk. The Tribunal accepts Ms Faraj has fallen on numerous occasions, and that those falls have resulted in injury and pain. The Tribunal also accepts Ms Faraj is genuinely fearful of falling and is a falls risk. It is unclear on the evidence whether Ms Faraj’s falls have occurred during periods when her plan funds have been exhausted and she has had no formal support, whilst she was using her plan funds for 24/7 support worker assistance, or in both of those circumstances. In any event, whilst the Tribunal accepts that a support worker’s presence may reduce the risk of Ms Faraj falling, it does not consider such assistance completely obviates that risk.
[94] E2, 68, 133.
Consistent across the evidence is that Ms Faraj has very limited informal support.[95] Many of Ms Faraj’s friends reside overseas, her mother is aged and unable to provide support, she does not have an ongoing relationship with her former husband or his family, her close friend who has sometimes helped her to shower and wash her hair is very busy with 3 children, her son attends school and work, her brother lives close by but has his own family responsibilities, and her relationship with other family members is strained. The Tribunal accepts this evidence. The Tribunal also considers that the extent of care Ms Faraj’s son has been providing when Ms Faraj’s plan funds have been exhausted and she is without formal support is unreasonable for a 16-year-old child, and potentially detrimental to his health and wellbeing.
[95] E1, 14, 30-31, 58, 67; E2, 16, 126.
Ms Beileiter has recommended Ms Faraj be supported for the entire 16-hour period. In contrast to that, Ms McIntosh has recommended she be supported for 5 hours each weekday, and 7.5 hours each Saturday and Sunday. Whilst Ms Beileiter’s and McIntosh’s recommendations are significantly different, their respective assessments of Ms Faraj’s functional capacity were not. At a high level, they each generally assessed that Ms Faraj requires assistance with community access, most self-care tasks, and domestic tasks including laundry, cleaning, tidying and meal preparation. They each acknowledged Ms Faraj’s mobility is significantly impacted by her left side hemiplegia and pain and assessed that she requires assistance to mobilise further than a short distance, with some transfers, and to carry things. The Respondent does not dispute, and the Tribunal similarly accepts, that Ms Faraj requires assistance with the abovementioned tasks and activities.[96]
[96] Respondent’s closing submissions.
Having considered the tasks and activities Ms Faraj requires assistance to complete, and the very limited informal support available to her, the Tribunal does not consider the total number of support worker hours recommended by Ms McIntosh would be sufficient. Leaving aside for one moment Ms Faraj’s risk of falls, the Tribunal does not accept that it would take 16 hours each day for a support worker to assist her to compete the tasks and activities for which she needs assistance. The Tribunal notes that the breakdown of recommended hours in Ms Beileter’s report, excluding overnight support, total less than 16 hours. Further, the breakdown of hours in Ms Beileiter’s report, on which Ms Faraj relies, appears excessive. For example:
a) Ms Beileter estimates 3 hours of support worker assistance is required each day for meal preparation because of Ms Faraj’s cultural preference to shop every day for ingredients and prepare traditional fresh meals which are time consuming. However, the Tribunal considers that there is more than one way to give effect to Ms Faraj’s cultural preferences, such as shopping 2 or 3 times each week for fresh food, rather than every day; and preparing a traditional fresh meal that can be enjoyed for both lunch and dinner. Such adjustments would in the Tribunal’s view significantly reduce the time a support worker is required for meal preparation.
b) Ms Beileiter recommends 3 to 4 hours each day for household management and domestic assistance, however the Tribunal is not persuaded on the evidence before it that such tasks would in fact take more than 1 hour each day.
Ms Beileiter’s recommendation for constant care was reportedly based on Ms Faraj’s risk of falls. In contrast to this, Ms McIntosh has opined that during the day, Ms Faraj could be at home on her own for 2 to 4 hours at a time, albeit not without risk in the event of an emergency such as a fire. The Tribunal accepts Ms Faraj’s evidence that she wants to be as independent as possible, and notes that the goals included in her plan are consistent with that. The Tribunal also accepts Ms Faraj’s evidence that she does not require support to sit on the couch, and whilst on the couch she can, without assistance, reach for and use her drink bottle, phone and iPad; watch television; and reach for and eat food, provided it is cut up. Based on that evidence, and in the pursuit of maximising Ms Faraj’s independence whilst at the same time mitigating her risks, the Tribunal prefers Ms McIntosh’s evidence on this point, and finds it would be safe for Ms Faraj to remain unsupervised for 2 to 3 hours at a time. The Tribunal considers that if support worker assistance was routinely scheduled such that Ms Faraj was well prepared for scheduled breaks between shifts, her need to mobilise during those breaks would be infrequent, if at all. Accordingly, the Tribunal finds that support worker assistance could be scheduled in shifts, with breaks of up to 3 hours.
Based on the findings as outlined above, the Tribunal considers that if Ms Faraj were to use her existing funding for support worker assistance optimally, with no overnight support and breaks in support worker shifts of up to 3 hours, her needs will be met, her risks will be well mitigated, and her independence will be maximised. The Tribunal therefore finds there are comparable supports – being Ms Faraj’s existing funding for support worker assistance used optimally – which would achieve the same outcome at a substantially lower price than the requested support.[97]
[97] Supports Rules, r 3.1(a)
Whilst the Tribunal accepts Ms Faraj would feel safer if she were to have as support worker with her for 16 hours a day, it is not persuaded that funding support worker assistance which exceeds her needs will enhance her independence, build her functional capacity, or completely negate her risk of falling. For these reasons, the Tribunal finds the requested support will not substantially improve the life stage outcomes for, and be of long-term benefit to, Ms Faraj;[98] and nor will funding the requested support be likely to reduce the cost of the funding of support for Ms Faraj in the long term.[99] Further, funding more support worker assistance than is in fact required will prematurely increase Ms Faraj’s reliance on another person. This would not increase her independence, nor reduce her need for other kinds of supports.[100]
[98] Supports Rules, r 3.1(b).
[99] Supports Rules, r 3.1(c).
[100] Supports Rules, r 3.1(c).
The requested support does not involve the provision of equipment or modifications. The evidence does not suggest, nor does the Respondent contend, that the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which Ms Faraj resides. Accordingly, the matters prescribed in rules 3.1(d) and 3.1(e) of the Supports Rules do not weigh for or against the Tribunal’s consideration of whether the requested support meets the requirement in s 34(1)(c).
Having considered Ms Faraj’s circumstances, and those matters prescribed in rule 3.1 of the Supports Rules, the Tribunal is not satisfied that the requested 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. It follows that the requested support does not meet the requirement in s 34(1)(c).
For completeness, even had the Tribunal been satisfied the requested support represents value for money for the purposes of s 34(1)(c), the Tribunal is not satisfied the requested support will be, or is likely to be, effective and beneficial for Ms Faraj, having regard to current good practice.[101] In evidence are numerous recommendations for increased support worker assistance. The Tribunal has already discussed why it has given limited to no weight to some of those opinions, and why it has preferred certain expert opinion over other expert opinion. Having considered the evidence, and the weight to be given to that, the Tribunal has found Ms Faraj does not require overnight support, and that it would be safe for Ms Faraj to remain unsupervised for 2 to 3 hours at a time. The Tribunal has also determined that if Ms Faraj were to use her existing funding for support worker assistance optimally, with no overnight support and breaks in support worker shifts of up to 3 hours, her needs will be met, her risks will be well mitigated, and her independence will be maximised. Whilst Ms Faraj’s lived experience is that she feels safer when a support worker is present, the Tribunal has not been persuaded that funding support worker assistance which exceeds Ms Faraj’s needs as the Tribunal has found them to be, will enhance her independence, build her functional capacity, or completely negate her risk of falling. Having considered Ms Faraj’s circumstances, and the matters prescribed in rule 3.2 of the Supports Rules, the Tribunal is not satisfied the requested support will be, or is likely to be, effective and beneficial for Ms Faraj, having regard to current good practice. It follows that the requested support does not meet the requirement in s 34(1)(d).
[101] s 34(1)(d).
In circumstances where the requested support does not meet the requirement in s 34(1)(c) or s 34(1)(d), the requested support is not reasonable and necessary and will not be funded in Ms Faraj’s SOPS.
Self-management
Ms Faraj is requesting that funding for supports under her plan be self-managed. The Respondent contends Ms Faraj has, and continues to, over-utilise funds within her SOPS.[102] On that basis, the Respondent contends that Ms Faraj’s management of the funding for supports under the plan would present an unreasonable risk to Ms Faraj, and is likely to cause harm to Ms Faraj or pose a risk to her son.[103]
[102] Respondent’s SFIC, [43]; Respondent’s oral closing submissions.
[103] Respondent’s SFIC, [43]; Respondent’s oral closing submissions.
Ms Faraj maintains she effectively self-managed the funds in her plan for many years, her capacity to self-manage is not affected by her impairments, and self-management enables her to optimize the utilisation of her plan funds.[104] The Tribunal broadly accepts that when Ms Faraj was self-managing the funds within her plan she felt more autonomous, had greater flexibility regarding which service providers she engaged, and successfully negotiated rates with providers that were less than the maximum rates prescribed in the NDIS Pricing Arrangements and Price Limits.
[104] E2, 154, 157, 172.
With respect to Ms Faraj’s capacity to make decisions and to manage finances, Ms Beileiter reported Ms Faraj can make her own decisions and is very clear in her wishes and plans.[105] Ms Beileiter also reported that Ms Faraj manages her finances independently by keeping track of paperwork, relies on her son to pay bills at the post office as needed using her credit card, and has the capacity to understand cost and value.[106] Ms McIntosh opined Ms Faraj does not require any assistance for cognitive supports.[107] Ms McIntosh also opined Ms Faraj does not require any assistance in managing finances, unless she is required to mobilise to a certain destination such as a bank, Centrelink, or the NDIS.[108] On the basis of Ms Beileiter’s and Ms McIntosh’s evidence, the Tribunal finds Ms Faraj does have the capacity to make decisions and to manage finances.[109]
[105] E2, 70.
[106] E2, 70.
[107] E2, 144.
[108] E2, 142.
[109] Plan Management Rules, rr 3.8(c) and 3.8(d).
The evidence does not suggest Ms Faraj is vulnerable to physical, mental or financial harm; exploitation; or undue influence.[110] Nor is there any order under which Ms Faraj’s property or affairs are to be managed by another person.[111]
[110] Plan Management Rules, r 3.8(b).
[111] Plan Management Rules, r 3.8(e).
Irrespective of whether Ms Faraj effectively self-managed her plan for many years, her oral evidence in relation to her utilisation of plan funds since making her application to the Tribunal was clear and unambiguous. Ms Faraj’s oral evidence was to the effect she has over-utilised plan funds whilst this application has been before the Tribunal; she has used plan funds for 24/7 support worker assistance despite knowing she was not funded for support at that intensity; this overutilisation has resulted in the exhaustion of her plan funds before her plan review date; and the early exhaustion of her plan funds has on more than one occasion seen her with no funding for support worker assistance. The Tribunal accepts this evidence and finds accordingly.
When Ms McIntosh assessed Ms Faraj on 1 September 2023, Ms Faraj reported to her that she had no formal supports at that time and was heavily dependent on her son for assistance with activities of daily living and household maintenance.[112] Ms Faraj also reported to Ms McIntosh that her plan funds were exhausted before she travelled overseas in May 2023, and as a result she had not engaged with formal services including physiotherapy, occupational therapy, and psychology.[113] In April 2023, Ms Beileiter reported that as at April 2023, due to limited funding through her plan, Ms Faraj was not receiving any assistance from support workers, and she was having significant difficult managing at home and relies heavily on her son for assistance beyond what is considered reasonable for an adolescent.[114] She had been without support for several months, and her mental and physical health were deteriorating as a result.[115] She had experienced several falls during this time.[116]
[112] E2, 128.
[113] E2, 129.
[114] E2, 67.
[115] E2, 67.
[116] E2, 67
At the hearing, the Tribunal put to Ms Faraj that it appeared her prior exhaustion of plan funds which had resulted in her having no formal support, was at least in part caused by her decision to engage 24/7 support worker assistance when she was not funded for that. The Tribunal informed Ms Faraj that it considered this relevant to its consideration of whether self-management would present an unreasonable risk to her. In reply to this, Ms Faraj gave oral evidence to the effect:
a) The only reason she is using 24/7 care is because of her risk of falls. She has fallen many times and cannot take a risk.
b) If the Tribunal were to determine the requested support was reasonable and necessary, she would ensure she used the funding properly because ‘this is the final decision’. She then clarified that if she broke her leg or arm, or if something really bad happened to her, she may have to use her plan funds for 24/7 care, but she would in those circumstances ensure she used the remaining funds in a way that they lasted for the plan’s duration.
c) She does not mind being Agency managed if that is what the Tribunal decides, if she has the right funding that can last her for a whole year.
There is no question that Ms Faraj needs support worker assistance, and the Tribunal has already found that excluding overnight support, it is not safe for her to be left alone for more than 3 hours at a time in her current circumstances. It is therefore of significant concern to the Tribunal that Ms Faraj has on more than one occasion exhausted her plan funds before her plan review date, leaving her with no support worker assistance. The Tribunal has determined that support worker assistance in addition to that already funded in Ms Faraj’s plan is not reasonable and necessary. In circumstances where this decision will result in a plan with less funding for support worker assistance than Ms Faraj says she needs, the Tribunal considers there is a very real chance she will over utilise her plan funds to engage the support worker assistance she feels safe with, rather than the support worker assistance that is reasonable and necessary. Ms Faraj’s evidence as outlined above at paragraph [67] has not persuaded the Tribunal otherwise. This would again leave Ms Faraj in a position where she does not have any access, or sufficient access, to support worker assistance. This would likely compromise her to access capacity building supports, her care needs may go unmet, and her risk of injury from a fall would be heightened. It follows that the Tribunal considers material harm could result to Ms Faraj if she were to manage the funding for supports in her plan.
Ms Faraj has submitted that any potential risk arising from her self-managing the funds within her plan could be mitigated by the provision of support coordination and regular plan reviews.[117] However, the Tribunal notes that Ms Faraj has been funded for support coordination in each of the plans which have been in place since she made this application for review to the Tribunal.[118] Further, the plans in place during the time this matter has been before the Tribunal have been of varying lengths.[119] For these reasons, the Tribunal does not consider that support coordination and regular plan reviews, or any other safeguards or strategies the Agency could put in place through Ms Faraj’s plan, would mitigate any risks arising from self-management.[120] Nor does the evidence suggest Ms Faraj’s informal network could mitigate any such risks.[121]
[117] E2, 172.
[118] E1, 83, 97; E3, 30, 42, 54, 67.
[119] E1, 71, 86; E3, 11, 23, 35, 47, 59.
[120] Plan Management Rules, r 3.8(f)(ii).
[121] Plan Management Rules, r 3.8(f)(i).
Having regard to those matters prescribed in rule 3.8 of the Plan Management Rules, and the weight to be given to each of those, the Tribunal is satisfied that Ms Faraj’s self-management of funding for supports under the plan would present an unreasonable risk to her.[122] It follows that the Applicant’s request to self-manage the funds in her plan is refused.[123]
[122] s 44(1)(b)(i).
[123] s 43(3)(b).
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding seventy-one (71)
paragraphs are a true copy of the reasons
for the decision herein of General Member L Proske
…………[SGND]…………………..
AssociateDated: 4 February 2025
Date of hearing: 27, 28, 29 November 2024
Applicant: Self-represented
William Robin (advocate)
Counsel for the Respondent: Hannah Robinson
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