Faraj and National Disability Insurance Agency (NDIS) - [2025] ARTA 2004

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 852
Secondary Materials
NDIS Guideline, ‘Reasonable and Necessary Supports’ updated 22 September 2024
NDIS Guideline, ‘Creating your plan’ updated 3 October 2024

NDIS 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Faraj and National Disability Insurance Agency (NDIS)

Details

AGLC: Faraj and National Disability Insurance Agency (NDIS) [2025] ARTA 2004
Case: [2025] ARTA 2004
Decision Date: 4 February 2025

CaseChat Overview and Summary

Faraj, a self-represented applicant, sought a review of a decision by the National Disability Insurance Agency (NDIS) concerning the amount of support worker assistance to be funded under her Statement of Participant Supports (SOPS). The dispute was heard by the Tribunal, which was required to determine whether the NDIS's decision to not fund the requested 16 hours per day of support worker assistance was reasonable and necessary. The applicant argued that the requested support was essential for her self-management, while the NDIS contended that the support was not value for money and would not assist in achieving the goals outlined in her plan.

The Tribunal considered the evidence and submissions from both parties, focusing on the criteria set out in the Plan Management Rules, including the factors prescribed in rule 3.8. The Tribunal assessed the reasonableness and necessity of the requested support by examining the costs relative to the benefits and the effectiveness of the support in achieving the participant's goals. The Tribunal found that the self-management of funding for the requested support would present an unreasonable risk to the applicant. Consequently, the Tribunal concluded that the requested support was not reasonable and necessary.

The Tribunal affirmed the NDIS's decision not to fund the requested 16 hours per day of support worker assistance. The Tribunal found that the amount of support funded in Ms Faraj’s current plan was reasonable and necessary. The Tribunal's decision was based on the evidence presented, which indicated that the current level of support was sufficient to achieve the goals outlined in Ms Faraj’s plan without imposing an unreasonable risk on her self-management of the funding.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 2025Date of hearing: 27, 28, 29 November 2024Applicant: Self-representedWilliam Robin (advocate)Counsel for the Respondent: Hannah Robinson

Ratio Decidendi

Legal Principle Established

The Tribunal has considered the written evidence, oral evidence and submissions referred to above at paragraphs [18] to [20]. CONSIDERATION16 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.