FBHL and National Disability Insurance Agency

FBHL and National Disability Insurance Agency [2024] AATA 304 (27 February 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number:2022/3159
Re:FBHL
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson AM
Date:27 February 2024
Place:Brisbane

Pursuant to section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal decides that the decision under review made on 25 March 2022 pursuant to section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) is to be set aside and remitted back to the respondent to reconsider within 28 (twenty-eight) days of this decision.
.............................[SGD]...............................
Senior Member P J Clauson AM
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – supports – home modifications – reasonable and necessary criteria - private carers room – whether the funding or provision of the support takes account of what it is reasonable to expect families, carers and the community to provide – storage room - value for money –– decision under review set aside and remitted for reconsideration.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules2013
Cases
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Secondary Materials
NDIS Operational Guidelines – Home Modifications Operational Guideline
NDIS Operational Guidelines – Including Specific Types of Supports in Plans
NDIS Operational Guidelines – Planning
NDIS Operational Guidelines – Reasonable and Necessary Supports Operational Guideline
NDIS Pricing Arrangements and Price Limits 2022-23
REASONS FOR DECISION
Senior Member P J Clauson AM
27 February 2024
INTRODUCTION

FBHL is a participant of the National Disability Insurance Scheme (the Scheme). On 15 December 2021 a delegate of the National Disability Insurance Agency (the Agency) approved a statement of participant supports (SOPS) with a review date of 15 December 2022 (the 2021 SOPS).
In March 2022 FBHL requested an internal review of the 2021 SOPS and was thereafter notified pursuant to section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) that the delegate had decided to affirm their earlier decision to approve the 2021 SOPS (the decision under review).[1]
[1] Joint Court Book, Tab 25: T Documents, T2.
On 15 April 2022 FBHL applied to the Administrative Appeals Tribunal (the Tribunal) for review. In her application, she requested home modifications by way of a private carers room and a storage room (the home modifications).
She is represented by her mother (M) and supported by Sara Martins from Queensland Advocacy for Inclusion.
BACKGROUND OF THE APPLICANT
FBHL is 15 years old. She is diagnosed with:
·traumatic brain injury
·an intellectual disability
·cerebral palsy
·a chromosomal condition
·hearing loss
·a visual impairment
·speech impairment (CRM).
She lives with her mother, father and two younger siblings on their cattle property in rural Queensland. Her mother runs the property and looks after the three children. Her father works as a cattle truck driver and is often away from home for his work.[2]
[2] Joint Court Book, Tab 4(c).
FBHL is non-verbal and non-mobile. She is primarily cared for by her mother and enjoys spending time with her family and visiting her grandparents who live some 40 minutes and 3.5 hours away.
FBHL is unable to attend a mainstream school due to her conditions and is exempt from compulsory schooling.[3] She stays at home under the constant supervision of her mother and support workers.
[3] Joint Court Book, Tab 7(d); Tab 12.
Her current SOPS includes high-intensity support workers for 24 hours a day, including 8 hours of “active overnight care” which means support workers are paid to remain awake throughout the night so they can monitor FBHL and attend to her needs as they arise.
FBHL’s family home has five bedrooms (the fifth is used as an office) and two separate living areas comprising a lounge room connected to a dining room and a playroom/family room. Along the external wall to FBHL’s bedroom is a laundry and an open carport.
ISSUE BEFORE THE TRIBUNAL
The issue before the Tribunal is to determine whether the carers room and the storage room are “reasonable and necessary” supports for FBHL that should be funded by the Agency.
RELEVANT LEGISLATIVE FRAMEWORK
Section 34 of the NDIS Act identifies what constitutes a “reasonable and necessary" support for the purposes of the NDIS Act, and provides as follows:
Reasonable and necessary supports
(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:
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 most appropriately funded or provided through the NationalDisability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
i.as part of a universal service obligation; or
ii.in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
Section 34(1) is cumulative and therefore all the criteria must be met.
The phrase reasonable and necessary is not defined in the NDIS Act. It is a composite phrase and should be considered as such. In McGarrigle v National Disability Insurance Agency (McGarrigle), Mortimer J stated as follows:
“Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary support”.[4]
[4] [2017] FCA 308 at [19].
CONTENTIONS
The Agency contends that both home modifications do not meet the requirements of:
·Section 34(1)(a)
·Section 34(1)(b);
·Section 34(1)(c); or
·Section 34(1)(e).
RELEVANT RULES AND GUIDELINES
Reasonable and necessary supports
The Tribunal applies the criteria in section 34 of the NDIS in accordance with the National Disability Insurance Scheme (Supports for Participants) Rules2013 (the NDIS Rules),[5] and also the policy set out in the Agency’s Operational Guidelines (the Guidelines) unless there is good reason not to do so.[6]
Section 34(1)(a): the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations
[5] Section 34(2) NDIS Act.
[6] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.
Relevantly, the Guidelines state that an approved support needs to help the participant pursue their goals, which considers how their disability prevents them from doing so.
Also, that “setting a goal doesn’t mean we have an obligation to fund supports that help you pursue that goal”,[7] meaning that setting a goal does not automatically mean that a support will be funded in relation to it.
Section 34(1)(b): the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation
[7] Operational Guidelines - Reasonable and Necessary Supports, page 6.
The Guidelines state that a home modification needs to help the participant to participate more in social or work life, such as by enabling them to do things more independently.[8]
[8] Operational Guidelines – Home Modifications, page 5.
This requirement is consistent with the objects of the NDIS Act and the functions of the Agency that relate to supporting the independence and social and economic participation of people with disability.
Section 34(1)(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
Rule 3.1 of the NDIS Rules relevantly provides:
Value for money
3.1     In deciding whether 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, the CEO is to consider the following matters:
(a)     whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)     whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(c)     whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d)     for supports that involve the provision of equipment or modifications:
(i)      the comparative cost of purchasing or leasing the equipment or modifications; and
(ii)     whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e)     whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f)      whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
The Guidelines also assist in this regard as follows:[9]
[9] Operational Guidelines – Planning, paragraph 10.5.
… the NDIA must also be satisfied, amongst other matters, that the home modification being considered 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 (section 34(1)(c)).
When determining whether home modifications represent value for money, the NDIA will specifically consider:
• whether the proposed home modification represents value for money when compared to the cost of other lower cost alternatives, for example less costly home modifications which reasonably achieve the same intended benefits or outcomes, or assistive technology;
• whether the proposed home modification is cost effective when compared to the cost of other supports such as assistance with the cost of moving to accessible premises; and
• the expected length of tenure for participants and whether this is commensurate to the cost of the home modifications.
…
Generally, the NDIA will fund reasonable and necessary home modifications:
• to the participant’s primary residence where, due to the impact of the participant’s
disability, the participant or their carers are unable to reasonably access and use
frequently used rooms and spaces using standard fixtures and fittings;
• when the participant’s primary residence, in its current condition, has a significant and adverse impact on the sustainability of current living and care arrangements; and
• where a suitably qualified Occupational Therapist has performed an assessment and recommended home modifications considering all possible alternatives, including the use of equipment.
…
The NDIS will generally not fund:
…
• capital building additions such as additions of rooms, stories or lifts or inclinators to allow access to multiple levels of a home or steep blocks of land. However, when considering whether the funding of items of this kind is reasonable and necessary the NDIA will also consider:
(i) whether other parts of the house can be reasonably organised as an alternative;
(ii) whether alternate accommodation which is more accessible or more easily
modified is available and the cost;
(iii) whether there are compelling factors related to the participant, their family,
community or employment which makes moving premises unrealistic; and
(iv) the long term costs and benefits of alternative funded supports against the costs
and benefits of the modifications to the home.
Section 34(1)(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.
Relevantly, rule 3.4 of the NDIS Rules states:
Reasonable family, carer and other support
3.4     In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
(a)     for a participant who is a child:
(i)      that it is normal for parents to provide substantial care and support for children; and
(ii)     whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age; and
(iii)     the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and
(iv)    whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing;
(c)     for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.
General Principles
Also relevant to this review are rules 5.1 and 5.2 which provide the “General Criteria” for supports.[10] The Agency finds that the home modifications do not meet rule 5.1(b) and 5.1(d) as follows:
[10] Rules 5.1 and 5.2, NDIS Rules.
General criteria for supports
5.1     A support will not be provided or funded under the NDIS if:
….
(b)     it is not related to the participant’s disability; 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.
In relation to rule 5.1(b), the Guidelines state that a home modification must relate to the participant’s disability. This contemplates how the home modification will help them to do things they find difficult due to their disability and whether the home modification will result in the participant needing less help.[11]
[11] Operational Guidelines – Home Modifications.
The Tribunal also has regard to section 4 of the NDIS Act which sets out General Principles guiding actions under the NDIS Act, in particular that:
(3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime;
and
(10) People with disability should have their privacy and dignity respected.
FBHL’s position
The home modifications that FBHL seeks are as follows:
·A private carers room, to be made by converting the laundry that is adjacent to her bedroom and is estimated to cost between $32,075.67 and $34,676.40 (the carers room);[12] and
·A storage room, to be made by converting part of the carport into a weatherproof, animal-proof and ventilated room for the purpose of securing the FBHL’s disability related equipment and is estimated to cost between $26,651.52 and $28,555.20 (the storage room).[13]
[12] Joint Court Book, Tab 11(b) and 11(d).
[13] Joint Court Book, Tab 11(b) and 11(e).
FBHL submits that the carers room is a reasonable and necessary support because:[14]
·A carers room will provide a space for her support workers to place their belongings and provide her with support without disturbing her family. This will help her achieve the following goal included in her SOPS:
“I want to ensure my Mum and family are happy and healthy and do not
have carer burn out” (section 34(1)(a));
·Her social and economic participation within the family home is limited by the constant presence of social workers and, without this disturbance to her family, her siblings are more likely to be interested in spending more quality time with her 34(1)(b));
·If her support workers are provided with a private sleeping area they can be engaged at the lower funded rate of “sleepover” supports rather than the currently funded rate of “active” overnight supports, which will reduce the costs of her other supports and represent value for money (section 34(1)(c));
·It is not reasonable to expect her family to fund the storage room because if she did not have her disability it is likely that the house would meet her needs as a teenager (section 34(1)(e)).
[14] Transcript of Proceedings, page 7 lines 30-44.
FBHL submits that the storage room is a reasonable and necessary support because:[15]
·She needs proper storage of her equipment and consumables, which currently interfere with her family’s daily functioning, to pursue her following goals:
“I would like to increase my independence and happiness in the home…
I want to increase my mobility (gross and fine motor skills), communication skills, personal care (including self-feeding and toileting) and emotional regulation” (section 34(1)(a));
·Proper storage of her items will facilitate her social and economic participation by reducing the future needs for their repair and maintenance and making them readily accessible to her family and support workers for use (section 34(1)(b));
·The storage room represents value for money when considering the benefits to FBHL, her family and her support workers which include the longevity, safety and hygiene of the disability-related items, improved circulation space and reduced congestion and trip hazards around the home. Also, that without the storage room, she will require further funding for a support worker for two hours each day to clean and sanitise equipment that is stored outdoors (section 34(1)(c)); and
·It is not reasonable to expect her family to provide the storage room because her need for storage is substantially greater than that of children who do not have high-supports needs and not something that is usual for parents of a 15-year-old child to provide (section 34(1)(e)).
[15] Transcript of Proceedings, page 7 line 44 to page 8 line 21.
The Agency’s position

The Agency maintains that the home modifications are not “reasonable and necessary” supports pursuant to the mandatory criteria set forth in section 34 of the NDIS Act.
The Agency is not satisfied that the carers room meets the reasonable and necessary criteria because:
·There is a “tenuous” link between FBHL’s goals, objectives and aspirations and the carers room (section 34(1)(a));
·There is a lack of evidence to support that the carers room will assist FBHL to undertake activities that facilitate her social and economic participation (section 34(1)(b));
·There is no evidence that the carers room will improve life stage outcomes for FBHL, be of long-term benefit to her, increase her independence or reduce her need for other kinds of supports (section 34(1)(c)); and
·It is reasonable to expect FBHL’s family to fund the storage room because her family members will benefit the most from it (section 34(1)(e)).
The home modifications for the storage room as proposed will include the building of a new laundry for FBHL’s family home in the enclosed garage space. Consequently, the Agency is not satisfied that the storage room meets the “reasonable and necessary” criteria for reasons as follows:
·Any benefit of the storage room for FBHL is secondary and nominal to the benefits of convenient storage and a new laundry for her family, and the evidence does not show how it will assist her to pursue her goals, objectives and aspirations (section 34(1)(a));
·There is a lack of evidence to support that the storage room will assist FBHL to undertake activities that facilitate her social and economic participation (section 34(1)(b));
·There is no evidence that the storage room will improve life stage outcomes for FBHL, be of long-term benefit to her, increase her independence or reduce her need for other kinds of supports, or that comparable supports that may achieve the same outcome at a substantially lower cost have been considered. In respect of comparable supports, the Agency considers that a well-sealed shed may be a viable and more cost-effective option and further contemplates the alternatives of shelving in the carport and a combined carer room/storage room (section 34(1)(c)); and
·It is reasonable to expect FBHL’s family to fund the carers room because it is primarily for the benefit of her family members to have her equipment out of sight and to use the new laundry (section 34(1)(e)).
EVIDENCE BEFORE THE TRIBUNAL
The parties have lodged a substantial volume of reports and statements and also provided oral evidence at the hearing. The Tribunal has reviewed all evidence put before it and summarises what it considers relevant to this decision as set out below.
Evidence of FBHL’s mother
FBHL’s mother M gave evidence at the hearing and has provided statements of her lived experience to support the request for the home modifications.
M also kept a Night Diary over a two-week period recording the times she attended to FBHL during an eight-hour overnight shift and what kind of care she provided.
The carers room
M submits that the carers room is the easiest and most cost-effective solution for FBHL’s support workers to stay as close as possible to FBHL during the overnight shift when they need to safely care for her and attend to her quickly, whilst maintaining their privacy and the privacy of FBHL’s family.[16]
[16] Transcript of Proceedings, page 14, lines 40-44.
M described FBHL’s bedroom as having a large hospital bed in the centre with storage cupboards around the walls and a hoist in the ceiling for transfers. She does not consider that another bed can be put in the room and further stated that it is “impossible” to find support workers who would be willing to sleep on a mattress on the floor in FBHL’s bedroom.[17]
[17] Transcript of Proceedings, page 14, lines 37-39.
In the context of finding support workers for FBHL, M stated that they must be trained for a long period of time and know FBHL “really really well”. She considers that FBHL’s high support needs, the high level of skill and training required and the family’s rural location make it difficult for her to find dedicated, available support workers.
M confirmed that she does not have much success with sourcing support workers from agencies and refers to current support workers for FBHL engaged privately who are not available for overnight shifts.
M said that she had one support worker providing overnight support who was happy to sleep on a mattress in the playroom, which is a shared space outside FBHL’s bedroom with a TV. M stated this arrangement meant that her other two children could not watch the TV or anyone else otherwise use the playroom.
Another support worker, she said, also slept on a mattress in the playroom and would not want to continue to do so. M considers that it is not an adequate solution because FBHL’s siblings must walk through the playroom to access their bedrooms so they “kind of almost need to walk over the carer”.
M described having support workers in the home as “very invasive”, particularly when FBHL is in bed and the rest of the family use the common areas of the house for quiet activities and watching TV.
She considered that their family relationships are impinged upon when a support worker is present. M considers this particularly affects her other children who find it annoying to have support workers in the house all the time and that they have complained a couple of times.[18]
[18] Joint Court Book, Tab 14.
M raised these privacy concerns in the context that FBHL will require overnight support workers for the rest of her life and stated that there are long-term impacts on the family from the nightly presence of carers to be considered.
M also spoke about the type of care and support required for her daughter. She stated that FBHL needs one-on-one supervision all day and a lot of support at night. Generally, FBHL requires oxygen when she is sleeping and when she is unwell.
In regard to the overnight care for FBHL M stated that she mostly provides this care herself. She stated that FBHL goes to bed around 8:00pm and then will, on an “okay” night, take a couple of hours to settle down.
On these nights, M or the support worker can go to sleep and attend to FBHL when they are alerted by her monitors. FBHL also has alarms in place for routine checks every couple of hours although M considers that these checks do not take very long if FBHL is having a good night.
On other nights, M or a support worker will need to monitor FBHL to ensure she doesn’t roll onto her back, administer pain relief, adjust her oxygen levels, reposition her and clean up any mess. M considered that the level of care that FBHL requires fluctuates significantly and that “her nights are just unpredictable. I can’t say how they’re going to be from one night to the next.”[19]
[19] Transcript of Proceedings, page 23, lines 46-47.
In her Night Diary M referred the issues that FBHL experiences such as vomiting, retching and pain episodes which become “significantly more serious” during the night, and considered that FBHL’s issues during the night have worsened. She stated that FBHL’s cares have become more difficult to manage as she gets bigger and that it is now “extremely concerning” when a support worker cares for FBHL through the night.[20]
[20] Joint Court Book, Tab 7(c).
She raised these concerns in the context of support workers not being able to attend to FBHL quickly enough from the loungeroom, which is situated further from FBHL’s bedroom than the playroom. M stated that sound monitors are placed in FBHL’s bedroom to alert support workers when she needs assistance although that they are not sufficient as accidents have happened when support workers have not heard the monitors properly and FBHL has vomited or rolled into a dangerous position.
In this regard, M considers that FBHL “requires complex and continuous care throughout the whole night”.[21] Her Night Diary confirms that M wakes up around eight times each night that she cares for FBHL.
[21] Joint Court Book, Tab 7(b).
M maintains that overnight care for FBHL on better nights can be a “sleepover” shift, whereby the support worker would provide active care for no more than two hours and can otherwise go to sleep and wake as required by FBHL. At the hearing, she stated that it is very likely FBHL will have these better nights more frequently[22].
[22] Transcript of Proceedings, page 24, lines 19-25.
When asked what percentage of nights this arrangement would be possible, M stated:[23]
“…I can’t really say – I can’t give you a percentage. But she definitely has got nights where it’s not active.”
[23] Transcript of Proceedings, page 24, lines 22-25.
She further stated that overnight care for FBHL could often be active and that she could not roster a support worker for a sleepover shift if they may need to care for FBHL in the capacity of an active shift.
She considered that she has had support workers be prepared for an active overnight and then change the shift to a sleepover if active support is not required. In these circumstances she submits that the carers room is needed, although she agreed that the carers room would also be needed if a support worker were rostered for a sleepover shift and then were required to provide active support.
M stated that there are no alternative options to the carers room because the other option would be adding two rooms to the house which would be more expensive. She did not consider that reconfiguring the current arrangement of bedrooms is a reasonable alternative taking into account that FBHL’s bedroom has a ceiling hoist installed and is in close proximity to the bathroom and her own bedroom.
The storage room
M submits that the storage room is the most appropriate way to store FBHL’s disability-related items in a way that keeps them safe and easy to access and lists over 20 pieces of specialist equipment items and 15 consumable items for FBHL to be properly supported with transfers, mobility, therapy, breathing and feeding.
She submits that the equipment pieces alone placed side-by-side measure over 27 meters in length.[24] Further, that as FBHL continues to grow and gain weight she will continue to require more consumables, equipment and assistive technology which will need to be stored.[25]
[24] Joint Court Book, Tab 23.
[25] Transcript of Proceedings, page 32; Joint Court Book, Tab 23.
The equipment is currently stored under the porch and in the carport, where it overflows onto the patio. This arrangement, she said, exposes the equipment to the elements and risks damage from wind, moisture and vermin. M stated that it would make their lives much easier not to have to clean equipment that is stored outside and worry about snakes and spiders.
She also keeps a fridge in the carport to be able to prepare meals for FBHL in advance according to her dietary requirements. M states she will prepare food about every ten to 14 days in advance and freeze to use as required.
Other items are stored in various rooms and places around the house. M stated that she intends to use the storage room to keep consumables that she purchases in a two-to-three-month supply at a time. This way, she said, only items that are frequently used will need to remain stored in the house.
M confirmed that most consumables for FBHL are purchased in bulk and delivered, and that this is cheaper and easier for her to organise and ensures that items are available to her and support workers.
In regard to the oxygen tanks that she keeps for FBHL, M records that she keeps five large and eight small tanks that need to be stored properly.[26] She estimates that a large tank will last FBHL for around five days and a smaller tank for around two to three days.[27]
[26] Joint Court Book, Tab 21(a).
[27] Transcript of Proceedings, page 41.
M submits that oxygen cylinders must be stored in a cool, dry and well-ventilated area, away from heat and out of direct sunlight and that they pose safety risks to the family being stored in the carport as they currently are.
In the context of whether she had considered trialling the use of an oxygen concentrator, a portable machine which concentrates the oxygen from air a room in lieu of using tanks, M stated that that is up to the respiratory team and that “I don’t know but they haven’t wanted to do that.”
In the context of alternatives to the storage room, M submits that the Agency’s proposed alternative of constructing storage shelves around the carport would not achieve the same outcomes because large equipment cannot be placed on shelves and the items would still be exposed to the outdoors.
Further, that the playroom should not be used as a storage area because having both the playroom and loungeroom as separate living areas means that the rest of the family can watch their own TV programs in a separate space from FBHL while she is watching children’s programs.
In considering the other benefits to her family, M submits that her other two children may want to bring more friends home as they enter their teenage years and that it is not appropriate to have FBHL’s items around the home when they do. She further considers that the storage room will enable her family to “better function within their household without the sensation of the place being transformed into a nursing home”.
Evidence of Ms Kylie Gallen
Ms Kylie Gallen, Registered Nurse, assessed FBHL at her home on two occasions and subsequently provided advice to M in her capacity as an independent contractor. She has provided reports, a delegation of care plan and gave evidence at the hearing.
The carers room
Ms Gallen stated that, in in her opinion, FBHL needs one-on-one care during the evenings because that is when she had a high risk of her oxygen levels depleting and she also needs to be repositioned several times to prevent choking.
In considering whether it would be safe for a support worker to be in a separate room or sleep when FBHL does not require assistance during the night, she stated that it would depend on the alarms and equipment working properly. She stated that it wouldn’t work against FBHL not to have the support worker in the room 100 percent of the time if FBHL’s alarms were working properly and the support worker did not go into a deep sleep.
When asked how close support workers need to be to FBHL during the night shift, Ms Gallen advised that it was hard to say although this could be estimated to be a maximum of around five meters, although it should be no further than M’s bedroom because if a support worker were any further away when FBHL needed help that M would end up providing that support.
She nonetheless maintained that due to FBHL’s history she would personally recommend that FBHL receives one-on-one nursing at night, acknowledging that this would also be a matter of FBHL’s comfort to have another person in the room with her.
The storage room
In regard to the items stored in the carport, Ms Gallen considers that there is a real risk to FBHL’s safety if she is exposed the contamination that rodents can leave on her equipment and to potential bacterial growth that can grow in moisture and humidity in her consumables.
Ms Gallen stated that is not appropriate to store unsecured oxygen tanks outside and referred to the safety risks of tanks being exposed to indirect and reflected sunlight which can potentially cause structural damage, increased pressure or rupture. She considers the hot and dry weather that FBHL’s location can experience in summer and that the stable temperature range recommended for storing oxygen tanks which can be difficult to achieve in a carport.
Damage to the cylinders, she said, can compromise their functioning and present risks of harm and injury to FBHL upon being administered to her. She refers to the recommendation of the World Health Organisation that oxygen tanks should be stored in a well-ventilated, clean room and not exposed to extremes of temperature and humidity.
On this basis, she suggested that oxygen tanks for FBHL can be stored in a caged area with a level concrete floor and at least 40% of its walled areas fully open. If this cage is outside, she said, it must be free-standing. She considered that the carport is currently well-ventilated in this regard.
Ms Gallen stated that she would probably choose that fewer tanks are stored at the house that still maintain a safe supply of oxygen for FBHL although adding that she understood the difficulties associated with relying on the delivery of tanks to the nearest town, which can be cut off during floods, to be a reason for storing a slightly excessive amount of oxygen.
Ms Gallen agreed that oxygen concentrators are normally used for people who require oxygen for more than eight hours per day, as FBHL does, and further considers the benefits of the higher oxygen concentration for FBHL who needs “that therapeutic dose”. She stated that an oxygen concentrator for FBHL should be investigated. [28]
[28] Transcript of Proceedings, page 66.
Ms Gallen considered that the current storage arrangement for FBHL’s consumables is not adequate and refers to how items are stored in multiple areas of the house including the pantry, dining room and cupboards which can lead to contamination and poor accessibility.
Ms Gallen described this arrangement as “haphazard” and stated that it is “crucial” to establish a proper storage system. She considered that how items are stored can be reworked and makes the recommendations as follows:[29]
·Allocate a dedicated storage area in the house, such as a specific room, for all of FBHL’s consumables;
·Clearly separate medical supplies from food items or other household materials to minimize the risk of contamination and use appropriate storage containers, labels, or shelves to keep the items properly;
·Establish a system for inventory management, including tracking expiry dates, restocking procedures, and regular audits to ensure an adequate supply of items and reduce the risk of using expired/ineffective consumables;
·Store items in a manner that is secure, stable, and easily reachable to ensure their safety and accessibility;
·Maintain a clean and hygienic storage environment by regularly cleaning the storage area and ensuring proper ventilation.
[29] Joint Court Book, Tab 23(e).
Evidence of Ms Melita Porter
Ms Melissa Porter has been engaged as a support worker for about five months to provide care for FBHL in a 14-hour shift between 7am and 9pm, four days per week. She provided a report of her experience in this role and gave evidence at the hearing.[30]
[30] Joint Court Book, Tab 23(f).
Ms Porter does not currently provide overnight care because she is not prepared to sleep on a lounge or on the floor, and there is no other appropriate space within a safe distance to FBHL’s bedroom. She considered that FBHL’s nights are unpredictable, and that overnight support workers should be prepared to be awake all night if needed.
In her report she confirmed that FBHL’s home is “overflowing” with a massive amount of consumables, medical supplies and disability equipment. Her concern, she stated, is that she often cannot find what she needs and spends time looking for items while FBHL is unattended.
She raised safety concerns in relation to the boxes of consumables being stacked around the house, recalling that she had nearly injured herself recently when she opened a cupboard and had boxes fall onto her. Further, that stored items are often in her way which makes it difficult and unsafe to manoeuvre around the home, particularly when moving FBHL.
Ms Porter confirmed that these items are delivered directly to the house and then they are stored wherever they will fit. In regard to the equipment in the carport she stated that these are cleaned for about 15-30 minutes on a daily basis.
Evidence of Mr Chris Birtles
Mr Chris Birtles, Occupational Therapist, has provided services to FBHL for approximately six years. He provided reports in respect of functional assessments and a complex home modification assessment for the carers room performed by his occupational therapy service and gave evidence at the hearing.

Mr Birtles described FBHL as a very complex individual with very high support needs and considered that it would be nice if M could get some respite from the care that she provides. In his opinion, the goal of the carers room is to have a support worker staying there 24/7 so that M is not doing the amount of work that she is now.
FBHL, he said, is not someone who sleeps during the night and that she needs to have her support worker as close as possible. Mr Birtles stated that it is difficult to predict how many hours of active care FBHL would need per night although he did consider that her support needs will continue to increase over time.[31]
[31] Transcript of Proceedings, page 84.
In his functional assessment report, Mr Birtles stated that FBHL specific needs require at least five nights per week of active overnight support including a minimum of four hours of monitoring and active assistance between 8:30pm and 7am.
In the complex home modification assessment Mr Birtles stated, based on information provided to him by M, that FBHL’s “episodes” at night last between one to four hours and longer when FBHL is unwell. Further, that FBHL requires the carers room so her support workers can monitor her “at least 8 times nightly and provide assistance when required.”[32]
[32] Joint Court Book, Tab 11(f).
Mr Birtles made recommendations in his report for large pieces of assistive technology equipment which he considers comprise the bulk of FBHL’s items to be stored. In his oral evidence. Mr Birtles confirmed that he did not personally assess FBHL for the purposes of producing the relevant report.
He also recommended that a storage area is built within the carport for the weatherproof storage of FBHL’s items. He noted that there are further benefits of support workers being able to access items around the house without assistance from M to help them find items or have to reach them herself.
Evidence of Ms Amy Mitchell
Ms Amy Mitchell, General Manager of a Disability Support Provider, provided a letter dated 10 March 2023 stating as follows:[33]
[33] Joint Court Book, Tab 21(c).
To Whom it may concern,
Requirements for having Support Workers over night for sleep over shifts/ Wake overs -
• A private room
• A bed to sleep in
• An area of their own to have a break.
• A place to put their belongings.
• An area to get changed.
• A place to have a shower if needed.
The requirements are needed to ensure that the Participants have their own space to have privacy as well as the Support Worker.
The Support Worker need to be in close vicinity of the Participants to ensure that the
Participant is heard if they call out or have a fall or other concerns that the member may experience during the night.
Evidence of Ms Katrina Young
Ms Katrina Young, Director of a Disability Support Provider, sent the following email to M in April 2023:[34]
To Whom This May Concern
When my staff are on either awake night shifts or sleepover shifts, they require their own room/space. It's a requirement that they have somewhere where they are able to have a rest, have a meal, do some paperwork for their job, to have a change of clothes etc.
I personally myself (Strive) have paid for a motel room for my staff member so they are close by to my participant.
This is something we obviously can't provide for FBHL, but my workers do need to have their own space where they're also not invading the rest of the family's space. The worker needs to have their own room so they can best look after FBHL of an evening/night especially.
[34] Joint Court Book, Tab 21(b).
Evidence of Ms Natasha Case
In April 2023, Ms Natasha Case, Independent Expert, to assess the home modifications as part of the Agency’s Independent Expert Review (IER) program. She reviewed written materials from both parties and held a telephone conference with FBHL’s representatives. Ms Case produced a subsequent report with her recommendations.[35]
[35] Joint Court Book, Tab 22(a).
The IER is a voluntary process that both parties agreed to for the purpose of being provided a fair and impartial consideration of whether the home modifications are reasonable and necessary supports. Recommendations made by an Independent Expert are not binding on any party.
The carers room
Ms Case considered that, in her view, the carers room is reasonable and necessary within the meaning of section 34(1) of the NDIS Act.
In her report, she stated that FBHL’s representatives made submissions to her in regard to the carers room as follows:
·FBHL lives in a remote rural area which makes it difficult for M to engage and train support workers;
·The Agency assumed that support workers on a “sleepover” support workers are required to be awake during an entire shift. M reported that a sleepover shift will “convert” to active supports once a support worker provides 3-4 hours of active care during a shift and that even in an active shift the support worker is not required to remain awake and attentive at all times;
·The living areas are not a suitable alternative accommodation for support workers and they have refused to provide their services in the absence of a private room. Further, the family’s private and family lives are impacted by the presence of support workers, particularly in the living areas; and
·FBHL will require support workers for the rest of her life and regard should be had to the long-term considerations of the nightly presence of carers on the family and the higher cost of care delivered as active care.
Ms Case concluded that the carers room met each of the reasonable and necessary criteria at section 34(1)(a)-(f) of the NDIS Act. In making her findings, she considered that four “undisputed facts” appeared to her to be of the highest significance in reaching these conclusions:
·FBHL’s goals relate to her home environment and family relationships and achieving the goals depends on access to overnight carers;
·FBHL’s family wants to care for her at home “forever” and family cohesion is foundational to this;
·“Sleepover carers” are funded by the Agency to provide respite for M, protecting her from burnout and preserving family relationships, however the nightly presence of carers seems to create family tension and resentment; and
·Overnight care may not be obtainable without “appropriate accommodation” because the family property is remote (it is 30 minutes away from a large town).
Ms Case further noted that the letters provided by Ms Mitchell and Ms Young made it clear to her that a separate, private, space is a requirement and that the failure to provide as such will result in a failure to access overnight support.
She considered that in her view the cost difference between an “active sleepover” and “regular sleepover” demonstrates why the proposed carer room is justified as value for money.
The difference is so great, she said, that the reduction of the cost of “active” sleepovers would exceed the cost of the carer’s room within a potentially short time although this would depend on whether support workers would agree to attend. On this basis she considers the carer’s room satisfies the “value for money” criterion.
Further, that:
“I also consider and that the provision of accommodation for overnight care is most appropriately funded by the Agency in that it is not otherwise the responsibility of other agencies nor within what the family would reasonably provide for a child. As a question of discretion, in the absence of comparative costings of alternative approaches to the Participant’s care, it appears to me that without the Carer’s Room, the Participant would not be able to access the supports that have been approved as reasonable and necessary for her”.
The storage room
Ms Case did not accept that the storage room is reasonable and necessary within the meaning of section 34(1) of the NDIS Act.
In particular, she considered that the reasons given by FBHL that how items are currently stored within the house is a safety risk to family and support workers, and that the carport storage affect the longevity of items, as speculative.
She stated that there is no evidence to support the claims of a trip risk and noted the absence of some means of a risk assessment being made. Further, that there only appears to be minor damage to some items stored in the carport which is repairable.
Ms Case also considered that not all of the items that M listed in her submissions are required to be or would be kept in the storage room. She did accept that the current storage arrangement is unsuitable with regard to hygiene and the safe proximity of equipment to FBHL.
CONSIDERATION
To be considered as “reasonable and necessary” a support must meet all of the mandatory criteria set forth under section 34(1) of the NDIS Act.
These criteria are cumulative and may be addressed in any order.
The carers room
Section 34(1)(e): Does the funding of the carers room take account what is reasonable to expect FBHL’s family and carers to provide for her?
The Tribunal is satisfied that the funding of the carers room goes beyond what support is reasonable to expect her family and carers to provide.[36]
[36] Rule 3.4(a)(ii) NDIS Rules; McGarrigle, at [92].
The Tribunal’s considerations are as follows:
Active overnight support
The Tribunal notes FBHL’s high support needs and the evidence of M that FBHL’s care needs at night are “impossible to predict”.
The Tribunal accepts the submissions of the Agency that the IER recommendations were made on the erroneous assumption that FBHL receives “sleepover support” which can “convert” to an active shift.
The Tribunal is satisfied that FBHL requires around the clock, intensive care[37] and that this care includes funding for a support worker who is awake and attentive throughout the night and for the duration of the overnight shift.
[37] Joint Court Book, Tab 21(a).
The Tribunal is therefore satisfied that overnight support workers need to be awake and attentive for the duration of their shift and that the Agency is not to be expected to provide funding for a sleeping area to be used during this time.
The storage room
Section 34(1)(c): Does the storage room represent value for money in that the cost is reasonable relative to both the benefits achieved and the cost of alternative support?
On the current evidence the Tribunal cannot be positively satisfied that the storage room represents value for money on the basis of what the Tribunal considers will be the likely benefit of the storage room and also the costs of alternatives. The considerations are as follows.
FBHL maintains that a shed as proposed by the Agency does not offer an adequate solution. She specifically refers to the storage room as being required in particular for FBHL’s oxygen tanks.[38]
[38] Joint Court Book, Tab 21(a).
Ms Gallen’s evidence however is that the carport where the oxygen tanks are currently kept offers sufficient ventilation for the oxygen tanks. She refers to the best practice of oxygen tanks being stored within a cage.[39]
[39] Joint Court Book, Tab 23(e).
Ms Gallen further recommends the investigation of an oxygen concentrator as an alternative to oxygen tanks. The use of an oxygen concentrator would avoid the issue of the storage of oxygen tanks. Unfortunately no investigation of an oxygen concentrator has been undertaken in order to assist the Tribunal with its decision.
Mr Birtles stated in his assessment that FBHL’s disability-related items currently overflow from the carport onto the patio and are overflowing from cupboards within the home.[40] In respect of this statement the Tribunal has had regard to the evidence of Ms Gallen. Ms Gallen stated that it is crucial to establish a proper storage system and considered that this can be achieved by reasonably reorganising the house to have a dedicated storage space for FBHL’s consumables.
[40] Joint Court Book, Tab 11(f).
The evidence of Ms Case is that it would not be appropriate to store many of items proposed by FBHL in the storage room in any event. Further that it is speculative to contend that the storage of equipment and consumables within the house is a safety risk and compromises the longevity of equipment.
The Tribunal relevantly observes that the area size of storage room as proposed is in fact smaller than the area of the existing carport area.
The Agency has proposed the alternatives of a combined carer/storage space and a storage shed. These options were only “proposals”, and they were not investigated by the Agency. Such investigations would have been of assistance to the Tribunal.
CONCLUSION
In respect of the carers room section 34(1)(e) of the NDIS Act is not satisfied. Having made this determination it is not necessary for the Tribunal to deal with the remaining criteria in section 34(1) of the NDIS Act in respect of the carers room.
In respect of the storage room section 34(1)(c) of the NDIS Act is not satisfied. Likewise, having made this determination it is not necessary for the Tribunal to deal with the remaining criteria in section 34(1) of the NDIS Act in respect of the storage room.
The Tribunal therefore concludes that the home modifications as proposed and sought by FBHL are not reasonable and necessary supports.
FURTHER COMMENTARY
The Tribunal has considered FBHL’s rural location, her high support needs and the fact that she is approaching adulthood.
The Tribunal refers to the importance of having regard to FBHL’s privacy and dignity.[41] The Tribunal also refers to the importance of recognising FBHL’s relationship with her family and her carers. [42]
[41] Section 4(1) NDIS Act.
[42] Section 4(12A) NDIS Act
The Tribunal is also mindful of the difficulties in securing high support needs in a rural location with a level of certainty. The certainty of these supports is fundamental to the health and well-being of FBHL.
The Tribunal considers that the current arrangement for FBHL in terms of the configuration of her bedroom and the storage of equipment and consumables is unsatisfactory. It is for this reason that this matter is remitted to Agency for investigation and reconsideration of a satisfactory arrangement.
DECISION
Pursuant to section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal decides that the decision under review made on 25 March 2022 pursuant to section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) is to be set aside and remitted back to the respondent to reconsider within 28 (twenty-eight) days of this decision.
I certify that the preceding 131 (one hundred and thirty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM.
…………………[SGD]………………..
Associate
27 February 2024

[2024] AATA 304

27 February 2024

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