Fernando and National Disability Insurance Agency
[2024] AATA 3273
•13 September 2024
Fernando and National Disability Insurance Agency [2024] AATA 3273 (13 September 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/1858
Re:Shalini Fernando
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member George
Date:13 September 2024
Place:Adelaide
The Reviewable Decision is affirmed.
....................[SGND]..............................
Senior Member George
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – applicant lives with Rubinstein Taybi Syndrome – whether certain supports are reasonable and necessary – value for money - decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
CASES
Milburn and National Disability Insurance Agency [2018] AATA 4928
SECONDARY MATERIALS
National Disability Insurance Agency, ‘Social and Recreation Supports Operational Guideline’, (Operational Guideline, National Disability Insurance Scheme)
REASONS FOR DECISION
Senior Member George
13 September 2024
Ms Shalini Fernando is a 21-year-old woman who lives with her parents in Adelaide. She lives with complex and multiple disabilities arising from Rubinstein-Taybi Syndrome. Ms Fernando has been a recipient of support through the National Disability Insurance Scheme (NDIS) since July 2017.
Ms Fernando’s support plan was approved on 28 October 2021. An internal review was sought, and the Respondent varied the original decision on 4 February 2022. This internal review is the Reviewable Decision.
This matter substantially resolved by the conclusion of the first day of the hearing. The remaining supports in dispute are:
(a)funding for 156 hours for Frame Running coaching; and
(b)$1,200 per year for Tutti Arts program membership.
The Reviewable Decision is affirmed for the following reasons.
LEGISLATIVE FRAMEWORK
The reasonableness and necessity of supports is codified in s 34 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act). That section reads:
(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 National Disability 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).
[Emphasis added]
These requirements are stringent and cumulative.
For the Tribunal to find in favour of the Applicant it must be positively satisfied that an identified support is reasonable and necessary, for the participant, as based on probative evidence; doing so in accordance with the Act, the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘the Rules’), and the NDIS operational guidelines.
Relevantly, in this matter, Rule 3.1 relates to the assessment of “Value for money” as follows:
3.1In 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).
[Emphasis added]
Also relevant, in this matter, Rule 5.1 provides the general criteria for supports as follows:
5.1A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
[Emphasis added]
The relevant Social and Recreation Supports Operational Guideline notes that “We don’t fund registration fees or standard equipment for social and recreation activities. You will need to pay these costs yourself”.
CONSIDERATION
Frame Running coaching
Ms Fernando competes in race running events, using a running frames and orthoses. Running is beneficial for Ms Fernando. It is enjoyable, improves her strength and cardiovascular fitness, and allows her to control her weight. The question for the Tribunal is whether it is reasonable and necessary for the Respondent to fund 156 hours for Frame Running coaching.
The costs of the Frame Running coaching have not been fulsomely addressed in the evidence before the Tribunal. The best evidence is that sessions cost $50. There are two sessions a week, on Mondays and Wednesdays, in a group setting. There may be clashes with Ms Fernando’s other activities.
It is not possible in these circumstances for the Tribunal to be satisfied that the Frame Running coaching represents value for money having regard to comparable supports as required by Rule 3.1(a) or (e). Furthermore, the evidence is silent as to whether the provision of the Frame Running coaching is likely to reduce the cost of the funding supports for Ms Fernando in the long term under Rule 3.1(c).
Conclusion: Frame Running coaching
The Tribunal is not satisfied that 156 hours of Frame Running coaching represents value for money.
Tutti Arts program membership
It is not in contention that it is reasonable and necessary for Ms Fernando to participate in some programs at Tutti Arts. The issue is whether the Respondent should pay for the annual membership.
The purposes of the $1,200 per year Tutti Arts program membership are contained in a letter addressed to the Respondent and the Tribunal dated 14 February 2023. That letter outlines that:
Each participant at Tutti pays a membership fee to contribute toward the significant costs of offering extraordinary community, social and recreational artistic activities.
Participants at Tutti, unable to afford the membership fee as an out-of-pocket expense, may claim this support item (04_210_0125_6_1) under their NDIS budget.
The membership fee enables Tutti to build opportunities and networks in the arts industry to ensure that artists participating in our program develop their careers as artists, musicians or performers.
…
The membership fee contributes towards the costs involved in workshops and excursions. It covers the costs in providing high-level social and community opportunities such as art exhibition and performances. It covers the costs of maintaining a visual arts studio including the provision of all art materials, easels, canvases, cameras, digital software and computers.
Other documents before the Tribunal, such as invoices, corroborate the contents of this letter.
Ms Fernando has relied upon the findings in Milburn and National Disability Insurance Agency [2018] AATA 4928 in support of her submission that the Respondent should pay for the Tutti Arts program membership. The facts in Milburn involved a gym membership, which is of a different nature to an arts program.
The evidence before the Tribunal does not state that it is a necessary antecedent step for Ms Fernando to pay $1,200 per year for membership at Tutti Arts for Ms Fernando to access the programs that the Respondent considers to be reasonable and necessary. Were that the case, the Tribunal would have no hesitation in finding that the membership was therefore also reasonable and necessary. This is not an inference that can be drawn on the available evidence.
The substance of the letter of 14 February 2023 is that the membership fee contributes to covering the costs of the whole centre and its standard equipment. These are not costs related to Ms Fernando’s disability for the purposes of Rule 5.1(b). Indeed, having regard to the Guidelines, these are costs that Ms Fernando will need to pay herself.
Conclusion: Tutti Arts program membership
The Tribunal is not satisfied that the costs of $1,200 per year for the Tutti Arts program membership are related to Ms Fernando’s disability.
Accordingly, the decision under review must be affirmed.
DECISION
The Reviewable Decision is affirmed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for the decision herein of Senior Member George.
…………………..[sgnd]………………..…
Feng Jiang, Associate
Date of hearing: 30 and 31 July 2024 Advocates for the Applicant: Helen Fernando (mother)
Jacinta Coates,
Brain Injury SACounsel for the Respondent:
Instructed by:
Josephine Battiste,
Mitchell ChambersAlexandra Lean,
Mills Oakley LawyersANNEXURE A - EXHIBIT REGISTER
Exhibit No. Date Lodged Lodged By Document STATEMENT OF FACTS, ISSUES AND CONTENTIONS A1 8.03.24 Applicant Updated Statement of Facts, Issues and Contentions R1 3.05.2024 Respondent Statement of Facts, Issues and Contentions JOINT DOCUMENTS J1 29.07.2024 Respondent Joint Hearing Bundle APPLICANT’S DOCUMENTS A2 30.07.2024 Applicant Applicant’s Response to the Respondent’s Statement of Facts, Issues and Contentions A3 30.07.2024 Applicant List of Authorities A4 30.07.2024 Applicant Xtracare Crocodile trainer invoice 4.03.3034 A5 30.07.2024 Applicant Physiotherapist report of Susan Gibson 15.01.2024 RESPONDENT’S DOCUMENTS R2 3.05.2024 Respondent List of Authorities
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