FNFW and National Disability Insurance Agency

[2021] AATA 4681

FNFW and National Disability Insurance Agency [2021] AATA 4681 (17 December 2021)

Division: NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:           2020/4682

Re: FNFW

APPLICANT

AndNATIONAL DISABILITY INSURANCE AGENCY

RESPONDENT

DECISION

Tribunal:Senior Member Katter

Date:17 December 2021

Place:Brisbane

The decision under review is affirmed. 

...........................[SGD]......................................

Senior Member Katter

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – whether requested supports are reasonable and necessary pursuant to sub-section 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) – capital budget for home modifications – decision under review affirmed

Legislation

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

Cases

McGarrigle v National Disability Insurance Agency [2017] FCA 308

REASONS FOR DECISION 

Senior Member Katter

17 December 2021

1. The Applicant is eight years of age.[1]

   [1]           Applicant’s Statement of Issues, Facts and Contentions dated 14 April 2021, page 1.  

2. By correspondence, dated 6 May 2020, a National Disability Insurance Scheme (“NDIS”) plan was communicated to the Applicant’s parent.[2]  The ‘profile’ in that plan stated:  ‘I live with my mum … on a half acre property, and I have a close bond with my mum for all my support.   I also see my nannie and poppy every week with my mum.  We are looking to get a dog in [the] future, when our home has a fenced area’[3].  That plan[4] included total funded supports of $37,327.51[5], including ‘core supports’ (funding for assistive technology)[6] and ‘capacity building supports’ (the support of allied health professionals)[7].   

   [2]           Exhibit T1, T Documents, T9, page 65.  

   [3]           Ibid, page 69.  

   [4]           Ibid, pages 65-76.  

   [5]           Ibid, page 74.  

   [6]           Ibid, page 74.  

   [7]           Ibid, page 75.  

3. As to the plan dated 6 May 2020, there was a request for review form subsequently lodged with the Respondent.[8]  In that request for review form it stated as to 'what the request for review is about’:[9]

   [The Applicant] and her [parent] … are requesting a review of the decision regarding the allocation of funding in [the Applicant’s] current NDIS plan.  Firstly, the current plan has seen a significant reduction in funding in [the Applicant’s] Core Support domain, making it difficult for her to receive necessary access to core supports and/or respite services.  Secondly, the request for home modifications pertaining to property fencing was denied, thus increasing [the Applicant’s] risk of harm due to her disabilities.  For these reasons we would like to request a review of a reviewable decision.

   [8]           Exhibit T1, T Documents, T8, pages 57-64.

   [9]           Ibid, page 59.

4. The request for review form also stated:[10]

   Why do you want the decision reviewed? …

   Firstly, the reduction in … Core Support funding has resulted in … restricted accessibility to necessary core supports and respite services.  In addition, the reduction in Core funding has resulted in added expectations of [the parent], which, at times, negatively impact [the parent’s] ability to exercise self-care.  [The parent] believes the practical needs of [the Applicant] have not been considered within the current NDIS plan and wishes to offer additional supporting information within a “Functional Capacity Assessment” written by [the Applicant’s] Occupational Therapist …

   Secondly, the denial of the request for funding for property modifications, specifically property fencing, has resulted in increased concern for [the Applicant’s] safety.  Due to [the Applicant’s] disabilities, [the Applicant] has an impaired ability to follow safety-based instruction along with disinhibited cognitive processing, highlighting the ongoing and significant risk to [the Applicant’s] safety without the construction of a fence barrier to prevent [the Applicant] from absconding from the property, onto a busy road.  [The Applicant’s parent] believes the significant risk to [the Applicant’s] physical safety and wellbeing as a result of her intellectual disability have not been actively taken into account.  Supporting evidence provided during [the Applicant’s] NDIS plan meeting from her treating Paediatrician, … and Physiotherapist, … highlight in detail the direct risk to [the Applicant].  These reports outline [the Applicant’s] impaired ability to identify, process and prevent the risks associated with absconding from [the Applicant’s] property, playing on the busy road their property is located on, as well as, engaging with strangers if [the Applicant] were to do so.   Both above mentioned reports are attached, for your re-consideration.

   As such, this review is requested in the hope of ensuring that [the Applicant’s] needs are sufficiently supported, [the Applicant’s] safety protected and that the above funding requests be considered reasonable and necessary.

   How has it affected you? …

   [The parent] is very pleased about the funding allocated in [the Applicant’s] Capacity Building domain, however, with [the Applicant’s] schedule of regular therapies, school attendance and medical appointments, there has come additional support required of [the parent].  [The parent] enjoys spending time with [the Applicant] and acknowledges and that [the parent] is instrumental to [the Applicant’s] engagement with such activities.  However, due to insufficient Core Support funding [the parent] often has to focus solely on supporting and co-facilitating [the Applicant’s] well-being, often disregarding [the parent’s] own health and wellbeing as a result.   Additionally, the denial of funding for home modification fencing results in [the parent’s] constant supervision and hyper vigilance regarding concerns of [the Applicant’s] ability to escape [the] home and abscond from the property bounds.   As [the Applicant] matures, [the Applicant] grows in physical size, strength and agility and these factors coupled with an intellectual disability and disinhibited processing, result in compounding risk factors within an unfenced yard.  Consequently, the lack of fencing around the property along with [the Applicant’s] increasing mobility and speed mean that [the Applicant] cannot use the backyard to engage in sensory discovery, practice motor skills, participate in physical exercise or play in the backyard like many of [the Applicant’s] peers of the same age.

   [10]          Ibid, page 60.

5. The ‘outcome sought’ in the review form was:[11]   

   [A]n appropriate increase in [the Applicant’s] Core Support budget so that [the Applicant] is able to access sufficient supports and build a skilled support team, as well as, maintain the wellbeing of [the parent], reducing the risk of carer’s fatigue.   

   [The Applicant is] also hopeful that the review will actively acknowledge the ongoing risk to [the Applicant’s] safety without the construction of a fence around their property, resulting in the approval of funding for such home modifications.

   [11]          Ibid.

6. On 2 July 2020 there was a telephone call from a representative of the Respondent to the Applicant’s parent, with the Respondent’s notes as to that call stating that:[12]

   …

   ·Increased funding in the Core Support Budget to access a support worker for six hours a week due to the risk of Carer’s Fatigue.

   ·Review for request of HM for House Fence due to safety concerns

   [The Applicant’s parent] reported [as being] sole carer of [the Applicant] and [the Applicant] relies on me 100% for … everyday needs including Feeding … , changing nappies, changing … clothes etc.  This funding would also allow [the parent] to go down to the shops without having to take [the Applicant] … and having to get [the Applicant] in and out of the car.  [The Applicant] will pull things off the shelves so taking [the Applicant] is not a good option.  Having a support worker for few hours would also allow [the parent] to do basic house work and washing, without feeling like [the parent] is neglecting [the Applicant].  [The parent] believes a support worker can work with [the Applicant] to help ... build [the Applicant’s] communication skills, fine motor skills, social skills or implementing any strategies recommended by the therapists.  [The parent] also reported [suffering] from back pain caused from having to lift [the Applicant] in and out of the car bed tub etc.

   Advised [the parent] of the decision that the Funding to cover the support worker for six hours per week has been approved based on our conversation but funding for HM for House Fence is declined as it is not considered R&N under section 34(f) of the Act.  The fence around a home is an everyday item that all homes require and it is, therefore, the financial responsibility of the home owner to pay for the installation and maintenance.  The House Fence is not reasonably funded by the NDIS.  Also advised [the parent] of the appeal rights … .  [The parent] … requested plan via email.

   [12]          Exhibit T1, T Documents, T7, page 56.

7. By letter on 3 July 2020 the Applicant’s parent was provided with correspondence as to the outcome of the internal review request, which stated:[13] 

   [13]          Exhibit T1, T Documents, T2, page 39.  

   … I have now reviewed your request under section 100 of the National Disability Insurance Scheme Act 2013 … . The National Disability Insurance Agency … has now decided to fund some but not all of the supports you requested.

   The outcome you sought from the internal review was:

   1.        Funding in the Core Support Budget to access a support worker for    six hours a week.

   2.        Funding in the Capital Budget for Home Modifications – House Fence                    due to safety concerns.

   During our conversation on 2 July 2020, we confirmed that your internal   review request was for the above stated supports.

   I have considered the available information and decided to:

   1.        Approve funding in the Core Support Budget to access a support    for six hours a week.

   2.        Decline funding in the Capital Budget for Home Modifications –    House Fence. …

8. The reasons for decision of the internal review request, dated 3 July 2020, stated:[14] 

   [14]          Ibid, page 42.

   … For your approved requested supports, I am now satisfied they are reasonable and necessary to be funded under section 34 of the National Disability Insurance Scheme Act 2013 … and satisfy part 5 of the NDIS (Supports for Participants) Rules 2013.

   The approved supports include:

   1.      Funding in the Core Support Budget to access a support worker for six hours a week.

   I have assessed your other support requests and have determined that they do not satisfy the relevant legislation.

   I have explained my decision for the declined supports below.

   Request 1 – Funding in the Capital Budget for Home Modifications – House Fence due to safety concerns.

   Reasonable and necessary criteria

   I have assessed this support against each of the criteria in section 34 of the NDIS Act, and I am not satisfied that your request is reasonable and necessary. 

   The reason I have not funded your request is because I am not satisfied the following criteria are met.  Any criteria which are not listed below are considered met. 

   Responsibility of families, carers and the community (Section 34(1)(e))

   In order to meet this criteria, a support must take into account of what is reasonable to expect families, carers, informal networks and the community to provide. 

   Funding for the fence around the house is considered an everyday living item that all homes require and it is, therefore, the financial responsibility of the home owner to pay for the installation and maintenance.  Additionally, Funding for the therapeutic supports have been included in the NDIS plan to manage [the Applicant’s] high risk behaviours. …

9. By correspondence, dated 3 July 2020, a further National Disability Insurance Scheme plan was communicated to the Applicant’s parent.[15]  The ‘profile’ in that plan stated the same words as in the plan of 6 May 2020:  ‘I live with my mum … on a half acre property, and I have a close bond with my mum for all my support.   I also see my nannie and poppy every week with my mum.  We are looking to get a dog in [the] future, when our home has a fenced area’.[16]  That plan[17] included total funded supports of $54,594.91,[18] including ‘core supports’ (funding for assistive technology)[19] and ‘capacity building supports’ (the support of allied health professionals)[20].   

   [15]          Exhibit T1, T Documents, T10, page 77.  

   [16]          Ibid, page 79.  

   [17]          Ibid, pages 78-85.  

   [18]          Ibid, page 84.  

   [19]          Ibid.

   [20]          Ibid, page 85.

10. On 23 July 2020 an application for review of decision was filed in the Tribunal.[21]  As to the date of receipt of the decision to be reviewed, the form stated 3 July 2020.[22]  As to ‘why that decision is wrong’ the Applicant stated in the form:[23]    

    [T]he decision letter [stating] that [the parent] was only seeking 6 hours a week of core support to access a support worker is INCORRECT.  … [The parent] … asked for extra hours during school holidays plus additional hours for 1 Saturday per month for 4 to 6 hours.  [The parent] was offered 1 hour of carer support in the morning which [was] declined … .  [B]ecause [the parent has] been … doing everything … for so long [the parent finds] it hard to put into words how much help [the parent] actually need[s].  … [The parent has] since obtained further … evidence … .  [The parent is] still waiting for a letter from [the Applicant’s] neurologist, … and an occupational therapy home modifications assessment … .  [The parent is] also asking for additional fund[ing] for consumables as the amount [the Applicant] has be[en] allocated does not cover the basics … .  [The parent requests] a review [of] the decision of the fence under home modifications [now having] further evidence [so requesting the Respondent] reconsider [the] decision.

    [21]          Exhibit T1, T Documents, T1, page 1.  

    [22]          Ibid, page 4.  

    [23]          Ibid, page 5.  

    ISSUE

11. At the hearing on 25 August 2021, the Applicant stated that the application has been significantly resolved[24] and ‘the only matter … remaining in substantial dispute is the application for the reasonable and necessary home modification, being the fence’.[25]  The Applicant further stated:[26]

    The Applicant considers the issue before the Tribunal is whether the request for an increase in capital supports to include “one off” funding for home modifications, for the construction of a fence around the home at a cost of between $12,144.00 to $31,797.50 is reasonable and necessary, having regard to Section 34 of the National Disability Insurance Scheme Act 2013 and … the National Disability Insurance Scheme (Supports for Participants) Rules 2013. …

    [24]          Transcript, 25 August 2021, p-2, lines 22-23.  

    [25]          Transcript, 25 August 2021, p-2, lines 26-28.  

    [26]          Applicant’s Statement of Issues, Facts and Contentions dated 14 April 2021, page 1, paragraph 2.

    SECTION 34

12. Section 34 of the National Disability Insurance Scheme Act 2003 (Cth) (the “Act”) states:

    Reasonable and necessary supports

    1For 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.

    2The 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).

13. Section 33(5) of the Act states:

    (5)       In deciding whether or not to approve a statement of participant            supports under subsection (2), the CEO 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; and

    (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.

14. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the “Rules”) relevantly state:

    These Rules are made for the purposes of sections 33 and 34 of the Act.

    These Rules are about assessment and determination of the reasonable and       necessary supports that will be funded for participants under the NDIS.

    These rules commence on 1 July 2013.

    1.2       The Act sets out a number of objects for the NDIS. The objects that are particularly relevant to these Rules are the following:

    (a)        supporting the independence and social and economic participation   of people with disability;

    (b)        providing reasonable and necessary supports, including early    intervention supports, for participants in the NDIS launch;

    (c)        enabling people with disability to exercise choice and control in    pursuit of their goals and the planning and delivery of their supports.

    1.3       In giving effect to these objects, regard is to be had to the need to ensure   the financial sustainability of the NDIS.

    1.4 The Act also sets out a number of principles for the NDIS. The principles that are particularly relevant to these Rules are the following:

    (a)        people with disability have the same right as other members of    Australian society to realise their potential for physical, social,   emotional and intellectual development;

    (b)        people with disability should be supported to participate in and    contribute to social and economic life to the extent of their ability;

    (c)        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;

    (d)        people with disability should be supported to receive reasonable   and necessary supports, including early intervention supports;

    (e)     reasonable and necessary supports for people with disability    should:

    (i)         support people with disability to pursue their goals and   maximise their independence;

    (ii)        support people with disability to live independently and to be                 included in the community as fully participating citizens; and

    (iii)       develop and support the capacity of people with disability to                  undertake activities that enable them to participate in the   mainstream community and in employment;

    (f)         the role of families, carers and other significant persons in the lives   of people with disability is to be acknowledged and respected;

    (g)        people with disability should be supported to receive supports    outside the NDIS, and be assisted to coordinate these supports with   the supports provided under the NDIS. …

    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 that 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 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 …

1. In McGarrigle v National Disability Insurance Agency [2017] FCA 308; (2017) 252 FCR 121 (“McGarrigle”) at [94]-[95] per Mortimer J, it was relevantly stated:

   94Once a decision is made that the support, as identified and described, is reasonable and necessary, then subject to the other requirements in s 33(5) and s 34, the scheme requires and contemplates that support “will” be funded.   In my opinion, that can only mean wholly or fully funded.

   95The subject matter of the CEO’s approval in s 33(2)(b) is the reasonable and necessary supports that “will” be funded.   The language is imperative, and in my opinion this is consistent with the applicant’s contention that the relevant gateway established by the legislative scheme is whether the support is “reasonable and necessary”, and once through that gateway, the scheme intends the support will be fully funded.  There are no references in these provisions to “contributions” from the participant, the participants’ family or carers.   I have explained, in my opinion, how s 34(1)(e) is intended to operate:  that is, it is intended to operate at the stage of the CEO (or the delegate or Tribunal) forming a state of satisfaction about what are “reasonable and necessary supports”.   It is not intended to ask the decision-maker to assess whether any of the persons in para (e) are capable, or willing, to make a financial contribution towards the proposed support.   That is made especially clear by the inclusion in the list in para (e) of the “the community”.   Parliament did not intend the decision-maker to ask, in forming a state of satisfaction, whether the community could or should make a financial contribution to the funding of a support found by the decision-maker to be reasonable and necessary in order for the participant to work towards the goals, objectives and aspirations set out in the participant’s plan.

2. That decision was an appeal as to an NDIS plan, where the Agency provided funding for transport, which represented approximately 75 per cent of the annual cost required to pay for taxis and transport.[27]  The Court further stated:[28] 

   Section 34(1)(e) does not authorise the CEO (or the delegate or Tribunal) to be    satisfied that a support which has otherwise been concluded to be “reasonable and          necessary” should be only partially funded because others can make up the funding    difference.  Rather, the function of s 34(1)(e), as with the remainder of s 34(1) is to         assist the CEO (or the delegate or Tribunal) in forming a state of satisfaction about   whether a support is reasonable and necessary.  Once that satisfaction is formed,            one way or the other, on the basis of probative evidence and material, the support      must be fully funded.  That is what the words “will be funded” in s 33(2)(b) should be taken to require.

   [27]          Ibid at [1] per Mortimer J.   

   [28]          Ibid at [100] per Mortimer J.

   CONSIDERATION

3. The residential home where the Applicant resides is on the corner of two streets.[29]  On the side closest to the front of the property there is a street.[30]  On one side of the property there is a relatively new street that has been added in the last few years,[31] with that street providing the sole access to a sub-division of more than 60 lots.[32]  There is no fence between the house and either street frontage.[33]   

   [29]          Exhibit 2, Hearing Bundle, Document A23, page 71.

   [30]          Exhibit 2, Hearing Bundle, Document A22, page 70.

   [31]          Ibid.

   [32]          Exhibit 2, Hearing Bundle, Document A23, page 71.

   [33]          Exhibit 2, Hearing Bundle, Document A22, page 70.

4. There is an existing fence at the rear of the property, with a neighbouring house on the other side of that rear fence line.[34]  The neighbouring house on the rear boundary had been built about two years ago, with a wooden paling fence constructed on that boundary at about that time.[35]   

   [34]          Ibid.

   [35]          Transcript, 25 August 2021, p-31, lines 45-46.

5. On the fourth and final side of the property there is another neighbouring house.[36]  Along that neighbouring boundary, there is a barbed wire fence,[37] with a drain that ‘runs along that side of the fence’.[38]   

   [36]          Exhibit 2, Hearing Bundle, Document A22, page 70.

   [37]          Transcript, 25 August 2021, p-32, lines 1-2.

   [38]          Transcript, 1 October 2021, p-106, lines 45-46.

6. The Applicant’s documentation seeks only partial funding of a 4-sided boundary fence.[39]   The Applicant’s quotations as to the cost of the fence are as to only part of the fence at the relevant property.  The Applicant’s evidence is that the three sides of the property, other than the rear fence, are 18.2 metres x 74.5 metres x 80.5 metres.[40]  The Applicant’s two fence quotations, as in evidence, refer to a metre distance of 101.2 metres around the perimeter, therefore only fencing (about) two of the four sides of the property.[41]  The Applicant at the hearing submitted that the entire fence should be funded, without providing any detail or documentation as to the cost of a 4-sided fence at the property.[42] 

   [39]          Exhibit 2, Hearing Bundle, Document at A22 (Measurements), page 70.  

   [40]          Exhibit 2, Hearing Bundle, Document A22, page 70.  

   [41]          Exhibit 2, Hearing Bundle, Document at A22 (Measurements), page 70.  

   [42]          Ibid.  

7. The reasons for decision of the internal review request, dated 3 July 2020, referred only to sub-section 34(1)(e) of the Act.  At the hearing it was that particular sub-paragraph of section 34 of the Act that remained in particular contention between the Respondent and the Applicant. In that there is a particular contention between the parties as to sub-section 34(1)(e), that sub-section will be particularly addressed. 

8. In considering sub-section 34(1)(e), the Respondent submitted that it was not the Respondent’s responsibility to provide the fence funding, ‘having regard to what is reasonable to expect a family or home-owner to provide’.[43]  As to sub-section 34(1)(e), the Applicant submitted that the financial situation of the Applicant’s family ‘made it impossible to afford the appropriate fence around the residential property’.[44] 

   [43]          Respondent’s Statement of Facts, Issues and Contentions dated 26 May 2021, page 12, paragraph            36. 

   [44]          Transcript, 1 October 2021, p-87, lines 45-46.

9. Consideration has been given as to whether the funding or provision of the support would improve the Applicant’s capacity or future capacity, or would reduce any risk to the child’s well-being (rule 3.4(a)(iv) of the Rules). It was not disputed by the Respondent that the Applicant required a secure, enclosed area for both safety and development.[45]  The Applicant submitted that ‘the unanimous expert evidence is that the fence will save the Applicant from harm and will enable the Applicant’s development of capacity’[46].  As referred to above, the Applicant would like to have a dog when the property is fenced.[47]  The Respondent contended that the fence funding sought was not reasonable relevant to the additional benefit achieved and the costs of the plan already approved.[48]   

   [45]          Applicant’s Statement of Issues, Facts and Contentions dated 14 April 2021, page 2.  

   [46]          Transcript, 1 October 2021, p-88, lines 16-19.

   [47]          Exhibit T1, T Documents, T9, page 69.  

   [48]          Respondent’s Statement of Facts, Issues and Contentions dated 26 May 2021, page 12, paragraph             34(e). 

10. The Applicant submitted that the fence was the Respondent’s responsibility because of the distinguishing, ongoing risk of the Applicant escaping onto the road.[49]  The Respondent submitted that ‘all children have that greater risk’[50].  The Respondent further submitted that:[51]

    … you’re not left with anything that distinguishes the risks that [are] sought to be addressed over and above what otherwise might sought to be addressed by a responsible parent who is the parent of a child.

    [49]          Transcript, 1 October 2021, p-87, lines 36-41.    

    [50]          Ibid, p-97, lines 43-44.   

    [51]          Ibid, p-98, lines 8-14.   

11. The Applicant’s treating paediatrician stated the following:[52]

    … I indicated the provision of an appropriate fence would be potentially life saving for [the Applicant].  I am still of this opinion and now there has been a potentially life ending incident when [the Applicant] did exactly what I was worried about, namely scaling [the] fence and running onto the road.  It was purely by luck that she was not hit by a car.  This is therefore factual and not theoretical anymore. 

    [52]          Exhibit 2, Hearing Bundle, Document A20, pages 65-66. 

12. As stated in McGarrigle, as referred to above:  ‘Whether a support is reasonable requires a different assessment to whether a support is necessary’.[53]   

    [53]          McGarrigle at [91] per Mortimer J.

13. The Applicant provided a diagram which stated as to the rear boundary:  ‘no fence needed’.[54]  The Applicant’s parent stated that that fence on the rear boundary was ‘starting to come apart, with the palings actually lifting off’.[55]  As to that rear boundary fence, the Applicant’s parent agreed that that fence could be maintained, as it is only two years old.[56]   

    [54]          Exhibit 2, Hearing Bundle, Document A22, page 70.

    [55]          Transcript, 25 August 2021, p-17, lines 39-40.

    [56]          Ibid, p-32, lines 26-29.

14. As to the fourth side of the property, as referred to above, the Applicant’s parent referred to wooden posts on that barbed wire fence[57] having ‘fallen over’.[58]  There was reference, as referred to above, to a drain that ‘runs along that side of the fence’.[59]  It was stated by the Applicant’s parent that it is ‘very hard for [the Applicant] to access the drain and therefore the Applicant does not go near that fence’[60], as the drain is on the inside of the fence.  It was not indicated in the quotation provided by the Applicant or in oral evidence that the proposed fence-line would be built to totally prevent access to the drain by the Applicant.

    [57]          Ibid, p-32, lines 1-2.

    [58]          Ibid, p-24, lines 5-6.

    [59]          Transcript, 1 October 2021, p-106, lines 45-46.

    [60]          Transcript, 25 August 2021, p-32, lines 43-45.

15. There has been consideration in accordance with rule 3.4(a)(i) of the Rules as to whether it is normal for the Applicant’s parent to provide substantial care and support for the Applicant. The Applicant’s parent gave evidence indicating that it is normal, to use that phraseology in the sub-rule, for the Applicant’s parent to provide substantial care and support for the Applicant. The Respondent submitted that it is reasonable to expect carers to provide support to the Applicant, in the alternative to the Applicant’s parent, where there has been a more than doubling of the ‘care hours’ from six hours to fourteen hours.[61]  The Applicant submitted that the carers ‘will help’, but they ‘do not have capacity to stop the Applicant one hundred per cent of the time’,[62] where the Applicant will ‘essentially never stop being a child’ and ‘has an impulsive propensity for absconding which will not reliably abate’.[63]  The Applicant has very limited capacity for communication and is ‘entirely dependent’ on the parent for all activities of daily living and care.[64]  It was submitted by the Applicant that:[65]

    … the development to her capacity … if [the Applicant] can get outside without somebody to hold [the Applicant’s] hand or hover around … and [the Applicant] can toddle around the place, develop … physical capacity then … learn to socialise, …  then [the Applicant] can maybe work up to going out in public more reliably and more safely.

    [61]          Ibid, p-94, lines 41-45.

    [62]          Ibid, p-88, lines 20-23.

    [63]          Ibid, p-88, lines 1-3.

    [64]          Applicant’s Statement of Issues, Facts and Contentions dated 14 April 2021, page 1.  

    [65]          Transcript, 1 October 2021, p-109, lines 30-35.   

16. The evidence was that the Applicant had been able on a particular occasion to exit the home, unilaterally, to access the house surrounds and the street.  Where the Applicant had been able to depart the confines of the home on that particular occasion, there was not an indication, either in the fencing quotation, documentation or in oral evidence, of the provision of a particular fencing gate-type for the Applicant, that took into account the ‘increased concern for the Applicant’s safety due to the Applicant’s disabilities, including the Applicant’s impaired ability to follow safety-based instruction and disinhibited cognitive processing’.[66] 

    [66]          Exhibit T1, T Documents, T8, page 60.

17. Behind the home there is a carport.[67]  The carport was constructed some eight years ago.[68]   The Applicant’s parent referred to driving a vehicle into the area behind the home from the road that leads to the sub-division.[69]  The proposed boundary fence would include access for a motor vehicle.  There was not an indication, either in the fencing quotation, documentation or in oral evidence, of the provision of a particular fencing gate-type for motor vehicles, that took into account the increased concern for the Applicant’s safety, due to the Applicant’s disabilities.

    [67]          Transcript, 25 August 2021, p-34, lines 38-39.

    [68]          Ibid, p-35, line 5.

    [69]          Ibid, p-35, lines 1-2.

18. As stated above, the Applicant’s treating paediatrician referred to the Applicant ‘scaling the fence and running onto the road’.[70]  There was not a specific indication that the proposed partial fence documentation would take into account, including by any gates, the compounding risk factors, where the Applicant will ‘mature and grow in physical size, strength and agility, coupled with an intellectual disability and disinhibited processing’.[71] Therefore, due to the Applicant’s disability, the Applicant’s needs are substantially greater than those of other children of a similar age, however the proposed one-off capital support does not in those particular circumstances sufficiently deal with the Applicant’s disability. There was no evidence or submission as to a secure fenced area within the property (in the alternative to the proposed fence-line along the boundaries) that could provide ‘a secure, enclosed area for both safety and development’.[72]

    [70]          Exhibit 2, Hearing Bundle, Document A20, pages 65-66. 

    [71]          Exhibit T1, T Documents, T8, page 60.

    [72]          Applicant’s Statement of Issues, Facts and Contentions dated 14 April 2021, page 3, paragraph 3.

19. Further, the Applicant’s parent was asked whether there had been any communications with the rear neighbour as to maintenance of the rear wooden fence.[73]  The Applicant’s parent ‘understood that in Queensland there is a statutory responsibility for adjoining neighbours to communicate as to a dividing fence’.[74]  The rear wooden fence is some two-years old and the Applicant’s parent referred to ‘hammering back down the palings’ on that fence.[75]  As to the other side boundary, the Applicant’s parent stated that there had also been no communication with that neighbour as to that fence-line.[76]  As to the boundary where the newer road was constructed that provides access to the sub-division, the Applicant’s parent stated that there had not been communications to or from the relevant council and/or the developer of the sub-division as to the fence at the Applicant’s residence.[77]  The Respondent submitted that ‘proper inquiries’ needed to be made of the council or alternatively of the developer in all the circumstances.[78]  The Applicant in submissions ‘conceded’ that the Applicant’s parent hadn’t communicated with the neighbours, the developer and/or the council as to the fence, but that that was in circumstances of ‘chronic sleep deprivation and non-sophistication as to responsibility’.[79] 

    [73]          Transcript, 25 August 2021, p-32, lines 10-45.

    [74]          Ibid.

    [75]          Ibid.

    [76]          Ibid.

    [77]          Ibid.

    [78]          Transcript, 1 October 2021, p-94, lines 13-15.

    [79]          Ibid, p-110, lines 1-5.

20. It is not disputed by the Respondent that the proposed support of the partial fence would assist the Applicant to pursue goals and aspirations:  sub-section 34(1)(a).  It is not disputed by the Respondent that the proposed support will assist the Applicant to undertake activities, to facilitate the Applicant’s social participation:  sub-section 34(1)(b).  It is also not disputed by the Respondent that the proposed partial fence quotation does represent value for money:  sub-section 34(1)(c).  Further, there was no contention by the Respondent that the proposed support is not likely to be effective and beneficial for the Applicant:  sub-section 34(1)(d).  However, the funding or non-funding of the fence is also and must be determined subject to ‘taking account’ of what it is ‘reasonable to expect families, carers and the community to provide’.[80]  ‘The function of sub-section 34(1)(e), as with the remainder of sub-section 34(1), is to assist in forming the state of satisfaction as to whether the support is reasonable and necessary’.[81]  There is not in all the circumstances referred to above, the mandatory satisfaction that the partial funding of the fence as sought by the Applicant in the documentation or the boundary fence as a whole, ‘takes into account what is reasonable to expect families, carers and the community to provide’.  There is not in all the circumstances referred to above, including the boundary positioning of the proposed fence, the gate/s, continued vehicle access and additional caring hours, a state of satisfaction as to the boundary fence, totally or partially, being both a reasonable and necessary support.  The funding of the residential boundary fence[82] is not therefore both reasonable and necessary, having regard to sub-section 34(1)(e).  The Applicant’s proposed support is therefore not reasonable and necessary in accordance with section 34 of the Act.  In accordance with sub-section 33(5)(c) of the Act there must be satisfaction 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, in deciding whether or not to approve a statement of participant supports.

    [80]          There has not been an assessment of whether anyone is capable, or willing, to make a financial      contribution to the proposed fence.  

    [81]          Ibid at [100] per Mortimer J.

    [82]          Exhibit 2, Hearing Bundle, Document A22, page 70.  

    DECISION ON REVIEW

21. The decision under review is affirmed.

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter

..........................[SGD]..............................

Associate

Dated:   17 December 2021

Dates of hearing:	25 August 2021 and 1 October 2021
Advocate for the Applicant:	Mr W. Hampton
Counsel for the Respondent:	Mr M. Gollan
Solicitor for the Respondent:	Ms K. Love