Geard and National Disability Insurance Agency
[2023] AATA 30
•19 January 2023
Geard and National Disability Insurance Agency [2023] AATA 30 (19 January 2023)
Division:NATIONAL DISABILITY AND INSURANCE SCHEME DIVISION
File Number(s): 2021/8309
Re:Deirn Geard
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal: Senior Member George
Date of Decision: 19 January 2023
Place:Adelaide
The decision under review is affirmed.
…………[Sgnd]……………
Senior Member George
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – Reasonable and necessary supports – comparable supports – value for money – decision 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
Drake and Minister for Immigration and Ethnic Affairs (No 2 ) (1979) 2 ALD 634
DIJD and National Disability Insurance Agency [2018] AATA 2971
McGarrigle v National Disability Insurance Agency [2017] FCA 308
ZNDV and National Disability Insurance Agency [2014] AATA 921
Secondary Materials
National Disability Insurance Agency, Operational Guideline, National Disability Insurance Scheme < FOR DECISION
Senior Member George
19 January 2023
INTRODUCTION
Mr Geard (the Applicant) is a recipient of support from the Respondent. He is aged 68 years and suffers from visual impairment, peripheral visual field loss, severe constriction of the peripheral optic nerve, tunnel vision, and he only has eight per cent remaining vision.[1] In his statement of lived experience, the Applicant described himself as having “around 6-7 % central core vision”, whilst his “peripheral vision is almost gone”.[2]
[1] Exhibit R3, T1B, page 30.
[2] Exhibit A3, page 1.
The Applicant’s National Disability Insurance Scheme (NDIS) plan commenced on 29 June 2021 (the original decision). He sought an internal review of the original decision on 1 October 2021. The Respondent affirmed the internal review of the original decision on 15 October 2021. This is the reviewable decision.[3]
[3] Exhibit R4, page 1.
On 23 March 2022, a Conference Registrar directed that:
On or before 7 April 2022, the Respondent must inform the Tribunal in writing whether or not the parties have reached agreement as to the terms of a decision in the proceeding.
The matter proceeded to hearing on 20 July 2022. However, prior to the commencement of the hearing the Tribunal made a Direction by consent remitting some issues in dispute. It did so after having regard to the Respondent’s decision that Level 3 transport funding is a reasonable and necessary support for the purposes of s 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) (the Act).
The remaining question in this matter is the reasonableness and necessity of the requested provision of a Thermomix by the Respondent. It is the Respondent’s contention that the Thermomix does not represent value for money, contrary to s 34(1)(c) of the Act.[4]
[4] Exhibit R2, page 9, paragraph [30.a].
On 15 October 2021, following an internal review request, the Respondent declined the Applicant’s request for a Thermomix after assessing this support against each of the criteria in s 34 of the Act. The Respondent’s reasoning regarding the ‘effective and beneficial’ and ‘value for money’ criteria, in ss 34(1)(d) and 34(1)(c) of the Act, was as follows:
In order to meet this criteria, a support must be likely to be effective and beneficial having regard to current good practice.
In your recent plan review request you have stated that you would like to receive additional funding for a thermomix. I am not satisfied that this request meets the criteria for effective and beneficial supports. This is because the Agency has not received sufficient documentation to justify your request. In order for funding for this to be included in your plan we would typically expect a report by a therapist endorsing this requirement, detailing expected outcomes, as well as a quote outlining the associated costs.
There is currently $6,452.72 available in your current plan under the capacity building support budgets, which can be used flexibly to obtain assessments to support any future requests.
This request does not meets Value for money Section 34(1)(c)) as there is insufficient evidence that comparable alternatives could not achieve the similar outcomes at a substantially lower cost and there has been no consideration and/or trial of the full range of low cost adaptive equipment available to determine comparative functional results for these items using pre and post outcome measures.
On 20 July 2022, the hearing proceeded by electronic means. The Applicant was self-represented. The Respondent was represented by Ms Francois of Counsel, instructed by Mills Oakley.
The Tribunal received the written evidence that is listed in the Exhibit Register marked “Annexure A”.
An issue was raised by the Respondent at the commencement of the hearing that Ms Thakur, an Occupational Therapist who is the author of Exhibit A1, would not be available for cross-examination.[5] The Tribunal canvassed the possibility of an adjournment, however neither party applied for any such adjournment. The issue of Ms Thakur’s untested written evidence, as with all evidence before the Tribunal, goes to weight.[6]
[5] Transcript, page 3, line 31.
[6] Transcript, page 8, lines 1-14.
The Applicant gave evidence on his own behalf and no other witnesses were called to give evidence in the hearing.
LEGISLATIVE FRAMEWORK
The reasonableness and necessity of supports, such as the requested Thermomix, is codified in s 34 of 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 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).
[Emphasis added]
These requirements are stringent and cumulative.[7]
[7] ZNDV and National Disability Insurance Agency [2014] AATA 921, [18], [80].
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 Guideline (‘the Guideline’)[8]
[8] McGarrigle v National Disability Insurance Agency [2017] FCA 308, [43], [91]-[93]; Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; DIJD and National Disability Insurance Agency [2018] AATA 2971, [50].
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 3.2 relates to the assessment of “Effective and beneficial and current good practice” as follows:
3.2In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a)published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
3.3In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
CONSIDERATION
The Applicant’s statement of lived experience details his vision impairment and the methods he has used to assist with this loss.[9] The Applicant has a guide dog. The Applicant has also conducted his own research and has taken a keen interest in Assistive Technology. The Applicant’s evidence is that:
Currently, my personal goals are to get back to work in a safe environment and to cook with limited supervision in my home. The sad realization is that I am continually getting pushback [from the Respondent] with no increased support for these goals. This always has a break effect on my rate of progress as I must fight for everything that I seek.[10]
[Emphasis added]
[9] Exhibits A4 and A5.
[10] Exhibit A4, page 1.
The Applicant expanded on this issue of cooking:
I have been cooking as best I can with m[y] existing resources however there is currently a safety issue I have owned and operated a restaurant and prepared and cooked for the restaurant, so I am aware of risk areas and many solutions. With m[y] sight now diminished I am seeking a new solution recognizing inherent risks in the kitchen will always remai[n] . My approach is mitigation of risk.
The idea of having a lot of products in the kitchen as opposed to a few that do all that I need is astounding in that the confusion and risks are so high. Clutter is not my friend.[11]
[Emphasis added]
[11] Exhibit A4, page 2.
The Applicant has found that the use of a Thermomix has assisted him. He wrote:
Please note that my daughter has a Thermomix and has had one for near 4 years. She will assist me to transition the learning curve relating to it’s operation and safety. This is a great resource for me.[12]
[12] Exhibit A5
The Applicant cooks with his wife and she supports him, although she is employed and has health issues of her own.[13]
[13] Exhibit A2.
At the hearing, the Applicant gave oral evidence. He was cross-examined at length on his ability to cook and the methodology that he uses. The issues of reducing “clutter”, and “safety”, arose with frequency and it is clear from the Applicant’s evidence that he believes that he can safely cook with a Thermomix 6. Approximately two years ago,[14] the Applicant burned himself on his stovetop “because I can’t tell that it’s on and I will think it’s off and it’s not”.[15] The Applicant continues to use the stovetop “one pot at a time”, which he finds “very limiting”.[16]
[14] Transcript, page 41, line 7.
[15] Transcript, page 29, line 21.
[16] Transcript, page 61, line 33.
The issue of safety is consistent with a goal earlier stated by the Applicant where he wrote:
The Thermomix TM6 Re: Deirn Geard
My goal:
To be able to cook again without the risk of burns from hotplates already in my home. To be able to use 1 device to do all my cooking contributions for my family. I miss the cooking and want to use this device to contribute in a meaningful and valued managed way while maintaining my independence.
It has 20 functions so you can blend, braise, chop, crush, caramelise, heat, knead, grate grind, juice, mix, mill, mince, puree, weigh, whip, stir, steam, sauté, slow-cook and sous-vide food quicker and easier than ever.[17]
[17] Exhibit R3, T1B, page 64.
On 1 September 2021, the Applicant trialled the use of a Thermomix.[18] At that time:
I didn’t actually do any cooking with it, I was demonstrating the functionality and we actually made it work.[19]
[18] Exhibit R3, T1B.
[19] Transcript, page 43, lines 12-13.
In his Statement of Facts and Contentions of 28 April 2022, the Applicant stated:
1 Thermomix meal preparation device
This device was trialled and proved to be safe and within my capacity to use. The Device is a newer model and has been seen in use to be safe and reliable. The Thermomix is many in one and reduced clutter an the associated safety risks. I was instructed to use my existing core fnds but there were not enough funds to allow this with projected costs already in place already. NDIS suggested another cheaper device, but the device was sessed to be at a higher risk level to a blind person by my occupational Therapist. All requests for information and issues they felt needed to be addressed were addressed. [B]y myself and the O.T.[20]
[20] Exhibit A8.
The Occupational Therapist referred to by the Applicant is Ms Thakur (the OT), who completed a report on 21 February 2022.[21] As already noted, the OT was unavailable to give evidence at the hearing and her report was untested.
[21] Exhibit A1.
An issue with the OT’s report is that it does not concisely explain “why the Thermomix is the preferred device, especially having regard to the relative cost, noting that the ThermoCook Pro M 2.0 is listed on the company’s website for $849”. In answer to this enquiry, Ms Thakur wrote “refer to information as above”,[22] which sought an explanation as to “whether there are comparable supports which would achieve the same outcome that the Thermomix TM6 would achieve at a substantially lower cost”.[23]
[22] Exhibit A1, page 2.
[23] Exhibit A1, page 1.
For completeness, the OT’s response to both enquiries is as follows:
Given Deirn’s visual impairment other comparable options such as the ThermoCook were not considered safe for his disability needs.
In particular other product issues with safety, smaller screen size for viewing and a harder to use products ruled out such comparable alternatives.
As mentioned previously in the report.
Cheaper all-in-one kitchen machines would not work as well as the Thermomix TM6 as they do not offer the same quality and features. In particular the larger screen size and the overall ease of the Thermomix.
For example, other all-in-one kitchen machines do not all have:
• In built recipes that are easy to follow.
• Some machines shake more when contents are being ground or mixed.
• Other machines do not have the large touch screen and are too hard to read.
• Other machines have harder to use dials to operate.
• Others may not have an inbuilt weighing function.
• Others may not have the easy-clean feature or ability to place in the dishwasher.
Most importantly upon reviewing alternative options again such as the Optimum ThermoCook, it is noted that while the lid locks onto the jug for this product it can be incorrectly locked as it is a hand twist lock mechanism and if not done correctly it still allows operation in which hot liquids can still spill out. This issue with safety regarding the lid discounted this product as it would not be safe for Deirn to use given his visual impairment. Whereas the lid on the Thermomix TM6 is considered the safer option as it is noted that it has the locking arms and splash guard seal that automatically lock and cannot operate unless it is locked unlike other alternative all-in-one kitchen machines. Furthermore, the ThermoCook has no handle and therefore would appear to have a greater metal surface when handling which could also increase the risk of burns.
It is noted that the previous model of the Thermomix TM31 was subject to 2014 recall due to faulty sealing ring and this has been discontinued. The most recent model of the Thermomix - TM6 is recommended for Deirn in which this issue has been rectified and this issue with burns no longer exist with new models of TM5 and TM6. As a result of the previous issues with Thermomix it is noted that the Thermomix now has a lid that has a motorised lock and a splash guard seal to prevent such issues.
The TM6 is the newest model and has the larger screen which makes it easier for Deirn to follow recipes and now with the wifi function he is also able to utilise the recipes on his iPad pro to select it before starting the cooking task. He can use voice over to have the instructions read out to him. In addition, he can also use his iPhone to read the Thermomix screen. These additional options were not found in other all-in-one kitchen machines and so others were not considered suitable for Deirn.[24]
[Emphasis added]
[24] Exhibit A1, pages 1-2.
Taking this evidence at its highest point, and notwithstanding the Respondent’s inability to test it, the Tribunal may accept that an Optimum ThermoCook is an unsafe – or ineffective and unbeneficial – option for the Applicant due to the risk of burns due to potential incorrect locking of the jug lid. However, it is unclear what other “comparable alternatives”, “other machines” and “alternative options” the OT is referring to in her report beyond the Optimum ThermoCook. The repeated use of the plurals infers that there are alternatives, machines and options in addition to the Thermomix 6 and the Optimum ThermoCook. Unfortunately, the Tribunal does not know what these are.
Rule 3.1(a) of the Rules requires the Tribunal to consider the issue of “value for money” and whether there are comparable supports which would achieve the same outcome at a substantially lower cost. The probative evidence before the Tribunal seems incomplete in this regard as the issue of comparable supports has not been comprehensively addressed in the OT’s report.
CONCLUSION
Having considered this matter closely, the Tribunal is not satisfied that the evidence before the Tribunal supports a finding that a Thermomix 6 fulfils the value for money requirements of Rule 3.1(a) of the Rules. Accordingly, the requirements of s 34(1)(c) of the Act are not met and the Application cannot succeed.
Decision
The reviewable decision is affirmed.
I certify that the preceding 30 paragraphs are a true copy of the reasons for the decision herein of Senior Member George
............................[sgnd]......................................
Associate
Date of Decision: 19 January 2023 Date of Hearing: 20 July 2022 Representation for the Applicant: Self-Represented Counsel for the Respondent:
Solicitor for the Respondent:
Ms R Francois
Mills Oakley
ANNEXURE A - EXHIBIT REGISTER
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE TENDERED
A1
Report of Anuradha Thakur, Occupational Therapist
21 February 2022
20 July 2022
A2
Statement of Karen Geard
20 February 2022
20 July 2022
A3
Applicant’s Statement of Lived Experience
Undated
20 July 2022
A4
Addendum to Applicant’s Statement of Lived Experience
Undated
20 July 2022
A5
Optimum Thermocook Pro-M 2.0 User Manual
Undated
20 July 2022
A6
Thermomix TM6 User Manual
Undated
20 July 2022
A7
Applicant’s email to Parties re: witness availability
18 July 2022
20 July 2022
A8
Applicant’s Statement of Facts, Issues and Contentions
28 April 2022
20 July 2022
R1
Respondent’s Hearing Certificate
11 May 2022
20 July 2022
R2
Respondent’s Statement of Facts, Issues and Contentions
15 June 2022
20 July 2022
R3
T Documents
Various
20 July 2022
R4
Letter from Mills Oakley to Tribunal
19 July 2022
20 July 2022
0
3
0