Gelzinnis and National Disability Insurance Agency

[2021] AATA 3970

Gelzinnis and National Disability Insurance Agency [2021] AATA 3970 (28 October 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2021/3159

Re:Hilary (Erika) Gelzinnis

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:28 October 2021

Place:Sydney

The Tribunal sets aside the decision under review made on 8 May 2021 and remits the matter to the National Disability Insurance Agency with the following directions:

·the cost of internet services to fund Ms Hilary (Erika) Gelzinnis’ access to assistive technology ($85 per month) is a reasonable and necessary support in accordance with subsection 34(1) of the National Disability Insurance Scheme Act 2013 (Cth); and

·the purchase of a new motor vehicle is not a reasonable and necessary support in accordance with subsection 34(1) of the National Disability Insurance Scheme Act 2013 (Cth).

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

Dr L Bygrave, Member

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – where applicant has psychosocial disability – internet services – motor vehicle – whether requested supports are reasonable and necessary pursuant to subsection 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) – whether supports represent value for money – whether supports relate to disability – financial sustainability of the NDIS – decision under review set aside and remitted with directions

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 31, 33, 34, 100, 209

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

CASES

McGarrigle v National Disability Insurance Agency [2017] FCA 308

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Human Rights Commission, Human Rights and Technology: Final Report 2021 (2021)

REASONS FOR DECISION

Dr L Bygrave, Member

28 October 2021

INTRODUCTION

1. The applicant, Ms Hilary (preferred name, Erika) Gelzinnis, is a participant in the National Disability Insurance Scheme (the NDIS) on the basis of her psychosocial disability. Ms Gelzinnis has also been diagnosed with mental health conditions including dissociative identity disorder, depression, post-traumatic stress disorder and dyslexia.

2. On 10 December 2020, the National Disability Insurance Agency (the NDIA) approved Ms Gelzinnis’ self-managed NDIS plan for the period from 10 December 2020 to 10 December 2022. In a separate letter also dated 10 December 2020, the NDIA decided some supports requested by Ms Gelzinnis were not approved.[1]

   [1] Exhibit T-T11.

3. Ms Gelzinnis sought review of this decision in accordance with section 100 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act) and, on 8 May 2021, the NDIA made a decision (the internal review decision) not to fund the following requested supports:

   ·the cost of internet services; and

   ·$30,000 to $40,000 to purchase a new motor vehicle.[2]

   [2] Exhibit T-T2.

4. On 15 May 2021, Ms Gelzinnis applied to the NDIS Division of the Administrative Appeals Tribunal (the Tribunal) for review of the internal review decision.

5. The matter was heard by the Tribunal in Sydney on 16 September 2021. Ms Gelzinnis represented herself with the support of Ms Hannah Sinclair (occupational therapist and specialist support coordination services) and Ms Margo Mannix (clinical social worker and victim services counsellor). The NDIA was represented by counsel, Mr Matthew Gollan.

   RELEVANT LEGISLATION

   The NDIS statutory framework

6. The objects and principles in the Act provide guidance on interpreting the statute. Section 3 of the Act sets out the objects that relevantly include:

   ·giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and

   ·supporting the independence and social and economic participation of people with disability; and

   ·enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and

   ·facilitating the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and

   ·promoting the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and

   ·protecting and preventing people with disability from experiencing harm arising from poor quality or unsafe supports provided under the NDIS; and

   ·raising community awareness of the issues that affect the social and economic participation of people with disability, and facilitating greater community inclusion of people with disability.

7. Paragraph 3(3)(b) of the Act also notes that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.

8. Section 4 outlines the general principles guiding actions under the Act, which include:

   ·affirming that people with disability:

   ohave the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development;

   oshould be supported to participate in and contribute to social and economic life to the extent of their ability;

   oshould be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports;

   ohave the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation;

   ohave the same right as other members of Australian society to determine their own best interests, including the right to exercise choice and control.

   ·acknowledging and respecting the role of families, carers and other significant persons in the lives of people with disability; and

   ·promoting innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability.

9. Subsection 4(11) of the Act further provides that:

   Reasonable and necessary supports for people with disability should:

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

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

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

10. Under subsection 209(1) of the Act, the Minister may make rules prescribing matters under the Act. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Support Rules) form part of the legislation and are relevant to this matter.

11. Operational Guidelines have also been drafted by the CEO of the NDIA to assist staff to make decisions and perform functions under the Act; these represent government policy and should be applied by the Tribunal unless there is good reason not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[3]

    [3] [1979] AATA 179; (1979) 2 ALD 634.

    Reasonable and necessary supports

12. Chapter 3 of the Act outlines provisions for participants and their plans: section 31 of the Act outlines principles relating to participants’ plans. These include that the preparation, review and replacement of a participant’s plan should, so far as reasonably practical, be underpinned by the right of the participant to maximise their choice and independence, and to facilitate tailored and flexible responses to their goals and needs.

13. Section 33 of the Act sets out matters that must be included in a participant’s plan: pursuant to paragraph 33(2)(b), a participant’s plan must include a statement that specifies the reasonable and necessary supports that will be funded under the NDIS.

14. Subsection 34(1) of the Act sets out criteria for funding reasonable and necessary supports:

    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 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. [emphasis added]

15. Subsection 34(2) of the Act states that the NDIS rules ‘may prescribe methods or criteria to be applied’, or matters to which the CEO (and therefore the Tribunal) is to have regard, in deciding whether or not they are satisfied of the matters mentioned in subsection 34(1).

16. As noted above, the Support Rules have been made in accordance with subsection 209(1) of the Act for the purposes of sections 33 and 34 of the Act and therefore, are relevant to the assessment and determination of the reasonable and necessary supports and the general supports that will be funded for participants under the NDIS.

17. Rule 1.4 of the Support Rules sets out a number of principles for the NDIS that include:

    (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…

18. Part 3 of the Support Rules includes the following criteria for assessing proposed supports:

    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).

    Effective and beneficial and current good practice

    3.2 In 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.

    3.3 In 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.

    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:

    …

    (b)for other participants:

    (i)     the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and

    (ii)    the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:

    (A) the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and

    (B) the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and

    (C) the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and

    (iii)   the extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes; (c) for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.

19. Part 5 of the Support Rules lists general criteria for supports and supports that will not be funded of provided under the NDIS.

20. Rule 5.1 stipulates that a 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.

21. Rule 5.2 states that the day-to-day living costs referred to in paragraph 5.1(d) do not include:

    (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.

22. Schedule 1 of the Support Rules identifies considerations relating to whether supports are most appropriately funded through the NDIS. Under the heading ‘transport’, rules 7.21 and 7.22 state:

    7.21 The NDIS will be responsible for:

    (a)supports for a person that enable independent travel, including through personal transport-related aids and equipment, or training to use public transport; and

    (b)modifications to a private vehicle (i.e. not modifications to public transport or taxis); and

    (c)the reasonable and necessary costs of taxis or other private transport options for those not able to travel independently.

    7.22 The NDIS will not be responsible for:

    (a)ensuring that public transport options are accessible to a person with disability, including through the funding of concessions to people with disability to use public transport; or

    (b)compliance of transport providers and operators with laws dealing with discrimination on the basis of disability, including the Disability Standards for Accessible Public Transport 2002; or

    (c)transport infrastructure, including road and footpath infrastructure, where this is part of a universal service obligation or reasonable adjustment (including managing disability parking and related initiatives).

    EVIDENCE

23. The evidence set out below comprises information about Ms Gelzinnis and the supports she has requested, namely the cost of internet services and funding a new motor vehicle.

    Evidence about the applicant

24. Ms Gelzinnis is ‘an artist, actor, playwright, poet and public speaker’ who lives with severe psychosocial disability and diagnoses of (amongst other conditions) dissociative identity disorder, depression, post-traumatic stress disorder and dyslexia.[4]

    [4] Exhibit T-T4, page 58 and Exhibit A1.

25. Ms Gelzinnis resides alone in an ‘unaffordable, unsafe’ rental property with her psychiatric assistance dog, who is her ‘only consistent day to day support’.[5] Due to her disability, she is currently unable to participate in full-time employment and is financially reliant on the disability support pension. She has four adult sons who are ‘burned out by carer burden’ from being ‘long-term carers without supports’ and consequently, are only able to provide her informal support.[6] She also has support from Ms Mannix, who is her ‘victim support counsellor’ and Ms Sinclair, her former occupational therapist who now resides overseas but continues to provide her support.[7]

    [5] Exhibit T-T19, page 209.

    [6] Exhibit A18, page 11.

    [7] Exhibit T-T19, page 209.

26. In an occupational therapy report dated 11 February 2020, Ms Sinclair explained that Ms Gelzinnis lives with ‘societal indicators of psychosocial disability, ie poverty, stigma, unemployment, unsafe housing, and isolation’ and her:

    …symptoms affect her cognitive processing skills, particularly her ability to initiate, continue, sequence and terminate…activities of daily life such as preparing a cup of tea, through to more complex tasks such as taking public transport. Combined with memory loss and complete disorientation when she dissociates, Erika is a high risk to her personal safety…

    Without supports, I would describe Erika as incredibly vulnerable in our community due to the severe effect on functioning from her disability.[8]

    [8] Exhibit T-T4, pages 54-55, 58.

27. Ms Gelzinnis has been a participant in the NDIS since 2014. In her oral evidence to the Tribunal, she described having access to the NDIS as ‘hope and a chance…[for] freedom and safety’.[9] Ms Gelzinnis explained by reading a piece she had written:

    [9] Oral evidence of Ms Gelzinnis on 16 September 2021, page 14.

    …

    A house plant thrives, struggles or dies depending on its environment and the people who control that environment. Too much water, ignorance, neglect, not enough sun, can kill a plant. The plant is helpless to move or change its circumstances stuck in a pot.

    Due to my psychosocial disability which makes me extremely sensitive to environment and renders me incapable of moving either through dissociation, psycho or societal obstacles…, I am as dependent on and affected by people, and the environment they create, as a house plant is…

    In the past, the broad logic was to put sensitive people in safe environments and monitor their care. Though some people may survive, this is not true freedom, choice, or in many cases safety. The NDIS was created to enable people like me to be safe and free.

    In my case, survival was limiting my activities and aspirations on the one hand, while creating safe environments for myself, my children and other people through my arts practice.

    Trying to maintain this without support led to numerous hospitalisations, suicide attempts and self-harm, as well as interventions like multiple medications, electroconvulsive therapy, and behavioural programs and therapy. 

    They did not work because they did not address the environmental or social issues that were disabling me, as much as my mental health conditions were.

    Struggling to survive and not having the means or agency to assist one’s self is hell, life was unliveable… 

    “Don’t tell me what I need for my safety and freedom” is part of everyday life for others, therefore I cannot have it.

    How others live and how they use resources and objects is irrelevant when I am needing access to these ordinary things to exercise my human right to be safe and free and live a contributing life. My life is not ordinary, the NDIS is not about me aspiring to live an under resourced, “normal” [life] as defined by others.

    It is about me living the life I choose. Moving me from one house to another in the same pot leaves me dependent on whoever wheels the watering can. That may be safe but it’s not free.

    Plant me in the outside world and I can grow roots to tap water and nutrients. Yes, it’s risky, but unlike a pot inside a house, at least there is potential to thrive, that is hope.[10]

    [10] Oral evidence of Ms Gelzinnis on 16 September 2021, pages 16-17.

1. Ms Gelzinnis’ self-managed NDIS plan for the period from 10 December 2020 to 10 December 2022 provides the following relevant information:

   ·Her goals that include:

   Short-term goal

   Replace unhelpful models of support with alternative interventions I can explore to develop my own processes and supports working for me...[11]

   [11] Exhibit T-T19, page 211.

   Medium or long-term goal[s]

   I want creativity to have a central role in my life again, for well-being, socialisation, and professional achievement and growth.

   …

   I want to experience the parts of life I’ve been unable to, due to my disability, like seeing snow…[12]

   ·Her NDIS funding, which comprises:

   ofunding for core supports in the amount of $344,994.92 that includes ‘funding for assistive technology’ as follows: $2,500.00 to buy low cost assistive technology; $1,000.00 to fund low cost assistive technology ‘personal care and safety; $1,500.00 for low cost assistive technology ‘communication or cognitive support’; and $1,000.00 for ‘disability-related health consumables – low cost’;

   otransport funding of $4,944, and

   ototal capacity building supports in the amount of $292,876.42.[13]

   [12] Exhibit T-T19, pages 211-212.

   [13] Exhibit T-T19, pages 214-219.

2. In a written statement filed with the Tribunal on 22 August 2021, Ms Gelzinnis stated she is not requesting additional funding but wants to ‘exercise choice to flexibly and innovatively spend [her] allocated core funding’ to purchase internet services and a new motor vehicle because she believes:

   …they are the most efficient use of [her] funding and will lead to positive outcomes, versus the negative outcome of repeatedly interacting with service models which do not fulfil [her] support needs and are harmful.[14]

   [14] Exhibit A1, page 1.

   Evidence about the applicant’s requested support of internet services

3. Ms Gelzinnis currently has:

   ·a personal internet data and phone package that is part of her son’s ‘family account’ and costs $15 per month, which she pays from her disability support pension;[15] and

   ·an internet service package that costs $85 per month.[16]

   [15] Exhibits A9 and A23.

   [16] Exhibits A8 and A23.

4. She is requesting to use funding allocated for core supports in her NDIS plan to pay the cost of internet services in the amount of $85 per month.

5. Ms Gelzinnis’ internet service package in the amount of $85 per month relates to a ‘risk assessment and assistive technology plan’ that was developed for her by Ms Caroline Daley (‘assistive technology mentor’).[17] This plan identified that Ms Gelzinnis had difficulty with accessing reliable and experienced support workers who met her needs, and outlined alternative assistive technology options to minimise her risk when formal or informal supports were unavailable.[18] For example, the plan identified that watching Disney (or similar soothing) movies mitigates Ms Gelzinnis’ risk of suicidal ideation; using a smart speaker such as Google Home assists her to control her TV or support her while having a bath; and/or using an Apple iPhone with maps supports her if she dissociates and then does not know where she is.

   [17] See Exhibits T-T8, page 109; T-T17, page 179; and A3.

   [18] Exhibit A16.

6. As part of this assistive technology plan (and due to Ms Gelzinnis’ accommodation that does not have a telephone line and therefore does not provide for her to access broadband), Ms Gelzinnis was signed by Ms Daley to two data/Wi-Fi solutions at a cost of $180 per month.[19] Unfortunately, Ms Daley ceased her role supporting Ms Gelzinnis without completing the set up and training of this technology. Ms Gelzinnis has now reduced the cost of her current internet services plan to $85 per month using a single provider.[20] 

   [19] Exhibits A22 and A23.

   [20] Exhibits T-T6, page 74, T-T8, page 117 and A14.

7. Ms Sinclair explained in a report dated 5 October 2020 that Ms Gelzinnis:

   …is living in poverty and isolation because of her disability and having the internet is a lifeline for her. As more government and private services are moving to interacting with clients online, an internet connection at home is an essential part of everyday life. The Covid-19 pandemic response has increased the need for internet at home…

   [The] internet helps Erika’s health in multiple ways, connecting her to the outside world. She can access online communities, self-manage her NDIS funding, and access strategies to help her in times of distress eg watching soothing and trigger-free TV content without advertisements.[21]

   [21] Exhibit T-T8, page 109.

8. In an (undated) request for review, Ms Gelzinnis and Ms Sinclair identified that the internet is a ‘key technological component to certain interventions that increase Erika’s functional ability’.[22] They observed that, without internet access, Ms Gelzinnis cannot move forward with trialing assistive technology interventions (such as the Google Home app) to support her with setting reminders and routines, assisting with food preparation and choices, connecting with others, learning new skills, or gaining information to help her access the community.

   [22] Exhibit T-T17, page 181.

9. Ms Gelzinnis explained her situation in the following statement dictated to Ms Sinclair:

   If I have to pay internet for disability-related online searches, appointments, research, and other activities like connecting with peer groups regarding the NDIS etc, I will be left with my regular $15 per month account which barely covers chats with my family, and personal banking…

   As my life is, everything I do at present is disability related. I expend an enormous amount of energy on trying to overcome systemic dysfunction using inaccessible websites, searching for supports, and information about supports and my condition. Even “simple” things like shopping, booking doctor’s appointments, car rental, and other online activities are only done online because I do not have the supports in place needed to manage offline.

   As a self-manager [of my NDIS plan], I not only need to complete the business of claiming online, I need to keep up to date with policy changes, operational rules, changes that may affect me, and I also need to make sure that my purchased supports are best value for money, which involves a lot of online searching.

   At present, I am struggling to use the smart technology that was purchased to assist me with my daily function. For the prompts and other measures to work, I need not only advice and support from somebody who is skilled, I need 24-hour connection to the internet.

   I do not have this at present.

   Due to my disability and poverty, I live in sub-standard accommodation, which does not have a telephone line, so potentially cheaper internet options are not available to me.

   Until my housing situation is remedied, I cannot improve this unless I am able to purchase a good internet service.

   I struggle to pay the $15 per month that has been my regular internet and phone package for the past four years.

   If I lose the internet, it will not only impact on my ability to self-manage, which is crucial, given service failure, it will isolate me further because I will not be able to connect with a number of peer disability-related Facebook groups and a group that is very important to my well-being…

   Due to the state of my accommodation, when it rains, I cannot get TV reception. I use the TV as a distraction when I’m struggling with mental distress. At these times it is essential that I have access to Netflix or similar because I can access non-triggering material to self-soothe. Clearly this is much cheaper than hiring someone to sit with me or me ending up in emergency hospital. In the future, I would like to feel confident that a system [such as Google Home or similar] can be set up as it was meant to be so that I can be as independent as possible…[23]

   [23] Exhibit T-T17, pages 182-184.

10. Reports by Ms Sinclair and Ms Mannix confirmed that Ms Gelzinnis cannot afford to personally pay for phone and data costs in excess of $15 per month from her disability support pension, and it is ‘unsafe’ for her to access Wi-Fi from public spaces such as a library or shopping centre because of her disability as well as the current situation with the covid-19 pandemic.[24]

    [24] Exhibits A3, page 5 and A15.

11. Indeed, in a written statement dated 19 August 2021, Ms Gelzinnis and Ms Sinclair outlined her past attempts to access alternative internet services, including public internet access at the library, shopping centre, public hotspots and/or short-term accommodation. They explained Ms Gelzinnis cannot access government-subsidised internet plans for low-income earners because these plans require broadband connection, which she does not have in her current accommodation because she does not have a phone line connection.[25]

    [25] Exhibit A14, page 8.

12. Finally, Ms Gelzinnis filed the final ‘Human Rights and Technology’ report published by the Australian Human Rights Commission on 1 March 2021. This report discussed availability of new technology, noting that people with disability ‘experience lower rates of broadband internet access compared with the rest of Australia’.[26] Relevantly, recommendation 34 of this report recommended that the NDIA, in consultation with people with disability, should:

    …review its policies regarding funding of reasonable and necessary supports as those policies apply to accessible goods, services and facilities, which use Digital Communication Technologies and which can be shown to enable people with disability to enjoy greater independence and participation in all areas of life.

    In particular, the NDIA should focus on increasing access to internet plans, computers, tablets, laptops and smartphones and other items that rely on Digital Communication Technologies. [emphasis added][27]

    Evidence about the applicant’s requested support of a motor vehicle and alternative transport options

    [26] Australian Human Rights Commission, Human Rights and Technology: Final Report 2021 (2021), page 172.

    [27] Australian Human Rights Commission, Human Rights and Technology: Final Report 2021 (2021), page 176.

13. Ms Gelzinnis is requesting to use funding allocated for core supports in her NDIS plan to:

    ·purchase a new motor vehicle at a cost of $30,000 to $40,000; and

    ·pay for expenses associated with owning a motor vehicle including maintenance and servicing, registration, and fuel.

14. At the hearing, Ms Gelzinnis said that she previously owned a car but let go of it three years ago because it was no longer a financial priority as her children were then grownup and she did not need to ‘take them places’.[28] She explained this car was no longer affordable because it was second-hand, expensive to repair and unreliable.

    [28] Oral evidence of Ms Gelzinnis on 16 September 2021, pages 33 and 63.

15. Ms Gelzinnis told the Tribunal that she does not currently own a car and cannot save money to purchase a car on her pension. She wants a car so that she can visit her children and grandchildren, take her psychiatric assistance dog to off-leash parks, attend pre-arranged appointments and have the ‘freedom’ to get in her car and go wherever she wants.[29]

    [29] Oral evidence of Ms Gelzinnis on 16 September 2021, page 33.

16. In an (undated) request for review completed by Ms Sinclair and Ms Gelzinnis, Ms Gelzinnis stated:

    Without safe access to a vehicle which is suited to me I cannot attend appointments, shop, access the community or work towards any of my goals.

    My already burdened sons who either do not own cars or are not close enough to assist have my lack of supports added to their general worries about me.

    This has affected our relationship to the point that they have withdrawn for their own wellbeing.

    Not having a car means I can no longer offer the ordinary assistance I used to give like lifts in an emergency, loans of my car if need be etc.

    I also cannot travel to see my grandchildren or assist my sister who lives in supported accommodation unless I rent a car.[30]

    [30] Exhibit T-T17, pages 172-173.

17. Ms Sinclair opined that having ‘access to a private vehicle has become the safest and only viable option for [Ms Gelzinnis] if she has any chance to meet any of her NDIS plan goals’ due to her ‘unique situation’.[31] Ms Sinclair identified potential benefits of Ms Gelzinnis using a private motor vehicle, including:

    ·driving a familiar and safe car that is set up for Ms Gelzinnis’ use will assist her to access the community, and generate self-reliance and independence;

    ·being able to fix a travel crate into the vehicle will provide a safer option for traveling with her psychiatric assistance dog;

    ·being able to drive to remote and rural locations, including the snow, which is one of Ms Gelzinnis’ long-term goals; and

    ·cost savings to the NDIS if Ms Gelzinnis can independently drive a car rather than use support workers to drive her places.[32]

    [31] Exhibit T-T17, page 168.

    [32] Exhibit T-T17, page 170.

18. In written statements filed with the Tribunal in August 2021, Ms Gelzinnis also submitted that:

    ·a car is a ‘mobile and secure, readily available safe environment’ and this is important because she resides in unsafe accommodation;[33] and

    ·she does not have ‘other private travel options’;[34] and

    ·a ‘car is more than just transport; it is an enabler of all areas of life of an independent single person with a very low income’.[35]

    [33] Exhibit A1, page 12.

    [34] Exhibit A2, page 21.

    [35] Exhibit A2, page 21.

19. Ms Gelzinnis, in her written and oral evidence, stated that she has tried alternative travel supports but these are not suitable. Ms Sinclair also wrote in a report dated 5 August 2021 that Ms Gelzinnis ‘has explored all methods of transport that are theoretically available to her and has found these are not accessible to her’.[36] Their evidence sets out the following alternative travel supports available to Ms Gelzinnis and the reasons these supports are unsuitable:

    [36] Exhibit A3, pages 3-4.

    ·Rental cars: this option is expensive, Ms Gelzinnis needs to book ahead and cars are not always available, and she needs to take public transport and walk to get to the rental car depot.

    oA functional assessment report by Ms Sinclair dated 31 August 2020 noted Ms Gelzinnis trialed renting a car for two to three days a week in 2019 to allow her to attend her scheduled appointments at known locations. She stated that Ms Gelzinnis used a support worker to put in place a travel plan when accessing a new location and ‘is able to drive when she is well and will not drive when she is unwell’.[37]

    oMs Gelzinnis filed a spreadsheet that compared the estimated cost of purchasing a private vehicle over two years ($58,280) versus the estimated cost of renting a vehicle over two years ($50,316.24).[38]

    ·Car subscription: this option is expensive and, based on Ms Gelzinnis’ research for her local area, is not available to her because she is in receipt of a pension.

    ·Public transport (buses, light rail, trains): Ms Gelzinnis stated her local government area has ‘poor public transport to many areas’.[39] She has had ‘mixed experiences’ with public transport due to ‘transition points’ and ‘crowding’, her difficulty accessing timetables online and remembering bus numbers, her inability to wait in hot weather, and her past negative experiences with drivers who were not aware of policies around assistance dogs.[40]

    ·Taxis and Uber: this option is ‘helpful in an emergency’, but she has had stressful experiences when drivers have discriminated against taking her psychiatric assistance dog.[41] Ms Gelzinnis provided evidence of an incident of assault where an Uber driver refused to take her assistance dog in his car.[42]

    ·Community transport: this option has not been available at the times Ms Gelzinnis has required and is not appropriate due to ‘long, out-of-the-way trips with…strangers getting on and off’.[43]

    ·Lifts from friends / son’s friends: this option is difficult as Ms Gelzinnis is socially isolated and requesting lifts puts a strain on relationships.

    ·Support workers driving Ms Gelzinnis to appointments / access the community: this option does not work for Ms Gelzinnis due to support workers failing to turn up or not providing a safe environment for her to travel.[44]

    [37] Exhibit T-T6, page 85.

    [38] Exhibit A11.

    [39] Exhibit T-T6, page 85.

    [40] Exhibit T-T6, page 85.

    [41] Exhibit T-T6, page 85.

    [42] Exhibit A17.

    [43] Exhibit A14, page 9.

    [44] Exhibits T-T8, page 114 and A14.

20. Ms Gelzinnis currently receives transport funding in her NDIS plan in the amount of $4,944 that is ‘a contribution towards any transport related costs’.[45] In submissions dated 22 August 2021, Ms Gelzinnis wrote that this transport funding:

    ·funds travel of ‘48 km/week at the current $1 per km’, which does not consider her transport needs for ‘essential activities’ that includes attending her counsellor (18 kms), and going to the local shop (6 kms), the closest fenced off-leash dog park (20 kms) and the chemist (4 kms);[46]

    ·does not provide sufficient funding to visit her sons and her sister, attend social activities, undertake unexpected shopping, go to the pet food shop and groomers, and attend other health appointments.

    [45] Exhibit T-T19, page 215.

    [46] Exhibit A1, page 25.

21. Prior to the hearing, Ms Gelzinnis filed documentation with the Tribunal verifying that she currently holds a NSW driver licence, mobility parking scheme permit and companion card; and has held an unrestricted driver licence since 1988 and has a faultless driving record.[47] In cross-examination, Ms Gelzinnis was asked about her driving record that shows a period of eight days in 2019 where her driver licence was suspended for ‘medical reasons’.[48] She explained that this suspension was due to changing the system of assessing/renewing her driver licence by her general practitioner from a handwritten paper format to an online form. She said that, in the past, her general practitioner always declared her medical condition but stated that he was confident she could manage her condition; however, this option was not available on the online form and her general practitioner had to separately contact NSW transport to advise it was safe for her to drive.[49]

    [47] Exhibit A13.

    [48] Exhibit A13.

    [49] Oral evidence of Ms Gelzinnis on 16 September 2021, page 58.

22. Finally, for completeness, I note that Ms Gelzinnis filed a research paper titled ‘Means of transport and ontological security: Do cars provide psycho-social benefits to their users?’.[50] In summary, this paper set out research that identified psycho-social benefits people derive from their cars in order to consider ways to make public transport attractive; however, this research has minimal relevance in view of the current matter before the Tribunal.

    [50] Exhibit T-T3 and Rosemary Hiscock et al, ‘Means of transport and ontological security: Do cars provide psycho-social benefits to their users?’ (2002) 7 Transportation Research Part D: Transport and Environment 119.

    CONSIDERATION

23. The sole issues for determination by the Tribunal are whether Ms Gelzinnis can flexibly use funding currently in her self-managed NDIS plan to pay for the following supports:

    ·internet services in the amount of $85 per month; and

    ·a new motor vehicle in the amount of $30,000 to $40,000 and ancillary costs.

24. Prior to my consideration of these requested supports, I make the following observations.

25. Ms Gelzinnis filed extensive evidence with the NDIA and the Tribunal about her experiences with the NDIS, particularly her difficulties with finding consistent and suitable people to provide her the supports she requires. While I acknowledge these are legitimate and unresolved concerns for Ms Gelzinnis, these matters – described by Ms Sinclair as ‘market failure’ and a ‘complex backlog of system obstacles’ – are largely beyond the provisions of the Act that determine the scope of this review by the Tribunal.[51]

    [51] Exhibit T-T6, page 73.

1. Nonetheless, Ms Gelzinnis’ experiences with the NDIS – as a person diagnosed with a severe psychosocial disability, dissociative identity disorder, depression, post-traumatic stress disorder and dyslexia – raise the following issues that are relevant to this review and my consideration of whether the identified and requested supports are ‘reasonable and necessary’ in accordance with the statutory provisions.

2. First, Ms Gelzinnis has been very clear that she is not seeking additional NDIS funding to pay for the supports she has requested. Rather, she is asking for flexibility to use the funding she has been allocated in the core supports budget of her NDIS plan to pay for supports she believes will assist her to meet her identified goals.

3. The second (and related) issue is that, while Ms Gelzinnis acknowledged she has been allocated generous and appropriate funding in her NDIS plan, a substantial portion of this funding has not been used. At the hearing, Ms Gelzinnis said she currently has $90,693 unspent in her NDIS plan for ‘assistance with social and community participation’ and $214,225 remaining for ‘assistance with daily life’.[52]

   [52] Oral evidence of Ms Gelzinnis on 16 September 2021, page 55.

4. Written submissions by Ms Gelzinnis and Ms Sinclair have stated that the unspent portion of Ms Gelzinnis’ funding is due to the failure of service providers to supply her the supports she requires.[53] Ms Gelzinnis provided an excerpt from her submission to the Joint Standing Committee on the NDIS, in which she observed her experiences with support workers and support coordinators, and being told we ‘don’t have any staff skilled enough to look after you’.[54] She further noted to the Tribunal that a ‘lack of service models that fit’ is part of her psychosocial disability.[55]

   [53] Exhibit T-T8, page 125.

   [54] Exhibit T-T8, page 123.

   [55] Exhibit A1, page 7.

5. Third, this ‘failure’ of the market to provide Ms Gelzinnis with supports has required her to consider alternative supports to ensure she is not reliant on support workers (who have let her down in the past) and can live as independently as possible. In submissions dated 22 August 2021, Ms Gelzinnis wrote:

   The NDIA cannot separate my environment from me and my disability when it is my environment and my power to control my environment which IS part of my psychosocial disability.[56] [emphasis in original]

   [56] Exhibit A1, page 16.

6. It is apparent that these issues reflecting Ms Gelzinnis’ experiences with the NDIS underpin her rationale for requesting supports of internet services and a motor vehicle are funded from her NDIS plan. This is because both these supports seek to minimise her reliance on support workers and consequently, protect and buffer her from potential market failure.

   1. Cost of internet services in the amount of $85 per month

7. The NDIA, in written submissions dated 27 August 2021, contended that the ‘provision of an internet service’ does not comply with rules 5.1 and 5.2 in the Support Rules or paragraphs 34(1)(e) and (f) of the Act. In particular, the NDIA submitted the cost of internet services is:

   ·a ‘day to day living cost’ equivalent to utility expenses such as electricity, gas, water;

   ·not an ‘additional living cost’ that is ‘solely and directly a result’ of the applicant’s disability support needs; 

   ·not ancillary to another support; and

   ·not a cost the applicant ‘would not otherwise incur’.[57]

   [57] Respondent’s Statement of Facts, Issues and Contentions dated 27 August 2021, paragraph 28.

8. However, these submissions misconstrue Ms Gelzinnis’ situation in relation to her internet services. As I set out in paragraph 30 above, Ms Gelzinnis has two separate accounts:

   ·a personal internet data and phone package that costs $15 per month and she pays from her disability support pension; and

   ·an internet service package that costs $85 per month.

9. I am satisfied Ms Gelzinnis’ personal internet data and phone package that costs $15 per month can be considered a ‘day-to-day living cost’ that is not attributable to her disability support needs and therefore cannot be funded under the NDIS because it does not meet rule 5.1(d) of the Support Rules.

10. In relation to Ms Gelzinnis’ internet service package costing $85 per month, I am satisfied the evidence supports the following findings:

    ·The internet service that currently costs $85 per month was initially set up by Ms Daley (an ‘assistive technology mentor’) at a higher monthly service cost to provide an assistive technology package being developed for Ms Gelzinnis.

    ·Ms Gelzinnis is still in the process of trialing assistive technology interventions (such as Google Home) that will allow her to set reminders and routines, assist with food preparation and choices, connect with other people etc. These interventions are aimed at, for example, reducing her reliance on support workers or supporting her to engage with others online and thereby lessening her experiences of social isolation due to her psychosocial disability. 

    ·The process of trialing some assistive technology interventions has been delayed by factors including Ms Daley ceasing to work with Ms Gelzinnis and uncertainty regarding the funding of internet services by the NDIS.

    ·Ms Gelzinnis currently uses the internet service to undertake activities that include self-managing her NDIS plan and researching relevant policies/supports, booking appointments etc online, accessing soothing movies without advertisements via online streaming, and engaging with friends through social media platforms. These activities support Ms Gelzinnis in managing her psychosocial disability and therefore, are related to her disability. For example, watching soothing and trigger-free movies or TV without advertisements has been identified as a support for Ms Gelzinnis when she is distressed or experiencing suicidal ideation, and accessing social media is a relatively safe way for Ms Gelzinnis to engage with friends (thereby reducing her social isolation).

    ·The internet service supports assistive technology interventions that Ms Gelzinnis uses in her home. Therefore, alternative ‘public’ mechanisms to access to the internet such as Wi-Fi at a library or shopping centre cannot be used by Ms Gelzinnis. Less expensive options, such as government-subsidised internet or broadband plans, are not available to Ms Gelzinnis as her accommodation does not have a phone line connection.

    ·Ms Gelzinnis also cannot safely access internet services in public places because of her psychosocial disability, dissociative identity disorder, depression, post-traumatic stress disorder and dyslexia.

11. Having regard to the provisions in subsection 34(1) of the Act, I am satisfied the evidence shows that funding internet services in the amount of $85 per month will:

    ·support Ms Gelzinnis to pursue her goals listed in her NDIS plan, in particular, her short-term goal to replace ‘unhelpful models of support’ with alternative interventions to develop her own processes and supports that work for her;

    ·assist Ms Gelzinnis to develop and utilise assistive technology interventions, which in turn will facilitate her social and economic participation;

    ·represent value for money in circumstances where Ms Gelzinnis is able to develop an assistive technology package (for example, using Google Home) that will reduce her reliance on formal supports such as support workers;

    ·be effective and beneficial for Ms Gelzinnis, having regard to good practice and recommendation 34 in the ‘Human Rights and Technology’ report; and

    ·be most appropriately funded through the NDIS.

12. I have also considered Part 5 of the Support Rules. While I accept there may be circumstances in which the cost of internet services can be considered a ‘day-to-day living cost’, I find the cost of Ms Gelzinnis’ internet service in the amount of $85 per month is:

    ·separate to Ms Gelzinnis’ personal phone and data plan in the amount of $15 per month and which she pays for from her disability support pension); and

    ·incurred by Ms Gelzinnis ‘solely and directly as a result of [her] disability support needs’ because it enables the development of an assistive technology package for her; and

    ·ancillary to ‘assistive technology support funding’ already provided under Ms Gelzinnis’ NDIS plan.

    I am therefore satisfied the criteria in rule 5.2 of the Support Rules is met.

13. Finally, in my consideration of this support, I have had regard to Mortimer J’s decision in McGarrigle v National Disability Insurance Agency in which her Honour stated:

    Once a decision is made that the support…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.

    The 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… [58] [emphasis added]

    [58] [2017] FCA 308 at [91], [93-95].

14. As Ms Gelzinnis’ assistive technology package is being developed to support her disability, it would appear that ‘fully’ funding this support would include both the funding for assistive technology (already allocated in her NDIS plan) and the internet service that enables her to use the assistive technology.

15. I am satisfied the cost of internet services in the amount of $85 per month is a reasonable and necessary support in accordance with subsection 34(1) of the Act.

    2. A new motor vehicle in the estimated amount of $30,000 to $40,000

16. In written submissions dated 27 August 2021, the NDIA wrote that the ‘supply of a new motor vehicle [for Ms Gelzinnis] is neither reasonable nor necessary having regard to the legislative scheme’, noting that this support does not represent value for money as required by paragraph 34(1)(c) of the Act.[59] The NDIA further noted Ms Gelzinnis:

    ·already has provision for transport costs ($4,944.00) in her NDIS plan;

    ·lives in a city area that is ‘well serviced’ by public transport including rail, light rail, buses;

    ·has access to ‘significant sums’ for ‘carer services who may be utilised for additional transport needs’;

    ·can safely and lawfully restrain her psychiatric assistance dog with the use of a seatbelt harness;

    ·has family members and/or carers who can support her to attend social functions and appointments, go shopping etc; and

    ·has ‘not demonstrated’ the funding of a motor vehicle ‘is related to her disability’.[60]

    [59] Respondent’s Statement of Facts, Issues and Contentions dated 27 August 2021, subparagraph 27(i).

    [60] Respondent’s Statement of Facts, Issues and Contentions dated 27 August 2021, subparagraphs 27(iv), 27(v), 27(vi), 27(viii), 27(x), 27(xi).

17. The NDIA also submitted the provision of a motor vehicle ‘would not likely be effective and beneficial’ for Ms Gelzinnis, having regard to good practice as required by paragraph 34(1)(d) of the Act and contended that the:

    …preponderance of the evidence suggests that it may not be safe for the Applicant or other road users if she were to have access to a personal motor vehicle (given her complex conditions and severe and extreme symptom response, that may come upon her unexpectedly and/or in stressful situations).[61]

    [61] Respondent’s Statement of Facts, Issues and Contentions dated 27 August 2021, subparagraph 27(vii).

18. I note there is no reference in the Support Rules that explicitly states the purchase a motor vehicle is not a ‘reasonable and necessary’ support. Part 5 of the Support Rules only provide ‘general criteria’ regarding supports, and rules 7.21 and 7.22 list transport supports that the NDIS ‘will’ and ‘will not be responsible for’.

19. The Operational Guideline – Including specific types of supports in plans (the Supports Guideline) provides policy guidance in relation to making decisions to approve specific types of supports; relevantly, clause 7 is titled ‘Vehicle modifications’ and states (among other matters) that the ‘NDIA will generally not fund the purchase of a motor vehicle, regular insurance, registration or running costs’.

20. It is my view that the insertion of the word ‘generally’ before the words ‘not fund’ predicates that this policy envisages that there may be circumstances where funding the purchase of a motor vehicle and ancillary costs would be contemplated by the NDIS. However, the NDIS statutory and policy framework is silent about what such circumstances may be.

21. I turn, then, to the criteria in subsection 34(1) of the Act and the Support Rules.

22. In considering the provisions of paragraphs 34(1)(a) and (b) of the Act, I am satisfied the evidence shows that access to a private motor vehicle will assist Ms Gelzinnis to pursue her goals, objectives and aspirations in her NDIS plan; and assist her to undertake activities to facilitate her social and economic participation. Ms Gelzinnis’ evidence clearly shows her goal of creativity for her well-being, socialisation and professional achievement; and her goal to experience aspects of life such as seeing snow. I accept that a private motor vehicle will assist her to travel to visit family members, attend appointments, take her assistance dog to off-leash areas and access the community.

23. I now consider the requirement in paragraph 34(1)(c) of the Act, that ‘the support represents value for money’. For the purpose of rule 3.1(a), I am satisfied that Ms Gelzinnis has provided extensive evidence (summarised at paragraph 46 above) about alternative or comparable travel supports and the reasons she views these supports are not suitable for her circumstances.

24. Based on this evidence, there is no dispute that Ms Gelzinnis, due to her psychosocial disability and dissociative identity disorder, has had difficult and sometimes traumatic experiences accessing public transport and taxis/Ubers with her psychiatric assistance dog. However, there is no evidence that Ms Gelzinnis cannot access public transport, or use taxis/Ubers, or rent a car when she wants to travel further distances. Indeed, the evidence indicates that Ms Gelzinnis has utilised these modes of transport when required.

25. I am further satisfied the evidence shows Ms Gelzinnis receives funding for transport costs in the amount of $4,944.00 in her NDIS plan, lives in an area that is supported by public transport and taxis/Ubers, and can access funding in her NDIS plan for support workers to transport her if required.

26. There is also no evidence before the Tribunal that shows funding the purchase of a motor vehicle will ‘substantially’ improve Ms Gelzinnis’ outcomes or be of long-term benefit to her. I accept that Ms Gelzinnis believes a motor vehicle will increase her independence and reduce her reliance on support workers; however, this view is not unequivocally supported in my consideration and weighing of the evidence.

27. I have also considered Ms Gelzinnis’ submissions about the costs versus the benefits of purchasing a private motor vehicle and her request to ‘flexibly and innovatively’ spend the funding allocated in her NDIS plan.

28. As I set out in paragraphs 6 to 8 above, the objects of the Act at subsection 3(1) importantly iterate choice and control, independence, inclusion, and social and economic participation for persons with disability. However, the language of paragraph 3(3)(b) – that, ‘in giving effect to the objects of the Act, regard is to be had to…the need to ensure the financial sustainability of the NDIS’ – envisages that I must weigh on the one side, the objects listed at subsection 3(1) of the Act and on the other side, the financial sustainability of the NDIS.

29. Weighing all the evidence, for the reasons I have already stated at paragraphs 76 to 78 above, I do not find that funding the purchase of a new motor vehicle for Ms Gelzinnis meets the requirements of paragraph 34(1)(c) of the Act. This is because I am satisfied that it does not represent value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative supports for Ms Gelzinnis.

30. Regarding the requirements in paragraphs 34(1)(d), (e) and (f) of the Act, I find there is insufficient evidence before the Tribunal for me to be satisfied that the purchase of a new motor vehicle:

    ·will be, or is likely to be, effective and beneficial for Ms Gelzinnis, having regard to current good practice;

    ·takes account of what it is reasonable to expect families, carers, informal networks and the community to provide; and/or

    ·is most appropriately funded or provided through the NDIS.

31. In considering Part 5 of the Support Rules, I also find there is insufficient evidence before the Tribunal showing how the purchase of a motor vehicle relates to Ms Gelzinnis’ disability. I am therefore satisfied this support cannot be funded under the NDIS in accordance with rule 5.1(b) of the Support Rules.

32. Finally, I address the written and oral submissions made by the NDIA that the evidence about the effect of Ms Gelzinnis’ psychosocial disability and dissociative identity disorder suggests that it may not be safe, either for her or other road users, if she had access to a private motor vehicle. I find these submissions inconsistent with the following evidence:

    ·Ms Gelzinnis has a current driver licence and a faultless driving record of 33 years;

    ·Ms Gelzinnis described the process of consulting her general practitioner – who knows her medical history – in relation to renewing her driver licence and mobility parking scheme permit; and

    ·Ms Sinclair declared in her report dated 31 August 2020 that Ms Gelzinnis ‘will not drive when she is unwell’.

33. The reason for the NDIA pressing these submissions in the context of this evidence remains unclear, although it does provide support for Ms Gelzinnis’ statements about the stigma she experiences as a person with a psychosocial disability.

34. I am not satisfied the purchase of a new motor vehicle is a reasonable and necessary support in accordance with subsection 34(1) of the Act.

    CONCLUSION

35. For the reasons set out above, I am satisfied that Ms Gelzinnis’ request to use funding allocated in her self-managed NDIS plan to:

    ·pay for internet services in the amount of $85 per month is a reasonable and necessary support in accordance with subsection 34(1) of the Act; and

    ·purchase a new motor vehicle is not a reasonable and necessary support in accordance with subsection 34(1) of the Act.

    DECISION

36. The Tribunal sets aside the decision under review made on 8 May 2021 and remits the matter to the NDIA with the following directions:

    ·the cost of internet services to fund Ms Gelzinnis’ access to assistive technology ($85 per month) is a reasonable and necessary support in accordance with subsection 34(1) of the Act; and

    ·the purchase of a new motor vehicle is not a reasonable and necessary support in accordance with subsection 34(1) of the Act.

I certify that the preceding 88 (eighty - eight) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 28 October 2021

Date(s) of hearing:	16 September 2021
Applicant:	In person
Counsel for the Respondent:	Mr Matthew Gollan, Seven Windeyer Chambers