GMXV and National Disability Insurance Agency

GMXV and National Disability Insurance Agency [2022] AATA 4038 (25 November 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2020/2290
Re:GMXV
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

decision
Tribunal:Senior Member K. Parker
Date of Decision: 25 November 2022
Place:Melbourne

The Tribunal sets aside the decision under review and remits this matter to the Respondent with directions that, within 14 days of the date of this decision, the Respondent is to facilitate the approval of a new statement of participants supports for the Applicant which:
1.replicates all existing supports for GMXV on a pro rata basis;
2.adds funding for the Transport Support (being funding to pay for 12,480km of mileage per annum to transport GMXV by his support workers in their cars); and
3.specifies that all funding under GMXV’s plan is to be Agency-managed.

...................[sgd].....................................................
Senior Member K. Parker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – review of decision relating to decision to approve a statement of participant supports for Applicant – Applicant has autism spectrum disorder and severe intellectual disability – Applicant living with father with frequent outings with mother – transport supports – whether duplication of supports –management of funding under NDIS plan – decision under review set aside and remitted with directions
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013
National Disability Insurance Scheme (Plan Management) Rules 2017
REASONS FOR DECISION
Senior Member K. Parker
25 November 2022
INTRODUCTION

The Applicant, GMXV, is a participant in the National Disability Insurance Scheme (NDIS). He is 18 years old and has been diagnosed with autism spectrum disorder and a severe intellectual disability. GMXV currently resides on a full-time basis with his father (F), and according to GMXV’s mother (M), GMXV has done so since before he turned 15 years old. F and M live in the same suburb of Melbourne.
This application was lodged by M, on behalf of GMXV, on 18 April 2020 seeking review of a decision made by a “reviewer” of the National Disability Insurance Agency (NDIA) under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) on 25 March 2020, in relation to an earlier decision by the NDIA to approve a statement of participant supports (SOPS) for the Applicant.
On 9 November 2020, the Tribunal (differently constituted) remitted this matter under s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Upon remittal, a delegate of the CEO of the NDIA made a decision to approve a new SOPS for GMXV dated 17 November 2020. After the remittal decision, M informed the Tribunal of her intention to proceed with this application for review. By operation of s 42D(4) of the AAT Act, the decision to approve the new SOPS for the Applicant became the Decision Under Review in this proceeding.
In GMXV’s SOPS dated 17 November 2020, the NDIA approved total funded supports for GMXV of $205,560.39 for the notional 12-month period from 17 November 2020 to 17 November 2021. This comprised $141,385.28 of core supports to assist GMXV to undertake activities of daily living including self-care, and to attend and participate in community social and recreational activities of his choice. This SOPS also included Level 3 specialist support coordination for GMXV to the value of $19,054.00 over the course of this one-year plan. This SOPS also included total funding for capacity building supports of $63,633.11. This includes $23,621.52 for a level 2 behaviour support intervention package as mentioned above. This covers funding for 18 hours of specialist behaviour intervention support, 8 hours of behaviour management plan, in training in behaviour management strategies, and 8 hours in individual social skills development. The NDIA informed the Tribunal the “GMXV’s NDIS plan was auto-extended on 17 November 2021. As the plan was auto-extended, there was no new plan or statement of participant supports created”. The Tribunal was subsequently informed that GMXV plan commenced on 17 November 2020 and would continue until 17 November 2022 (that is, it seems that it was converted to a two-year plan).
The NDIA informed the Tribunal that a significant portion of the funding provided under GMXV’s NDIS plan had been underutilised.
In preparation for the hearing of this matter, the Tribunal provided M with several opportunities to identify what GMXV was requesting be added to or changed in his SOPS. To date, M has not identified such matters. M is also a participant under the NDIS and has been diagnosed with serious psychiatric medical conditions. On 15 March 2022, M was voluntarily admitted as an in-patient to a private psychiatric facility for a four-week stay, to participate in an “Emotional Management Program”.
Since the lodgement of this application, several adjournments were sought by M in relation to this proceeding and they were granted on a number of occasions. Given the passage of time since lodgement of this application, and in light of the statutory obligations of the Tribunal under s 2A of the AAT Act, the Tribunal, as presently constituted, did not grant the last request by M for another adjournment of this proceeding, and instead, referred this application to Registry to be listed for a substantive hearing. The background in relation to these procedural matters is set out in the following interlocutory decision made by the Tribunal on 25 January 2022: GMVX and National Disability Insurance Agency [2022] AATA 80 (25 January 2022)
At the substantive hearing, F appeared and advocated on behalf of GMXV. No other witnesses were called. F gave evidence about GMXV’s current situation and what F considered to be his disability-related support needs. F’s evidence informed the Tribunal’s decision as well as the Tribunal’s consideration of the documentary evidence and submissions lodged by M before the hearing. The NDIA lodged a Hearing Tender Bundle before the hearing comprising 1,258 pages of submissions and evidence lodged by the NDIA and M, including the following:
(a)the set of T-Documents lodged by the NDIA on 26 May 2020;
(b)the NDIA’s Statement of Facts, Issues and Contentions lodge on 10 February 2022;
(c)two emails from M dated 20 September 2020 regarding various matters comprising 335 pages in total;
(d)email from M dated 21 October 2020 regarding various matters comprising 136 pages;
(e)email from M dated 9 December 2020 regarding various matters comprising 40 pages;
(f)email from M dated 13 January 2021 regarding various matters comprising 61 pages;
(g)email from M dated 27 May 2021 regarding various matters comprising 15 pages;
(h)Letter of Dr Z (General Practitioner, [name omitted] Family General Practice) dated 5 October 2021;
(i)email from M dated 20 October 2021 regarding finding support service provider and other matters comprising 50 pages;
(j)email from M dated 17 January 2022 attaching letter from Dr Z;
(k)email from M dated 18 January 2022 regarding psychologist and other matters comprising 117 pages;
(l)email from M dated 19 January 2022 attaching submissions comprising 209 pages;
(m)email from M dated 20 January 2022 attaching submissions.
For the reasons set out below and after having considered the evidence and submissions lodged with the Tribunal and given at the hearing, the Tribunal is satisfied that an additional support should be included in GWVX’s statement of participant supports (SOPS) and funded under the NDIS, further to those supports already included in his current NDIS plan. For this reason, the Tribunal sets aside the decision under review and remits this matter to the Respondent with directions that within 14 days of the date of this decision, the Respondent is to facilitate the approval of a new statement of participants supports for the Applicant which:
(a)replicates all existing supports for GMXV on a pro rata basis;
(b)adds funding for the Transport Support (being funding to pay for 12,480km of mileage per annum to transport GMXV by his support workers in their cars); and
(c)specifies that all funding under GMXV’s plan is to be Agency-managed.
ISSUES
The issues before the Tribunal in this application are:
(a)whether the requested transport support should be included in GWVX’s SOPS and funded under the NDIS; and
(b)how the approved funding in GWVX’s SOPS should be managed.
These issues require the Tribunal to consider a range of matters including:
(a)generally, the matters set out in s 33(5) of the NDIS Act;
(b)regarding the issue referred to in paragraph [10(a)], whether the transport supports are “reasonable and necessary supports” based on the mandatory criteria set out in s 34(1) of the NDIS Act and the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Support Rules); and
(c)regarding the issue referred to in paragraph [10(b)] above, the provisions in Division 3 of Part 2 of Chapter 3 of the NDIS Act and the National Disability Insurance Scheme (Plan Management) Rules 2017 (Plan Management Rules).
F’s EVIDENCE AT THE HEARING
At the hearing, F gave evidence that GMXV lived with him at F’s home, which he owns, and which is about 3km away from M’s house. F said it was his intention for GMXV to live in his home for the foreseeable future. F said that GMXV had been living with him 100% of the time. F said that M sees GMXV for an aggregate of 12 hours across four visits per week. Specifically, F said that M sees GMXV for about three hours each Tuesday and Thursday, when she will collect GMXV after school and bring him to F’s home at about 6pm. F said that M also has GMXV for about three hours every Saturday and Sunday afternoon. F said this arrangement was “fairly consistent”. He confirmed that for the remainder of the time, GMXV was in F’s care or at school.
At the hearing, F gave evidence that GMXV was attending a special development school in the suburb within which F lived. He said that GMXV is due to finish attending this school in November 2022. When F was asked what the plans were for GMXV after he finished school, F said “Look, we don’t have a lot of plans for GMXV”. F said there was “nothing on the horizon”.
F confirmed at the hearing that GMXV used a non-verbal form of communication. When asked whether GMXV used any other system of communication, F said that “Apart from very, very basic, you know, just indicating what he wants. And if you know him, you can – we can even indicate his needs if you know what he’s talking about”. F said that generally, GMXV will “come up and move towards what he wants to you to do, and---And you’ve then got to work out what he wants from there”.
F said that his other son is also living at his home in a bungalow “out the back”. F said he had only been living there for one week. F said that his other son was GMXV’s half-brother. The Tribunal will refer to him as B. F was asked whether B was able to provide informal support to GMXV to which F said “yes”. F said that B does not help GMXV with transportation.
F said that he drives GMXV to school. F is unemployed at the moment. He told the Tribunal he was applying for retirement benefits. F confirmed that he had been able to do the morning drive to school and back. When asked if there were any issues with GMXV travelling in the car with him, F said that GMXV was “very good” and there had been “no issues”.
The Tribunal asked F what GMXV’s transportation needs are on a weekly basis, apart from the daily trips to and from school. GMXV gave the following evidence:
Well, a big part of his care from his mum's point of view is the socialising. She doesn't want him - she wants him to be, you know, to experience what's going on out in the world, and so she likes to take him to - and she ends up taking him to, you know, shopping plazas, and … So at one stage he got a bit boisterous when we were taking him on those outings. So she started putting him in a wheelchair, and so that's how they do it now. And he's quite happy with that, and he sits in the wheelchair. And she and the worker push him around the shopping centres and so he's able to see everybody and see what's going on. It gives him some sort of connection with the society, which … Yes, that's worked quite well. Yes.
F said that GMXV is not restrained in the wheelchair and that sometimes he jumped out of it. F said that this is what usually happens when GMXV visits M and that they alternate their visits to three different shopping centres. F said GMXV returns to him with food that he has selected from the shops and trinkets from the “2 Dollar Shop”. The Tribunal asked F whether GMXV is accompanied by a support worker he has on his four weekly visits with M, and he said he was. F confirmed this is always the case. When asked why, F said that M does not drive because she “gets anxiety”. He also said there was the wheelchair (to transport) with as well. Further, F said that GMXV could “run off” if he jumped out of the wheelchair. F said this is why they have the support worker there to help M manage that.
F was asked whether GMXV had a support coordinator at the moment. He said he did not know, and that M handled that side of things. F said that M “always had problems with them” and “sort of dismisses them”. F said he was not sure whether GMXV still had one.
F was asked whether he had applied for and been granted access to GMXV’s NDIS “myplace” portal showing the details of his NDIS plan and funding. F answered “No”. He also indicated that he did not have any information relating to GMXV’s plan. He said that M was involved in respect of GMXV accessing supports under his plan. F said it had been going “fairly steady” for the last 12 months and that GMXV got the same support worker each time. F said it “sort of seems fairly permanent”. F said there had been times “between workers” when M had consulted with F as to what to do with GMXV and what his needs were.
The Tribunal asked F whether the support worker was assisting GMXV at times when he was at F’s house. F answered “No”. F explained that it was difficult to have a support worker come and spend time with GMXV at F’s house because he had converted the living room into a bedroom to accommodate both GMXV and F, so now the house is made up of two bedrooms and no living room. F said he was a bit embarrassed about that and did not “want workers around”. F said he had asked the NDIA whether they would help build a lounge room on the front of his house. F said the NDIA said they would only help with handrails and minor things like that and will not consider putting a lounge room on his house. F said that it was difficult to accommodate professionals “to come around that do stuff with GMXV”.
F said that GMXV needed other things like an exercise machine “and stuff like that” because he said GMXV is “starting to get overweight”. F said he is not doing enough exercise. F said when he took GMXV to the shops, he does not have the wheelchair and would prefer to see GMXV walking around rather than sitting in a wheelchair.
The Tribunal asked F whether there were any further community visits that GMXV was involved in where they are using support workers to help him undertake those visits. F answered “No”. The Tribunal asked F whether there were other things that he would like GMXV to be doing if he had support workers to assist him to do so. F said “Yes, I guess so. Like take him to the swimming pool, or something like that”. F said that GMXV used to love doing that and they used to go twice a week for three or four hours at a time, but now GMXV will not get out of the car when they go to the swimming pool.
F said they also used to go to the playground and for walks at the local botanical gardens. F said that, now, GMXV will not get out of the car. F said that GMXV had become really “lazy or complacent” since the age of about 15. F said that GMXV had an iPad and that like other kids, “he’s just permanently stuck on the iPad”. F said he will play a “little bit of a song” and play it over and over. F indicated he understood this to be “stimming behaviour”.
The Tribunal asked F whether there had been a behavioural specialist practitioner engaged to assist with behavioural management, noting that GMXV’s SOPS dated 17 November 2020 approved funding of $23,621 for a Level 2 behavioural support intervention package. F explained that there had “nearly” been such engagement, but that M may have had a conflict with them, and it did not go any further. F elaborated that this was over 12 months earlier and as they were coming from Suburb C, they were charging two or three hours for travel time which was “eating into the budget”. He said that M was unhappy about that and specifically, that they might spend one hour with GMXV and charge four hours for doing so. F said that M was “arguing with DHS that somebody be provided who was closer”.
When asked whether a behavioural support plan had been drawn up for GMXV in recent times, he said he was “not sure”.
F said he did not know who the plan manager was for GMXV, and that M handled all of that.
The Tribunal asked F which doctors were treating GMXV. He said, “That would be just our family GP that he and I go to”. When asked whether GMXV had a paediatrician, F said there was some discussion back and forth about that, but the end result was they were told the GMXV was too old for a paediatrician. F said GMXV was about 16 years old when they were trying to get a paediatrician. F said he was told that at 14, they “start dropping the paediatricians”. F said that GMXV always had a paediatrician when he was “a youngster”. F could not recall the doctor’s name.
When asked by the Tribunal if there had been any allied health professionals assisting GMXV, F said they had started with an occupational therapist (OT), but this therapy was stopped due to an issue with their rates. F said he could not remember GMXV having significant involvement with an OT. F said they had taken GMXV to a speech pathologist, but they had said they could not work with him because they had small offices and due to the “behavioural situation”. He said they were happy to liaise with his special development school which had OT and speech pathologists as part of their program. The speech pathologist told GMXV they would go to the school to work with him, but then he told F that they had good speech therapist at the school. F said that GMXV “definitely” received therapeutic support through his school.
F said he was aware that GMXV went to a masseuse in Suburb M but that he became difficult to manage in that environment. He said this was over one year ago.
F told the Tribunal he was unaware of any other supports being funded and provided to GMXV under his NDIS plan.
F was invited to address the Tribunal in relation to GMXV’s need for transport supports. F said that he would like to see M receive the assistance she needs for the times she has visits with GMXV. F said that the shops about three or four kilometres away and the shops in Suburb M are about 10 kilometres away. F said that he takes GMXV to the medical clinic. F said that the thing which had caused a lot of stress for M was that the transport funding did not include a mileage component, so that when the (support) workers submitted their invoices, F said, “a lot of it would be travel” and he did not think the invoices were paid because GMXV’s plan did not allow for mileage. F said this had caused M “a lot of grief”.
The Tribunal asked F whether he wanted to say anything about the request by M that the funding in GMXV’s plan be self-managed, as there was a reference to some of the supports being plan-managed. F answered “No”. The Tribunal asked F whether there were any issues he was aware of in terms of the way the plan was managed. F gave the following evidence:
F: Well, I've got a lot of confidence in M managing it. She seems to do all the research and know everything, what's going on. But it's a bit of a - but then she ends up in a lot of conflict with the service providers. So, it's - you know, on the one hand she manages it all really well, and then on the other hand it becomes a big stress for her. But I certainly support her in managing the plan.
TRIBUNAL: And that observation you made - so (indistinct) sort of probably important to distinguish between being involved in the discussions, or the plan review processes, which involves what's to be included in the plan, and the actual managing of the (indistinct) the plan?
F: The day-to-day management, yes.
TRIBUNAL: So processing all the invoices and all of that. Now, that's not happening - GMXV's mum is not doing that at the moment and has not done that since 17 November 2020. That's been managed by other people. Now, the plan manager was appointment by GMXV's mother - she informed the tribunal. So that's kind of the status of what's happening. Do you - did you wish to clarify your comments - are you talking about GMXV's mum being involved in the review processes, about what's included in GMXV's plan, or are you talking about all of it?
F: (Indistinct) and probably the day to day management of it as well.
TRIBUNAL: All right?
F: If that's what she wants. If she wants to manage it like that - I'd leave it to somebody else myself, but she always seems to want to, you know, be a part of everything.
TRIUNAL: Yes?
F: So it brings her satisfaction to be - to micromanage everything. And I'm a bit the opposite - I would let other people manage it and stand back a bit and try and lessen the stressors. But she - - -
TRIBUNAL: And just in terms of what's in the best interests of GMXV, what do you consider is in the best interests of GMXV, that in terms of the management of the plan? … and by that whether - Mr GMXV, do you think that there's any risks that present with changing the arrangements at the moment so that GMXV's mother manages the funding in the plan and the payment of invoices and engaging service providers, et cetera?
F: I'm happy for that to - for his mum to manage that.
TRIBUNAL: I see. But just to answer my question - - -?
F: I don't think (indistinct) - - -
TRIBUNAL: Yes, do you consider that that's in the best interests of GMXV?
F: Either way. Whether M manages it or whether an outside entity manages it. I'd be happy (indistinct) - - -
F: I see, and you aware of where GMXV's mother is at the moment?
F: Yes.
TRIBUNAL: Okay, all right. Okay, and so in those circumstances, if the tribunal - if the plan was changed so that GMXV's mother was managing it, and in light of GMXV's mother's present circumstances, what would happen then? Would you (indistinct) - - -?
F: No, I think (indistinct) - - -
TRIBUNAL: Would you step in to take over at times when GMXV's mother might be indisposed because of personal circumstances?
F: Yes. If I could manage - if it wasn't too difficult. If it's fairly straightforward, I can manage it, but if it's, you know, some difficult matter I'd probably be after advice from somebody.
TRIBUNAL: All right. Okay, look I'm getting to the end - I just want to check - I'm getting to the end, Mr GMXV, just to give you some comfort about that. I did have a question - are you aware of how much funding is being utilised out of GMXV's plan at the moment?
F: No.
TRIBUNAL: No, all right. Okay. All right - - -?
F: But that's only because I don't ask.
TRIBUNAL: Yes, all right. Okay?
F: I mean I'm aware he's got a package, and I believe most of the package goes on respite services, you know, and those access times that M have, I regard those as respite.
TRIBUNAL: So respite - you mean the cost of a support worker to take him to visit his mother - is that what you mean by respite services?
F: Yes.

The Tribunal asked F whether he wanted to say anything more about GMXV’s support needs at the present time. F said the only concerns he had regarding GMXV is his more long-term needs. F told the Tribunal that he had failing health and that he and M had been trying for quite a few years to get an undertaking that there would be a purpose-built place (as in accommodation) provided for GMXV. F said once GMXV turned 18 he could live there, and F would continue to manage him. F said that GMXV was 6 foot 2 inches tall now, was getting big and sometimes he got “a bit adamant about things”. F said that GMXV had become “a bit more… forceful” and when he wanted things, he would grab F and start dragging him around the house, wanting F to do various things. F told the Tribunal:
And he has some repetitive behaviours - every time we leave the house he drags me around - around the kitchen, you know, three or four times, and then out to the car, and then back inside again, walk around the kitchen, and then back out to the car. But he's sort of grabbing me and, you know, moving me about. And I just wonder how all that's going to pan out in the future.
…
You know, as I get weaker and he gets stronger, you know, what's going to happen. And - so what both M and I have been after is, you know, that he have his own place, you know, like with workers - so I don't know if that's something that we discuss with you at the AAT today, or whether that's more a, you know, more of a management plan.
The Tribunal indicated at the hearing that it was helpful for F to have raised those matters. The Tribunal acknowledged that GMXV was in a state of transition as, at the time of the hearing, he was about to turn 18.
Before the hearing, the Tribunal was made aware of the issues regarding transport supports and who was to manage the plan. M was invited to identify whether there were other supports she would like considered as part of this proceeding, but she indicated an inability to do so without assistance, on account of her mental health conditions.
Much of the evidence given by F at the hearing was heard by the NDIA and the Tribunal for the first time. Once F has crystalised his thinking about the accommodation supports he would like to request on behalf of GMXV, given his current transition upon leaving school and turning 18, it is open to F and/or M to request an unscheduled plan review on the basis of GMXV’s change of circumstances.
SUPPORTS FOR GMXV
Transport supports
Rules 5.1 and 5.2 of the Support Rules provide that a support will not be provided or funded under the NDIS if it relates to day-to-day living costs that are not attributable to a participant’s disability support needs. The Tribunal does not consider that this relates to the consideration of funding transport supports for GMXV as the Tribunal is satisfied on the evidence that GMXV is unable to safely drive a car or to catch public or private means of transport such as a taxi or hire car.
In written submissions lodged by M before the hearing, she contended as follows:
The only reason DHHF initially applied to the Children’s Court for a protection order was because I entered a short-term psychiatric facility 11 days after receiving GMXV’s first NDIS plan. The plan did not have transport funding and the NDIA refused to allow me to reallocate funding for this purpose even though at least four Agency staff I spoke with knew that I could not continue to care for GMXV in the family home without this funding or ability to flexibly use Core budget funds for this purpose. I am unable to drive because of my disabilities and had no means of transporting GMXV to school or other place without funds to pay for worker mileage. My son has approximately $20,000 of transport funding allocated per year in his Victoria government disability package that the NDIS replaced. A no disadvantage principle exists.
M also lodged with the Tribunal a one-page document which has a reference to the NDIS website and “November 2014” at the bottom of the document, which states as follows in relation to the “Principle of ‘no disadvantage’ and the NDIS”:
…
What is the principle of “no disadvantage”?
Governments made a commitment – through the Intergovernmental Agreement for the NDIS Launch (IGA) – that if you were receiving supports before becoming a participant in the NDIS you should not be disadvantages by your transition to the NDIS.
The commitment is that people who become participants in the NDIS should be able to achieve at least the same outcomes under the NDIS.
This does not mean that you will always have the same level of funding or supports provided in the same way. You will have access to reasonable and necessary support consistent with the National Disability Insurance Scheme 2013.
Where the NDIS does not fund a support you previously received under another program, the Agency will seek to identify alternative supports or refer you to other systems with a view to ensuring you are able to achieve substantially the same outcomes as a participant in the NDIS.
…
This statement makes it clear that the focus of this commitment provided by Government was on the outcomes and does not provide any commitment to a participant of the NDIS that they will receive the same types of support. There was insufficient evidence before the Tribunal to raise any concern that the Government has not honoured its commitment to GMXV under this principle. The NDIS Act requires the Tribunal to consider the matters under s 33(5) and s 34(1) of the NDIS Act when assessing whether funding for transport supports should be included in GMXV’s SOPS. The Tribunal will proceed on this basis.
The evidence given by F at the hearing, as outlined above, supports a finding that funding to assist GMXV with transportation is a type of support that would meet the requirements under s 34(1) of the NDIS Act. The question is what form this type of support should take and what level of transport supports is a “reasonable and necessary support” under s 34(1). The Tribunal considers that the provision of funding to GMXV to cover the mileage charged by his support workers (whether accompanied by M or not) is a cost-effective way of delivering a means of transportation to GMXV in a vehicle provided by his support workers. M is unable to transport GMXV herself to the shops as she does not drive. F already provides some informal support to GMXV by driving him to medical appointments as required. GMXV turned 18 this year and his independence should be encouraged and developed, within safe limits of course, and in a supervised manner which can be offered by his dedicated support worker. GMXV is unable to travel independently due to his disability.
The NDIA contends that the requested transport support would duplicate other supports because GMXV is able to use the school bus and that he also has access to transport related to accessing other supports within the Core and Capacity Building (CB) supports set out in Annexure 1 of the NDIA’s Statement of Facts, Issues and Contentions (at paragraph [5]). The Tribunal does not accept either of those contentions. There was insufficient evidence before the Tribunal to demonstrate that GMXV could safely catch the school bus independently and in fact, the evidence about his disability suggests otherwise. F also gave evidence at the hearing that the bus was not able to stop in front of his house, so GMXV would need to catch the bus from another location, and he expressed his concern about him doing so. The Tribunal also notes that GMXV is due to finish at the school this month. Further, the Tribunal notes that in an affidavit by the NDIA’s legal representative sworn on 28 March 2022 reference is made to the NDIS Pricing Arrangements and Price Limits which make provision for the ability of service providers (such a support worker) to be able to charge mileage in certain circumstances as outlined in paragraph [4] to [6] of this affidavit.[1] An assertion is made in this affidavit that GMXV’s plan enables flexibility, so he is able to use his core budget to pay for the mileage costs when driven around by a support worker in their personal vehicle. But this has not been M’s experience or so it would seem based on her emails lodged with the Tribunal ahead of the hearing and as confirmed by F’s evidence given at the hearing. At the hearing, the Tribunal requested that a breakdown of the inputs used to calculate the funding in GMXV’s SOPS be provided so the Tribunal could see whether any provision had been made for the payment of mileage. The breakdown provided by the NDIA’s legal representative, in her affidavit, did not provide sufficient enough detail in the breakdown to support a finding that the NDIA has already made provision for and included in GMXV’s plan funding for any amount of mileage. On this basis, the Tribunal rejects the NDIA’s contention that the transport supports would be a duplication of funding already provided for in GMXV’s plan.
[1] Directions were made at the hearing allowing F or M to lodge a reply to this submission and the further affidavit lodged by the NDIA on 28 March 2022 if they wished to do so. No such reply was received. The Tribunal also made a direction that either party or their representatives may write to the Tribunal to request that this matter be listed for a further short hearing for the purpose of addressing the further submissions and affidavit lodged in accordance with Direction 1, 2 and 3 above. No such request was made by either party.
F’s evidence indicates that, at a minimum, GMXV travels four times a week (that is, every Tuesday, Thursday, Saturday, and Sunday) either to M’s house and/or to the various shopping centres he visits with M. Based on the distances provided by F at the hearing, the Tribunal is satisfied that his support workers are likely to transport GMXV in their car for between 1,664km to 4,160km per year. Those figures are based on, according to F’s evidence, GMXV being transported on journeys of between 8 to 20km (depending upon which shopping centre is being attended), 4 times per week, for 52 weeks per year.
On top of this, the Tribunal considers that a further allowance should be made for GMXV to be transported by his support workers progressively over the next six months to other destinations in the community (with or without M), such as swimming pools and parks. The Transport Support will become important if behavioural support intervention, as contemplated under GMXV’s plan, is implemented, as it is hoped to improve GMXV’s behaviours and to address any current behavioural barriers to him accessing the community more broadly. To allow for this the Tribunal considers it appropriate to triple the distance of his current level of journeys and will take the upper end of the journey estimate referred to in the above paragraph. This means the Tribunal considers it appropriate to all for 12,480km of mileage to be charged by support workers to transport GMXV in their cars (Transport Support).
The Tribunal encourages F, alongside M, to actively pursue arrangements for GMXV to access the behaviour intervention support available to GMXV under his plan, to ensure GMXV is provided with this capacity building support without further delay as GMXV enters adulthood. Based on F’s reports and the evidence before the Tribunal, both of GMXV’s parents are supportive of GMXV having greater access to and involvement in the community. On this basis, the Tribunal is satisfied that the Transport Support is a reasonable and necessary support under s 34(1) of the NDIS Act, particularly given the following:
(a)under s 34(1)(a), the Tribunal finds that the Transport Support will assist GMXV to pursue his goals and aspirations. GMXV’s first goal in his plan is to “access the community and participate in activities of interest and improve his quality of life”;
(b)under s 34(1)(b), the Tribunal finds that this support will assist GMXV to undertake activities, so as to facilitate the participant's social and economic participation. Being transported by his social workers will enable him to access goods and services as he does when he attends shopping centres, and to increase his social involvement such as attending swimming pools, gardens, and other places of interest to GMXV;
(c)under s 34(1)(c), the Tribunal finds that the Transport Support represents value for money in that the costs of this support are reasonable, relative to the benefits achieved and the cost of alternative support. Neither party put evidence before the Tribunal as to the cost of alternative supports. This may be because GMXV is unable to travel independently, say by taxi or hire car. The only real option for him is to travel in a car with F or one of his support workers. For these reasons, the Tribunal is satisfied that the Transport Support represents value for money;
(d)under s 34(1)(d), the Tribunal is satisfied that the Transport Support will be, or is likely to be, effective and beneficial for GMXV, having regard to current good practice. F gave evidence that GMXV is “very good” when he travels with him in the car. F also gave evidence that GMXV has been taken by his support worker to the shops in accordance with the usual routine, even though M has been temporarily indisposed. The Tribunal infers from this that GMXV is able to travel satisfactorily in the car with his support worker, even when M is not with him. On this basis, the Tribunal finds that the Transport Support is effective and beneficial for GMXV and will lead to him having access to the community;
(e)under s 34(1)(e), the Tribunal finds that funding the Transport Support takes account of what it is reasonable to expect families, carers, informal networks, and the community to provide. F already transports GMXV to his medical appointments as required. The Tribunal does not consider it is reasonable to expect F to be involved in a greater level of transportation of GMXV than that, given he has now turned 18. It is not reasonable to expect M to transport GMXV because she does not drive, for reasons related to her mental health conditions; and
(f)under s 34(1)(d), the Tribunal considers that the Transport Support is most appropriately funded though the NDIS and not any other general service system. The NDIA did not contend that this support should be funded under any other general service system.
For those reasons, the Tribunal concludes that the Transport Support is a “reasonable and necessary support” because all of the criteria in s 34(1) are met.
How should the funding in GMXV’s plan be managed?
M has requested that the funding in GMXV’s plan be “self-managed”. Section 43 of the NDIS Act provides that a SOPS for a participant must give effect to a plan management request, being a request by the participant (or in this case, M on his behalf) that he manage the funding in his plan – per subsections (1) and (2). However, this is subject to subsection (3) which, in effect, provides that if s 44(1) applies, then the plan is to be managed by the Agency. Section 44(1) applies if the Tribunal is satisfied that the self-management of GMXV’s plan would “present an unreasonable risk” to him. Section 42 of the NDIS Act defined “managing the funding for supports” to include (among other things) purchasing the supports identified in the plan and managing the funding.
Rule 3.8 of the Plan Management Rules provides as follows:
Unreasonable risk in other cases
3.8     Otherwise, the CEO is to have regard to the following:
(a)   whether material harm, including material financial harm, to the participant could result if the participant were to manage the funding for supports to the extent proposed, taking into account the nature of the supports identified in the plan;
(b)        the vulnerability of the participant to:
(i)     physical, mental or financial harm; or
(ii)     exploitation; or
(iii)     undue influence;
(c)     the ability of the participant to make decisions;
(d)     the capacity of the participant to manage finances;
(e)whether a court or a tribunal has made an order under Commonwealth, State or Territory law under which the participant’s property (including finances) or affairs are to be managed, wholly or partly, by another person;
(f)     whether, and the extent to which, any risks could be mitigated by:
(i)     the participant’s informal support network; or
(ii)any safeguards or strategies the Agency could put in place through the participant’s plan.
3.9     The safeguards referred to in paragraph 3.8(f)(ii) could include, for example:
(a)     setting a shorter period before the participant’s plan is reviewed; or
(b)     setting out regular contacts between the Agency and the participant; or
(c)providing funding for supports (for example, budgeting training) that would assist the participant to manage their own plan.
The Tribunal notes that in GMXV’s plan dated 17 November 2020 (which was “auto-renewed”, as advised the NDIA), the various categories of funding are specified to be managed as follows:
(a)Core Supports of $141,385.28: plan-managed;
(b)Improved Life Choices (CB Choice & Control) $2,226.87: NDIA-managed;
(c)Improved Daily Living (CB Daily Activity) $15,519.20: plan-managed;
(d)Improved Relationships (CB Relationships) $23,621.52: NDIS-managed;
(e)Increased Social and Community Participation (CB Social Community Civic) $3,211.52: plan-managed;
(f)Support Coordination $19,054.00: NDIA-managed; and
(g)Assistive Technology $542: NDIA-managed.
The NDIA in its submission lodged with the Tribunal on 28 March 2022 contends that it would present an unreasonable risk to GMXV if the funding in his plan was “self-managed” and that if the Tribunal found as such, it is open to the Tribunal to determine which aspects of the plan should be plan-managed and which should be NDIA-managed.
To date, M has been GMXV’s contact person when it comes to interacting with the NDIA in relation to matters concerning his NDIS plan.[2] F has been largely disengaged with these matters and any planning review processes until recently, when the Tribunal invited him to attend the hearing of this application, once it came to the Tribunal’s attention that GMXV resides with F on a full-time basis. At the hearing, F seems content to allow M to have the role of being the contact person for GMXV regarding his NDIS plan. F said that she had consulted with him. F did not raise any issues about how M has performed in that role to date.
[2] Directions were made at the hearing allowing F or M to lodge a reply to this submission and the further affidavit lodged by the NDIA on 28 March 2022 if they wished to do so. No such reply was received. The Tribunal also made a direction that either party or their representatives may write to the Tribunal to request that this matter be listed for a further short hearing for the purpose of addressing the further submissions and affidavit lodged in accordance with Direction 1, 2 and 3 above. No such request was made by either party.
However, the Tribunal is most concerned about the fact that apart from core supports, arrangements have not yet been made for GMXV to receive a lot of the important capacity building supports under his plan, including the involvement of a behavioural support practitioner and the involvement of allied health therapists such as an OT and speech therapist. The Tribunal appreciates that the COVID-19 restrictions would have put a dampener on any initiatives taken to link GMXV to those supports before they were lifted. Even so, F’s evidence at the hearing about M’s history of having dismissed service providers when she was not happy with how their arrangements were structured, is reason for concern.
The Tribunal is satisfied that based on the evidence of the health professionals treating M and GMXV, as set out below in the following two paragraphs, and the Tribunal finds that M’s psychiatric conditions impair her mental health function and the way she interacts with others in the community and has served as a substantial barrier to GMXV engaging the service providers he needs, and purchasing the supports identified in his NDIS plan, to enable him to gain access to his disability supports funded under his NDIS plan. The Tribunal is particularly concerned that this barrier is preventing GMXV from receiving the capacity building supports he needs at a critical time in his development as he leaves school and transitions into adulthood. F gave evidence about how GMXV had become more forceful and adamant about things. F raised concerns about how he would manage this into the future. GMXV’s urgent need for appropriate behavioural support intervention and allied health service is self-evident.

The Tribunal notes the medical observations made by M’s treating general practitioner, Dr Z, in her letter dated 5 October 2021. Dr Z states as follows (among other things):
(a)the purpose of her letter was to provide additional context as to why M had been unable to complete NDIS plan proposals for herself and GMXV and had been unable to participate in the review process before this Tribunal;
(b)M has “baseline diagnoses including Borderline personality disorder, complex PTSD, severe anxiety and depression”;
(c)the main trigger for M’s “ongoing mental health issues” was GMXV’s plan being developed without her involvement and there was no allocation of funds for transport. This led to M having suicidal ideation and requiring admission to an inpatient psychiatric unit at a health centre for a mental health crisis. DHS became involved and GMXV was placed into emergency accommodation in July 2019. Litigation followed, during which M represented herself, which she found “exhausting and extremely distressing”; and
(d)“this whole process has been very traumatising” to M.
Further the Tribunal notes the medical observations of psychologist, Ms AK, in her letter dated 1 February 2021 lodged by M with the Tribunal in this matter, as follows:
…M has a recognised disability herself and has been struggling with the daily living tasks of life as well as the additional requirements of creating the requested NDIS draft plan documents. She has been presenting recently as more overwhelmed, stating her inability to cope, and distressed due to her frustration surrounding the barriers to producing the desired documents. M has attempted to provide the draft plan documents through seeking assistance from other service providers (support coordinators) to assist with the writing of the documents, but has failed to find a provider with the skills to interpret, condense, and appreciate the extensive complexity of history, disability impact, and service needs.
…
-    M has severe and complex mental health conditions/disability. Across the time I have had the opportunity to observe the family unit, M’s symptoms worsen and her functioning deteriorates when faced with mounting uncertainty and stress.
-    …
-    M also has multiple and complex psych-social barriers and stressors…
The Tribunal acknowledges that M would like the plan to specify that all funding under GMXV’s NDIS plan be “self-managed”. M is GMXV’s contact person in relation to his NDIS plan; so, if it is “self-managed” it would be M who will be purchasing supports and managing the funding. Based on the evidence of Dr Z and Ms AK outlined above, the Tribunal lacks confidence in the judgment of M to make decisions for GMXV about the funding or any other aspect of his NDIS plan that will serve his interests. The Tribunal finds that M does not have decision-making capacity to implement GMXV’s NDIS plan due to the severe impairment to her mental health function caused by her psychiatric conditions. Those conditions result in M being indisposed for discrete periods of times when admitted as an inpatient to a short-term psychiatric facility for treatment.
F expressed to the Tribunal at the hearing a preparedness to step in if M was to ever become unavailable, but the Tribunal is not certain about the strength of this commitment because F qualified it by saying he would do so, provided it was straightforward; and if it was not, he would need to seek advice. The Tribunal considers that F is well-meaning, and it is possible he may take a greater interest in GMXV’s affairs regarding his NDIS plan and supports in future but, until now, F has been mostly disengaged. F has had minimal involvement in respect of GMXV’s NDIS plan, despite GMXV living with him on a full-time basis.
In conclusion, the Tribunal considers that based on past history, the “self-management” of funding in GMXV’s plan, would present an unreasonable risk to GMXV. This might be a matter that could be reviewed subsequently by the NDIA, at a time when F has demonstrated a greater level of engagement with respect of GMXV’s plan and the supports he is receiving under them. There were some positive signs by F, when he gave evidence at the hearing, that he is headed in that direction; particularly now it seems that GMXV’s behaviours of concern are escalating. But the Tribunal’s impression is that F still has a long way to go.
The Tribunal is satisfied the M’s severe impairment to her mental health function is likely to endure, and the manifestations of this would present an unreasonable risk to GMXV, if M were permitted to the manage the funding under his plan if it was specified to be “self-managed”.
Despite M’s plan management request made on behalf of GMXV, the Tribunal considers it appropriate in all of these circumstances that s 44(3) of the NDIS Act applies, and that by operation of subsection (c), the funding in GMXV’s plan should be wholly Agency-managed.
CONCLUSION
The Tribunal sets aside the decision under review and remits this matter to the Respondent with directions that, within 14 days of the date of this decision, the Respondent is to facilitate the approval of a new statement of participants supports for the Applicant which:
(a)replicates all existing supports for GMXV on a pro rata basis;
(b)adds funding for the Transport Support (being funding to pay for 12,480km of mileage per annum to transport GMXV by his support workers in their cars);
(c)specifies that all funding under GMXV’s plan is to be Agency-managed.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker

....................[sgd]....................................................
Associate
Dated: 25 November 2022

Date of hearing:

Date of final submission:

17 March 2022

28 March 2022

Advocate for the Applicant: F, GMXV's father

Counsel for the Respondent: Ms Ruth Hamnett

Solicitors for the Respondent: Ms Peta Heffernan, Australian Government Solicitors

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Date of hearing: Date of final submission:	17 March 2022 28 March 2022
Advocate for the Applicant:	F, GMXV's father
Counsel for the Respondent:	Ms Ruth Hamnett
Solicitors for the Respondent:	Ms Peta Heffernan, Australian Government Solicitors