Green and National Disability Insurance Agency - [2022] AATA 2872

Green and National Disability Insurance Agency [2022] AATA 2872 (2 September 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/2258
Re:Mikala Green
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

Decision
Tribunal:Member I Thompson
Date:2 September 2022
Place:Adelaide

The decision under review is varied as follows:
1) funding for assistance with household tasks – house maintenance for two hours each week – In accordance with the current NDIS Pricing Arrangements and Price Limits Guide;
2) funding for assistance with household tasks – yard maintenance for three hours each month – In accordance with the current NDIS Pricing Arrangements and Price Limits.

..............[Sgnd].................................................
Member I Thompson
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – review of statement of participant supports – reasonable and necessary supports – request for assistance – with household tasks – house and yard maintenance – decision varied
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth)
CASES
McGarrigle v National Disability Insurance Agency [2017] FCA 309
National Disability Insurance Agency v WRMF [2020] FCAFC 79
George v Rockett (1990) 170 CLR 104
SECONDARY MATERIALS
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
REASONS FOR DECISION
Member I Thompson
2 September 2022
INTRODUCTION

The Applicant, Mikala Green, is a participant in the National Disability Insurance Scheme (“NDIS”), which is administered by the Respondent, the National Disability Insurance Agency (“the Agency”). Ms Green is 21 years old. She resides with her mother who is her NDIS plan nominee.
Ms Green’s NDIS plan[1] commenced on 17 December 2020 and had a plan review date set two years later, on 17 December 2022. A request was made for an internal review of the plan.
[1] Exhibit T9 p 86.
On 22 March 2021, the Agency provided written notification[2] of the outcome of the internal review rejecting requests for funding for domestic assistance and yard maintenance, funding for respite on Friday nights and a request for a plan period of 12 months instead of 24 months.
[2] Exhibit T2 p 37.
In the application[3] to the Tribunal, Ms Green’s mother submitted that the internal review decision was wrong, as the requested supports are reasonable and necessary, and a 12-month plan, in contrast to a 24-month plan, is more suitable due to potential changes in her daughter’s support needs.
[3] Exhibit T1, p 2, 14 April 2021.
The hearing was held on 23 & 25 May 2022. Ms Green attended the hearing in person and was represented by her mother. The Respondent was represented by Counsel, Mr Paul d’Assumpcao.
ISSUES
The outstanding requests and thus the matters for consideration in this review were requests for 2 hours per week of domestic support and 2 to 3 hours per month for yard and garden maintenance (initially requested as 3 hours per fortnight).
At the commencement of the hearing, the parties indicated that an agreement had been reached on some of the issues that were previously outstanding. Those issues concerned funding for additional support worker hours, fortnightly occupational therapy, an increase of support coordination funding, and funding for respite care on alternate Fridays. Additional funding for supported employment to enable Ms Green to work five days per week, having previously worked four days per week, was also confirmed after further discussions, together with adjustment to the plan review date.
The matters which were agreed and were recorded in a joint request for a remittal, which were encapsulated in an order on 5 July 2022 pursuant to s 42D of the Administrative Appeals Act 1975 (Cth).
CONTENTIONS
Counsel for the Agency provided a statement of facts, issues, and contentions, dated 24 November 2021, prior to the hearing. The main points of contention included the following:
·a lack of information available to the Agency about the number of hours of domestic assistance and yard maintenance that were sought;
·a lack of detail about the suggested need for assistance inside and outside the house;
·evidence available at that time about Ms Green’s capacity to carry out domestic work and yard maintenance was unclear;
·whether the treating specialists recommended the supports and if or how those supports are related to Ms Green’s disability, and why the supports are not more appropriately provided through informal supports;
·insufficient evidence to ascertain why Ms Green could not carry out the necessary domestic tasks and yard maintenance while supported by support workers; and
·there was insufficient evidence to conclude that the requested supports are reasonable and necessary, and to determine the way in which the requested supports would meet the criteria in s 34(1) of the NDIS Act.
In response, Ms Green’s mother provided a detailed statement of facts, issues and contentions which covered the matters which were in dispute at that time. The submission included details about the nature of her work and her working hours. In the context of Ms Green’s disability, her mother wrote:
Mikala has the basic right to live in a clean and safe environment. Due to Mikala’s disabilities, she does not learn in 5 minutes like we do. It takes years for her to learn the most basic of skills e.g tying her shoelaces… Mikala tries her best to help with the chores but isn’t up to the correct standard as yet. Another thing that takes time for her to learn. The yard duties I do are too unsafe for her to do at this stage… she is a special needs person who requires help or someone else to do on her behalf… It is unsafe for Mikala to use a lawnmower or a whipper snipper let alone use poisons. It is too dangerous.[4]
[4] Applicant's Statement of Facts, Issues and Contentions at [16-20].
The written submission included comments about Ms Green’s unsafe behaviours, limited understanding and short attention span. Fundamental to the submission is the theme within it about patiently enhancing Ms Green’s independence, her ability to learn and optimising her right to exercise choices in the best way possible. Her mother commented:
All I am trying to do is ensure Mikala’s independence and help her to learn the basics in life so that she can look after herself and much as she humanly can to the best of her ability and be the best person she can be.[5]
[5] Ibid [28].
A short adjournment was granted after the completion of evidence and oral submissions to enable counsel for the respondent, at his request, to provide submissions in writing about the interpretation of s34(1)(e) of the NDIS Act regarding the question of what is reasonable to expect that families, carers, informal networks and the community can provide in the context of determining appropriate funding or provision of support in a statement of participant supports. That submission raised the question of whether an objective standard or expectation is called for.
Subsequently, Ms Green’s mother provided written closing submissions, which were divided into three sections highlighting the evidence about domestic assistance, yard maintenance and the exigencies of “ordinary life”. The closing submissions of both parties are considered in more detail below.
LEGISLATION
Section 3 of the NDIS Act sets out the objects of the NDIS Act. In giving effect to those objects, or performing functions and exercising powers under the legislation, regard must be had to the need to ensure the financial sustainability of the NDIS particularly ss 3(3)(b) and 4(17). General principles guiding actions under the NDIS Act are set out in s 4.
Not every support that a participant requests will be provided or funded through the NDIS. Before specifying in a statement of participant supports the reasonable and necessary supports that will be funded, the CEO of the Agency must be satisfied of all of the criteria in s 34(1) of the NDIS Act in relation to each support. If one of the requirements in ss 34(1)(a)–(f) is not satisfied, then the particular item is not a reasonable and necessary support. Section 34(1) must be read in conformity with the purposes and objects of the Act
In McGarrigle v National Disability Insurance Agency, the term “support” is described by the Federal Court, per Mortimer J, as “a practical description of the means by which a person with disability is assisted”. [6] In McGarrigle, Mortimer J stated with respect to the question of whether a support is reasonable and necessary:
Whether a support is ‘reasonable’ requires a different assessment to whether a support is ‘necessary. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word ‘reasonable’ would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase ‘reasonable and necessary supports.[7]
[6] [2017] FCA 306 at [88].
[7] Ibid at [91].
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (“the Support Rules”) deal with the assessment and determination of “reasonable and necessary supports” that will be funded under the NDIS. The Support Rules form part of the legislation.
The NDIS Operational Guideline, “Planning” (“the Planning Guideline”)[8] provides information about the preparation and review of a participant’s plan.
[8] T15, p 72.
NDIS PLAN
Ms Green’s NDIS plan included short-term goals to allow her to develop more independence with self-care tasks and daily life as well as the reduction of unsafe behaviours at home or in public. Medium-term goals include increasing social skills and social and community participation, improving speech and communication, and support to sustain informal caring arrangements. A medium-term goal to transition from school to work experience was already achieved, as she was working four days per week for an employer for people with disability. Her NDIS plan provided for support coordination to assist with arrangements with service providers.
A recent functional assessment report[9] included background information about Ms Green’s impairments, namely intellectual disability, autism spectrum disorder and attention deficit hyperactivity disorder. It was noted that she lives with her mother, who is her primary caregiver, and both intend to live together for the foreseeable future. Ms Green’s mother works as a waste removalist three days per week, with additional on-call shifts. Ms Green visits her father and stays with him fortnightly from 3 PM Friday to 12 PM Sunday.
[9] Exhibit A.
Under a current order[10] made by the South Australian Civil and Administrative Tribunal (“SACAT”), Ms Green’s mother is appointed full administrator of the estate of her daughter. SACAT did not make a guardianship order, finding instead that the current informal arrangements are appropriate.
[10] Exhibit T 1B, p 15
In addition to recording information about her goals and her employment, Ms Green’s NDIS plan mentions her recreational activities, which include participation in Special Olympics activities, and her interests in cooking and camping.
EVIDENCE
Evidence of Ms Green’s mother
Ms Green resides with her mother in her mother’s house on the outskirts of Adelaide’s northern suburbs. Her mother described the house as old, formerly Housing Trust stock, quite small with three bedrooms and one bathroom. However, the block of land on which the house was built is relatively large, occupying about 875 sqm.
Ms Green has worked with a supported employment service for four days per week since 2019 as a cleaner with a small team. Arrangements were confirmed during the hearing for the work to be transitioned to full-time, five days per week. Ms Green was present throughout the hearing, and indicated that she likes her work immensely, which was confirmed by her mother at the hearing. Away from work, she stays with her father at his house fortnightly on Friday from late afternoon up to midday on Sunday. Ms Green is actively involved in sport and recreation through Special Olympics, tenpin bowling and Auskiwi Adventures monthly camps and respite. From all accounts, she thoroughly enjoys those activities. It was also indicated in her NDIS plan and confirmed in evidence that she enjoys cooking, camping and riding on motorbikes with her mother.
Ms Green’s mother gave evidence about her employment on a casual basis from November 2020 as a driver for a waste and recycling firm. She loves the work. She drives a waste truck on a pre-determined route mainly around the city and inner northern metropolitan area. She has fixed shifts on Tuesday, Thursday and Saturday. She is on-call, when needed. Her employer runs a small firm and additional shifts are frequent. Generally, she will have some advance notice of the additional shifts if they are to cover for a colleague on pre-arranged leave. However, she receives little notice in advance if she covers for a colleague who is ill. She described one period when she worked for 8 weeks effectively full-time. The amount of notice which she gets for additional shifts is important because she needs to arrange care for her daughter for those periods. That is not always straightforward. The majority of her work is during the day; however, it also encompasses duties at night and in the early hours of the morning.
Fixed and NDIS-funded routines during the week provide for a carer who assists Ms Green on some mornings to get ready for work and accompany her to work. This carer is well known to the family and clearly has a sound relationship with them.
The yard and garden at the family home comprise lawn, fruit trees, a vegetable patch, strawberry patch and a shed. Ms Green’s mother mows the lawn, tidies up with a whipper snipper, looks after the garden, attends to the vegetable patch and fruit trees and tries to keep the exterior in good order. However, it is difficult to keep up as a single parent and family provider through juggling her commitments at work, maintaining the house, looking after the garden and, first and foremost, caring for her daughter. Her tasks include administrative work on behalf of her daughter as the plan nominee in the NDIS and as her administrator under the SACAT order.
When they are at home together, Ms Green chooses to be alongside her mother at all times, in effect as a shadow. Ms Green does not seek solitude. She does not seek time away on a computer, on social media, watching TV or in other ways. On the contrary, she seeks and requires consistent attention and engagement. She is physically alongside her mother whenever they are in the same vicinity during domestic work inside the house and while her mother is trying to do the gardening.
Allied health and psychiatric evidence
In correspondence dated 11 September 2015[11] and 9 October 2015,[12] a consultant psychiatrist, Dr Curran, confirmed Ms Green’s diagnoses of intellectual delay, autism spectrum disorder and attention deficit hyperactivity disorder, together with problems with sensory issues.
[11] T1D, p 19.
[12] T1C, p 17.
Documentary evidence provided to the Tribunal included various allied health reports. They provide significant information about the history and impact of Ms Green’s impairments, which are relevant to the question of the nature and extent of the supports in question.
A report following an assessment on 9 June 2021 by an occupational therapist, Ms McLeod,[13] noted that Ms Green has a primary diagnosis of intellectual disability with consequential difficulties and safety concerns with activities of daily living. Primary areas of concern which require support were summarised in the report, with examples provided, in categories of Ms Green’s reduced attention and awareness of safety, risk of vulnerability and difficulties reacting and responding in emergencies. The report noted that Ms Green is at risk if left alone; she requires “constant supervision and support to maintain her safety and assist her to problem solve, whilst also encouraging her development of these skills”.
[13] ST2, p 192.
Ms Green received extensive assistance from a speech pathologist, Ms Marin, commencing in 2018. Ms Marin provided a written report on 6 August 2021,[14] which included results of assessments indicating that Ms Green has a language disorder which is characterised by severe delays in both expressive language skills and receptive language skills. With a diagnosis of autism spectrum disorder, Ms Green has delays and difficulties in social development and behaviour, as noted in the report.
[14] ST5, p 202.
Issues of dependency are not recent. For example, in a progress report when Ms Green was 17 years old, an occupational therapist confirmed that she could not be left at home on her own and lacked independence in a range of everyday activities, such as showering, washing her hair, cooking and catching a bus, in addition to requiring continence products.[15] At that time Ms Green was preparing to transition from school by the end of 2019 and commencing work at the start of 2020.
[15] T3, p 43, progress report by occupational therapist, Ms Vines.
A current functional assessment report,[16] dated 21 April 2022, was completed by a social worker/specialist support coordinator, Ms Eming. This assessment indicates that Ms Green has considerable difficulties and functions in the extremely low range in reading and writing, making independent choices and self-control, interacting socially, undertaking tasks inside the home, including cleaning, food preparation, performing chores and taking care of personal possessions. She has developed some independent living skills, such as getting herself food and drinks, however she is unable to cook simple meals. The functional assessments included findings that she cannot be left alone and requires 24 hours of support per day; however, she follows routine and rules when she is supported by workers in places that are known to her, including at her workplace. The assessment found that she functions in the extremely low range with self-care activities, such as eating, dressing and taking care of personal hygiene.
[16] Exhibit A.
CONSIDERATION
The Tribunal finds that the evidence which Ms Green’s mother gave was truthful and reliable. The Tribunal accepts the evidence which she gave about her family life, work, routines, activities and, in particular, the evidence about her responsibilities and care, and her concern and devotion to her daughter.
Paragraph 7.1 in the Planning Guideline highlights the importance of understanding the link between a participant’s statement of goals and aspirations in an NDIS plan and the statement of participant supports. The participant’s statement of goals “provides the important foundation for the subsequent selection of supports.”[17]
[17] T12 p 122.
In his closing submissions, Counsel for the Agency took a constructive, balanced approach to the issues which face this family, and he did not seek to minimise the evidence about pressure and difficulty with which they have to contend. In urging the Tribunal to address the evidence in the context of the requirements of the NDIS Act and the Support Rules, he submitted that the evidence demonstrates that Ms Green’s mother attends successfully to the management of domestic tasks and garden maintenance. He suggested that the domestic work involved mainly vacuuming, mopping, and cleaning the bathroom, in a dwelling of modest size. It is set on a block of some 875 sqm, which includes lawn, a herb garden, vegetable patch and some fruit trees. If gardening assistance was provided of 2 to 3 hours per month, it would include, in likelihood, tasks such as lawn mowing, trimming, spraying and pruning. Counsel submitted that Ms Green’s mother attends to these tasks, and if it is not always to the standard that she would like and may involve some stress, nonetheless the practicality is that she carries out the work satisfactorily. In the end, the work gets done sufficiently well both in the house and in the garden.

Before proceeding further, it is helpful to note comments about reasonable and necessary supports made by the Full Court of the Federal Court in National Disability Insurance Agency v WRMF:[18]
... there is no doubt that the contextual use of the phrase [‘reasonable and necessary supports’] in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies — by reference to the context, objects and guiding principles of the Act and the facts of the case — the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person’s impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.
Whether the support will assist the participant to pursue the goals, objectives and aspirations in the participant’s statement of goals and aspirations: s 34(1)(a) of the NDIS Act
[18] [2020] FCAFC 79 at [151]
Ms Green’s mother appropriately pointed out in her written closing submissions:[19]
A typical 21 year old can engage in study, working, looking to move out of home for to live with friends or by themselves. An ordinary 21-year-old would be expected to contribute to the household financially, domestically and socially.
[19] Applicant's closing submissions, para 1 (f).
By way of contrast, she commented also that her daughter requires structure, routines and boundary setting typical for people with ASD and ADHD with reduced attention span and impaired functional capacity. Thus:
Compare this to an ordinary 21 year old that does not have these issues.[20]
[20] Ibid, para 1 (b).
The critical point is whether or not the supports will assist in the pursuit of the goals, objectives and aspirations. The test is not whether the support will ensure or guarantee the achievement of the goals. Ms Green’s short-term goals include developing more independence with self-care tasks and daily life, together with reducing her unsafe behaviours at home (or in public). The Tribunal is satisfied that the requested supports would assist in pursuit of those goals, objectives and aspirations. Ms Green’s NDIS plan provides that her mother and support workers would play a role in achieving the goals. It follows that funding for domestic assistance and yard maintenance would provide additional opportunity and flexibility for Ms Green’s mother and support workers, individually and potentially in collaboration, to address those issues with her. The criterion in s 34(1)(a) is met.
Whether the support will assist the participant to undertake activities to facilitate the participant’s social and economic participation: s 34(1)(b) of the NDIS Act
One of the medium- or long-term goals in Ms Green’s NDIS plan is to increase her social skills, develop friendships and increase her social and community participation. Provision of the supports in household work and yard maintenance may assist in the development of her observation and understanding of the breakdown of tasks and ways of carrying them out. This type of assistance should be of benefit to her in understanding and undertaking similar types of work in her paid employment, while also bearing upon aspects of her relationships with colleagues at work. Progress that occurs incrementally in aspects of social skills and practical skills should assist in her social and economic participation. This requirement is met.
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: s 34(1)(c) of the NDIS Act
Rule 3.1 of the Support Rules sets out the matters which must be taken into consideration. Ms Green’s mother contended that the average costs of the requested cleaning and yard maintenance would be less than other forms of support and assistance to enhance her daughter’s skills in these activities and tasks. Another form of support could include provision of assistance and guidance by a support worker to assist Ms Green in domestic tasks. However, the evidence about such an option is not persuasive. Potentially, there could be consideration in future plan discussions about additional occupational therapy directed towards analysis and breakdown of domestic tasks and monitored development of practical, household skills. In the meantime, and in any event, Ms Green is entitled to a clean and safe home. The Tribunal does not consider that there is satisfactory evidence of comparable, beneficial but substantially cheaper supports.
Whether the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice: s 34(1)(d) of the NDIS Act
Rule 3.2 of the Support Rules outlines matters which the decision-maker must consider. The Tribunal places considerable weight on the evidence of Ms Green’s mother. That evidence, in conjunction with the evidence from the allied health practitioners, satisfies the Tribunal that provision of domestic assistance and yard maintenance will be effective and beneficial for Ms Green.
Whether 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: s 34(1)(e) of the NDIS Act
In her closing submissions, Ms Green’s mother wrote that, as her daughter’s primary carer:
I have struggled to cope with the relentless questions, risky behaviours, running a household, shop, cook, clean and attend to my own work.[21]
[21] Applicant's closing submissions, para 1 (d).
46.Ms Green mother’s work commitments and schedule have been described above. The evidence is clear and uncontested about her enthusiasm and dedication for her work, her commitment to the job that she enjoys and her loyalty to her employer and her colleagues. She has financial responsibilities for the maintenance and upkeep of her house and garden and she exercises those responsibilities in good faith and diligence. She is committed to ensuring the best life possible for her daughter. The care and support which she provides is beyond question. She engaged with the Agency to negotiate a package of funded supports which reflect her daughter’s goals and objectives in a plan that is, in effect, a package that reflects and addresses a multiplicity of support needs and requirements. There is no doubt that at this stage of their respective lives, both Ms Green and her daughter want to continue to reside together in their family home. There is no plan by either one of them to live independently of the other. Particularly in view of Ms Green’s stated wish to be at home with her mother, the idea of supported independent living is not a preferred option at this time.
Ms Eming’s functional assessment report confirmed that Ms Green is not able to contribute to household tasks in the way that might be reasonably expected of a typical young adult. She requires prompting to commence a task such as sweeping or mopping and supervision or support to try to complete it. The report confirms that she is unable to perform yard and garden maintenance and it is not reasonable to expect her to use garden machinery and equipment. The assessment emphasises dangers to her in environmental matters, social relationships and community participation, and in health, with an overarching priority that she receives adequate and consistent support for all aspects of her well-being.
Counsel for the Agency submitted that an objective test should be applied to the question of what it is reasonable to expect families, carers, informal networks and the community to provide. On a proper construction of s 34(1)(e) of the NDIS Act, it was submitted that funding for the support takes into account three elements: first, what it is reasonable to expect; second, of whom there is that expectation; and third, what it is that is provided. The underlying context or at least one of them is that the NDIS is not intended or necessarily required to cover the costs of all the supports that a participant requests. That proposition is not controversial, given that there are at least three different components to the NDIS, as the simplified outline in s 8 of the NDIS Act illustrates. In addition to individual plans for participants, those components have a wide application that includes broader service delivery through coordination, strategic or referral services and funding for entities.
In relation to individual participant plans, s 31 of the NDIS Act sets out principles to be taken into account as far as practicable. The planning principles require consideration of the 12 matters that are listed in s 31. In consideration of carer and community supports, those principles address important matters such as strengthening and building capacity of families and carers (s 31(da)), the availability of informal supports and support services in the community (s 31(e)) and supporting communities to respond to the individual goals and the needs of participants (s31(f)).
Counsel for the Agency submitted that the expression “reasonable to expect” in s34(1)(e), indicates an objective requirement, not one that is subjective, and in that regard, he sought to draw assistance from comments by the High Court about “reasonable grounds”:
…when a statute prescribes that there must be “reasonable grounds” for a state of mind including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[22]
[22] George v Rockett (1990) 170 C LR 104, 112.
While acknowledging that “reasonable belief” is not precisely the same as “reasonable expectation”, Counsel submitted that each require an objective assessment of the circumstances, and therefore the facts of the case must be looked at objectively and as a whole.
Support Rule 3.4 sets out provisions regarding reasonable family, carer and other support in relation to participants who are children, and participants who are adults.
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, Support Rule 3.4 requires the CEO (and in this instance, the Tribunal) to consider specific matters for participants other than children.
Support Rule 3.4 (b) (i) requires consideration of:
the extent of any risks to the well-being of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community.
Ms Green relies heavily on the support and care of her mother as primary carer. She maintains regular contact with her father. Her informal supports are consistent and considerable. The outstanding issues, by contrast, had been the extent of any necessary and additional formal supports, in particular when Ms Green’s mother is away at work, the nature and level of therapeutic supports to assist with developmental issues, and the current question about formal supports for domestic and yard maintenance. Any risk to Ms Green from reliance on family members relates to the sustained capacity of her mother to undertake myriad tasks and maintain stress within manageable levels.
Support Rule 3.4 (b)(ii)(A) requires consideration of:
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.
Ms Green’s mother, as sole carer, has primary responsibility for the care and support of her daughter. Ms Green stays with her father at his house fortnightly from 3 PM Friday to midday on Sunday. Her grandparents reside in a regional city more than 100 km away. They have ageing and health issues and are not able to provide or to contribute towards any practical support for her. The capacity which Ms Green’s mother has to provide domestic assistance and yard maintenance is constrained by limitations on her availability through her employment, the requirements of providing intensive, continuous support and care to her daughter when they are together, the administrative tasks which she undertakes pursuant to the SACAT order and her role as NDIS plan nominee, and the absence of family and community supports to sustain her in her caring role.
Support Rule 3.4 (b) (ii) (B) requires consideration of:
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.
It is clear from all of the evidence that Ms Green’s mother is practical and hard-working and does her best to undertake domestic activities and maintain the yard and garden to high standards. She is concerned that she cannot complete domestic tasks in a timely way and to her preferred standards despite compromises, workarounds and supports already in place.
It is necessary to keep in mind the continuous level of support that is required of Ms Green’s mother and the high degree of intensity of that support. The support is out of the ordinary, the demand for it is constant when the two are together, and the intensity has not diminished over the years from adolescence and into Ms Green’s adulthood.
Support Rule 3.4(ii)(C) follows logically from the previous sub-rule and requires consideration of, relevantly:
the extent of any risks to the long-term wellbeing of any of the family members or carers…
Ms Eming’s assessment raised the problem of “caregiver burnout”, which she described in this way:[23]
[23] Exhibit A, p 9.
… carer burnout occurs when the paid carer becomes overwhelmed from the emotional, physical and mental needs of providing constant care. Carer burnout can cause unsafe environment for both the carer and person with a disability.
Ms Eming commented in the report that Ms Green’s main source of “emotional and social connection comes from her mother.” She added that Ms Green expressed her wish to remain living at home as she has a safe relationship with her mother and she “struggles’ when she has to leave her mother; for example, to go to work. Ms Eming applied a screening instrument known as the caregiver strain index to identify strain on carers, their capacity and areas where support may assist. Applying that index led to her conclusion that Ms Green’s mother is at “high risk of carer burnout”.
Support Rule 3.4(b)(iii) requires consideration of the extent to which informal supports contribute to or reduce an NDIS participant’s independence. The evidence indicates that Ms Green has full-time work and recreational pursuits which she enjoys. Her informal supports do not appear to reduce or adversely affect her level of independence and other positive outcomes in her life. Putting the requested supports to one side for the moment, the suite of goals in Ms Green’s NDIS plan are now better aligned with the range of supports that she sought and that were subsequently agreed at the beginning of the hearing.
Finally, Support Rule 3.4(c) requires consideration for all NDIS participants of:
… the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.
The evidence indicates that Ms Green is familiar with her local environment. The family home is reasonably close to her workplace. Her father resides in the local area. She has recreational and sporting activities which form part of her community networks. Her mother is engaged appropriately in identifying, monitoring, and encouraging informal arrangements at the local level.
In the present case, in consideration of the requirements of s 34(1)(e) of the NDIS Act and the Support Rules, an objective assessment of the evidence leads the Tribunal to determine that the requested supports meet the criteria. That is, funding for provision of the supports takes into account the role of Ms Green’s mother and what is reasonable to expect of her. She endeavours to provide a safe and homely environment indoors, in accordance with generally understood and prevailing standards of cleanliness and safety. Similarly, with outdoor maintenance, she tries within her capacity to keep it under reasonable control, ensuring that the yard is reasonably tidy, and the garden is not overgrown and unsafe for her daughter. Inevitably, standards will differ to various degrees between households. Viewed objectively, Ms Green’s mother provides the level of support and care that can reasonably and appropriately be expected, taking into account her age, capacity, commitments and the intensity and continuity of effort required in providing the support, in the unique circumstances of her family, of cleanliness and safety.
The support is most appropriately funded or provided through the NDIS 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 the reasonable adjustments required under a law dealing with discrimination on the basis of disability: s 34(1)(f) of the NDIS Act
The test under s 34(1)(f) is whether the support is most appropriately funded through the NDIS and it refers to the appropriateness of the source of funding and not to the support itself. The Tribunal is satisfied that the supports requested in this case satisfy the other requirements for funding and it follows that the requirements of s 34(1)(f) are met.
Part 5 of the Support Rules includes general criteria for supports and specifies the supports that will not be funded or provided. Under Rule 5.1(a) support will not be provided or funded under the NDIS if it is not related to the participant’s disability. For the reasons already provided, the Tribunal is satisfied that the requested supports are related to Ms Green’s disability. So too, a support will not be provided or funded under the NDIS if it relates to day-to-day living costs, such as rent, groceries and utility fees that are not attributable to the disability support needs (Rule 5.1(d)). Arguably, the requested supports could be construed as relating to daily living costs. However, as they are supports that are attributable to Ms Green’s disability support needs, they are not excluded by the Rule. The Tribunal is satisfied that other elements of Support Rule 5.1 concerning the likelihood of causing harm or posing a risk (Rule 5.1(b)), and duplication of other supports (Rule 5.1(c)) do not arise.
In reaching the correct or preferable decision in this review, the Tribunal is mindful of the need to ensure the financial sustainability of the NDIS. There is no evidence to suggest that the requested supports have the potential to impair the financial sustainability of the NDIS (s 3(3)(b) & s 4(17)(b) NDIS Act). They would be funded at NDIS rates for specified periods.
In reaching its decision the Tribunal has had regard to the principles relating to participants’ plans, which are set out in s 31 of the NDIS Act. They include requirements, among others, that as far as reasonably practicable plans should be individualised, directed by the participant and, where relevant, consider and respect the role of families and carers who are significant in the life of the participant. They should provide for tailored and flexible responses to the individual goals and the needs of the participant. Important factors in Ms Green’s individual circumstances include her disability attributable to intellectual impairment, the choice of where and with whom she lives, her functional capacities in activities of daily living, the role of her mother in the support that she provides; all in the context of, as pointed out in WRMF:
the links between a person’s impairment and their full participation in the community.[24]
[24] [2020] FCAFC 79 at [151].
72.It is important to appreciate that funding for domestic assistance will be a support that is for Ms Green. It is a support that is provided and funded in reflection of her needs. Equally, funding for yard maintenance is in the same category of being a support in response to her circumstances. They are supports which are in accord with the principle in s 31(da) of the NDIS Act to: “strengthen and build the capacity of families and carers to support the participant in adult life.” They are supports which reflect the fact that mother and adult daughter freely choose to live together. Ms Green is entitled to a suitable level of support which helps to maintain tidiness and cleanliness in her house and some support outdoors to maintain and manage the garden. She did not choose to acquire the house and garden in question. However, she has chosen to make her life there and in the surrounding community, and she is entitled to “tailored and flexible responses”[25] to her goals as a participant in the NDIS.
[25] S 31 (j) NDIS Act.

That leaves the question of the frequency of the supports. Ms Eming[26] recommended domestic cleaning and suggested two hours per week, together with a suggestion for two to three hours per fortnight for yard maintenance. Ms Green’s mother’s request is for cleaning two hours weekly and yard maintenance of two to three hours monthly. For domestic cleaning, the Tribunal takes into account the evidence about the size of the house, the capacity and availability of Ms Green’s mother to attend to those tasks regularly, and the unique demands arising out of her caring role. At this stage, it is likely that weekly cleaning is a more practical option than fortnightly cleaning. The evidence about yard maintenance does not strongly favour fortnightly over monthly. At this point in the family life, it would be reasonable and necessary to provide funded support for two hours per week for cleaning and three hours per month for yard maintenance. The combination of other supports that were agreed between the parties, together with the supports approved by this decision, may lead to a time when Ms Green has greater independence in initiating and successfully completing various household and garden tasks. Developmental gains and their effect on future participant plans will be matters for consideration in the scheduled reviews of those plans.
[26] Exhibit A.
The Tribunal is satisfied that the requested supports are most appropriately funded through the NDIS. Accordingly, this requirement is met.
CONCLUSION
For the reasons set out above, the Tribunal is satisfied that funding of the supports for Ms Green meets the requirements of a reasonable and necessary support within the meaning of s 34(1) and related provisions of the NDIS Act.
DECISION
The decision under review is varied as follows:
1) funding for assistance with household tasks – house maintenance for two hours each week – In accordance with the current NDIS Pricing Arrangements and Price Limits Guide;
2) funding for assistance with household tasks – yard maintenance for three hours each month – In accordance with the current NDIS Pricing Arrangements and Price Limits.

I certify that the preceding 76 [seventy-six] paragraphs are a true copy of the reasons for the decision herein of Member I Thompson

.........[Sgnd]............

Associate
Dated: 2 September 2022