Hiney and National Disability Insurance Agency - [2019] AATA 3643

Hiney and National Disability Insurance Agency [2019] AATA 3643 (10 September 2019)
Division:National Disability Insurance Scheme Division
File Number: 2019/1139
Re:Andrew Hiney
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member I Thompson
Date:10 September 2019
Place:Adelaide

The Tribunal varies in part the decision under review to extend the review date of the Applicant’s National Disability Insurance Scheme Plan to 28 February 2020.
......................[sgnd].......................................
Member I Thompson
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – Review of statement of participant supports – reasonable and necessary supports – applicant sought review of statement of participant supports to allow for access to preferred prosthetist – no alteration to existing funding supports necessary following alternative transition funding by another agency – plan review date – statement of participant supports varied to change plan’s review date – decision under review varied.
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Cases
McGarrigle v National Disability Insurance Agency [2017] FCA 309
Millburn v National Disability Insurance Agency [2018] AATA 4928
Williamson v National Disability Insurance Agency [2019] AATA 2944
Secondary Materials
NDIA Planning Operational Guidelines
NDIA Assistive Technology and Consumables Guide
REASONS FOR DECISION
Member I Thompson
10 September 2019
INTRODUCTION

The Applicant, Andrew Hiney, has been a participant in the National Disability Insurance Scheme (NDIS) since 19 December 2017. He has one NDIS Plan which was approved on 1 May 2018. The plan has a review date of 1 May 2019.
Mr Hiney’s right leg was amputated below the knee in 1987. Subsequently he has had operations on both knees. In 2018 Mr Hiney needed a new prosthesis. He was concerned that his NDIS Plan did not give him approval to source a properly fitting prosthesis from his provider of choice. He was also concerned that the plan was not sufficient to meet his travel and accommodation expenses to access this provider, whose business is located in southern Queensland.
Because of the concerns which he held, Mr Hiney requested the Respondent, the National Disability Insurance Agency (NDIA) to conduct an internal review of its decision to approve the plan. On 4 February 2019 the NDIA confirmed its initial decision to approve the statement of participant supports as set out in Mr Hiney’s NDIS Plan.
Subsequently Mr Hiney sought review by this Tribunal, and in his application, he claimed in part that “the decision by the NDIA to deny him access to his provider of choice is clearly denying his right to access to a service provider who can meet his reasonable and necessary support requirements and is seriously limiting his ability to be independent in the community to the fullest extent possible.”[1]
[1] Exhibit 1, T1/3.
The hearing took place on 15 August 2019. Mr Hiney attended the hearing in person with the support of his wife. Mr Herscovitch represented the NDIA.
Mr Hiney is 49 years of age. He resides with his wife at Millicent in the south-east of South Australia .Mr Hiney gave evidence on oath and called one witness, Ms Sally Cavenett. She is the Director of Orthotics and Prosthetics South Australia (OPSA). OPSA is a South Australian Government department within Allied Health, Southern Adelaide Local Health Network. Prior to becoming a participant in the NDIS, Mr Hiney had been a client of OPSA for some twenty years
As will be discussed, following its internal review decision and prior to the Tribunal’s hearing, the NDIA adopted a position that no alteration to the statement of supports in Mr Hiney’s plan was necessary because, in fact, the supports :
(a)already allowed Mr Hiney to use the supports in his plan in accordance with his preference; and
(b)the supports as specified are reasonable and necessary.
LEGISLATION AND GUIDELINES
The NDIS is established by the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), and the NDIA administers the NDIS.
The objects of the NDIS Act set out in s 3 make particular reference to the purpose of providing reasonable and necessary supports for participants in the Scheme. Subsection (3)(1) provides in part that the objects of the Act are to:
...
(c) support the independence and social and economic participation of people with disability; and
…
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports;
In giving effect to the objects, regard must be given to, among other things, ‘the need to ensure the financial sustainability’ of the Scheme and ‘the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.’[2]
[2] National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) s 3(3)
Section 4 of the NDIS Act sets out general principles to guide decisions and actions taken under the Act. Relevantly, those principles include :

(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.

(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.

...

(11) Reasonable and necessary supports for people with disability should:

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

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

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

.

...
A participant’s plan and reasonable and necessary supports
Section 33 of the NDIS Act provides for the content of participant plans as follows:
Matters that must be included in a participant’s plan

(1) A participant’s plan must include a statement (the participant’s statement of goals and aspirations) prepared by the participant that specifies:
(a) the goals, objectives and aspirations of the participant; and
(b) the environmental and personal context of the participant’s living, including the participant’s:
(i) living arrangements; and
(ii) informal community supports and other community supports; and
(iii) social and economic participation.
(2) A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a) the general supports (if any) that will be provided to, or in relation to, the participant; and
(b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c) the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d) the management of the funding for supports under the plan (see also Division 3); and
(e) the management of other aspects of the plan.
Section 34(1) of the NDIS Act provides that, for the purposes of specifying in the statement of participant supports the reasonable and necessary supports that will be funded under the scheme, the CEO must be satisfied that:
(a) the support will assist the participant to pursue the goals, objectives and aspirations in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what is reasonable to expect families, carers, informal networks and the community to provide;
(f) 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.
If one of the above requirements in s 34(1) is not satisfied, then the particular item is not a reasonable and necessary support.
In McGarrigle v National Disability Insurance Agency, Mortimer J stated with respect to the question of whether a support is reasonable and necessary: [3]
Whether a support is ‘reasonable’ requires a different assessment to whether a support is ‘necessary’. Again, it is not necessary in the context of these proceedings 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’.
[3] [2017] FCA 309, [91] - [93].
In its internal review decision, the NDIA relied on s 34(1)(c) and s 34(1)(f) of the NDIS Act to explain and justify its rejection of Mr Hiney’s request to access a provider of choice. At no stage was there any suggestion that s 34(1)(a), (b) and (d) were not met. It was accepted that a new prosthetic was necessary.
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 Scheme. The Support Rules form part of the legislation.[4]
[4] NDIS Act s 209.
The NDIA provided the Tribunal with the Planning Operational Guidelines[5] which it uses in the planning and assessment process for determining the supports which will be included in a participant’s plan. Those guidelines are noted and can be considered by the Tribunal unless there are good reasons not to, such as inconsistency with the legislation.
[5] Exhibit 1, T18.
Section 10.9 of the Planning Guidelines refers to a principle of ‘no disadvantage’.[6] It includes a commitment that people receiving supports before becoming participants of the NDIS should:
·not be disadvantaged by the transition to the NDIS; and
·be able to achieve at least the same outcomes (i.e. achieve at least the same level of social or economic participation or maintain the ability to undertake the same range of activities) in the NDIS as compared to those expected to be achieved by their previously provided support.
[6] Ibid T18/120.
The Guidelines provide that the principle of no disadvantage is a commitment made through inter-governmental agreement to which the NDIA is not a party. However the NDIA must use its best endeavors to act in accordance with relevant inter-governmental agreements.[7]
[7] NDIS Act s 118 (2)(a).
NDIS PLAN
Mr Hiney’s first goal in his NDIS Plan was to get a prosthesis that makes life more comfortable. His second goal was to return to self-employed work as a part-time car detailer.
Total funding in Mr Hiney’s NDIS Plan amounted to $27,354.45, made up of:
·$1,021 for assistive technology;
·$1,504 for improved life choices;
·$4,338 for improved daily living;
·$1,606 for transport; and
·$18,885.45 for core supports.
The assistive technology component in the NDIS Plan stated that a quote would be required for prosthesis.
In the lead up to his NDIS Plan, Mr Hiney was having problems with both his right leg and his left leg. He is a patient of an orthopaedic surgeon, Mr Sutherland, in Warrnambool, Victoria. Reports from Mr Sutherland were included in the documentary evidence before the Tribunal.
Mr Sutherland‘s reports refer to Mr Hiney’s right leg below-knee amputation in 1987, multiple surgeries on the right leg following a fall in 2008 and continuing lateral knee pain and instability in subsequent years. In mid-2016 Mr Sutherland operated on Mr Hiney’s right knee to fix a lateral meniscus tear. In April 2017 Mr Sutherland performed a left knee anterior cruciate ligament reconstruction, which followed a fall because of problems with the right leg amputation.
In late 2017, Mr Hiney was suffering from osteoarthritis in the right knee. In a report dated 13 October 2017,[8] Mr Sutherland confirmed that Mr Hiney’s right knee was significantly arthritic. Mr Sutherland wrote that Mr Hiney ‘understands long-term implications of having a knee replacement at his young age in the practical challenges related to operating on an amputee, and he accepts the associated risks.’ The surgery went ahead in January 2018 and it was successful.
[8] Exhibit 1, T8.
In his written statement filed before the hearing Mr Hiney described the situation following the surgery and the need for a new prosthesis as follows:[9]
‘I was previously referred by OPSA to Barry Leech (in 2006) when OPSA were having difficulties fitting me with a prosthesis. After obtaining a well-fitting prosthesis from Barry in 2006, OPSA were then able to reproduce prosthetic legs for me for a number of years until my recent surgical procedure, a full knee replacement on my amputated leg (which I believe has never been done before in either South Australia or Victoria) has dramatically changed the shape of my stump and knee. After numerous attempts by OPSA to make a suitable fitting prosthesis without success, OPSA recommended that I go to Barry Leech once again. OPSA believes that if I go to Barry Leech to be cast and fitted correctly, that they should be able to duplicate adequately fitting legs again for a number of years to come. OPSA are also happy to continue to provide maintenance, components and consumables for my prosthesis long-term.’
[9] Exhibit 5.
The internal review
On 22 June 2018, Mr Hiney sought an internal review of the decision to approve the statement of supports in his NDIS Plan. He asserted that the NDIS Plan:
(a)Did not give him approval to source a properly fitting prosthesis from his interstate provider of choice, Mr Barry Leech;
(b)Was insufficient to meet his travel and accommodation expenses to access the service;
(c)Included supports for improved daily living and core supports which are not required. If he were allocated sufficient funds for a properly fitting prosthesis he would enjoy more independence with his personal care, accessing the community and resuming his work.
Mr Hiney’s orthopaedic surgeon, Mr Sutherland, wrote a letter in support of Mr Hiney’s request to access the prosthetic services in southern Queensland.[10] Mr Sutherland stated:
‘I write to support Andrew in his needs for orthotic services. Getting his fitting right has a huge part to play in the success of his knee replacement.’
Barry Leech, orthotist in Queensland, is recommended as the best to manage his very complex problem…’
[10] Exhibit 1, T12/26.
Significantly, Ms Cavenett also provided a letter in support of Mr Hiney which she addressed to him on 9 October 2018.[11] In part, Ms Cavenett wrote:
‘I would like the information used in this letter as support for you to choose your prosthetic service provider and to have access to that service provider through transport provision. In support of this proposal I can confirm through SAALS records you have accessed state-based funding for prosthetic services regularly since 1999. Typically you have required replacement prosthesis every 12 months. During the last 19 years of our records you have accessed Barry Leech prosthetics in Queensland in 2006 whereby this prosthesis did not require replacement for a two-year period.
It is important for me to acknowledge the unique condition of your residual limb due to both initial trauma causing the amputation and subsequent surgeries over the years. Compounding this is the high level of day to day activity and functional performance the prosthesis is required to withstand. Fabricating and fitting prosthesis for successful functional outcomes is difficult, and we have discussed the services you had with Barry Leech, however have not been able to replicate that success at a local Adelaide level. It is important to note also that you have trailed all services in the Adelaide region, and also the close border region of Victoria in an attempt to achieve best fit and therefore best functional outcomes’.
*SAALS - South Australian Amputee Limb Service
[11] Ibid, T11.
The first step of getting a quote would necessarily require Mr Hiney’s attendance in Queensland for a consultation and physical assessment. Together with a subsequent fitting, physical review and adjustments, the process could last about four or five days.
On 4 February 2019, about seven and half months after the internal review request, the NDIA provided its written response to Mr Hiney.[12] In that correspondence, the NDIA wrote that the funding request for return travel to Queensland was not reasonable and because it did not meet two of the criteria in s 34 of the NDIS Act, namely the criterion about value for money and the criterion about funding accountabilities.[13]
[12] Ibid, T2.
[13] NDIS Act ss 34(1)( c) and 34(1)(f) respectively.
The NDIA wrote that the requested travel funding did not represent value for money because:[14]
‘we are not satisfied that the funding of travel to and from Queensland for prosthesis is warranted as comparable supports could be obtained in Adelaide without the need to travel. Therefore, comparable supports in Adelaide could achieve the same outcome without the costs of travel to and from Queensland.
Travel to and from Queensland for prosthesis would not be value for money when this prosthesis could be obtained in Adelaide.’
[14] Exhibit 1, T2/12.
It is unclear why the NDIA suggested that comparable supports could be accessed in Adelaide and would achieve the same outcome for Mr Hiney.
Regarding the criterion about funding responsibilities as between the NDIA, other systems or support services, the only comment from the NDIA was: ‘travel to and from Queensland would not be considered when the services could be provided locally.’
It is not clear whether the reference to local service provision was intended to be a reference to a service that could be provided by other general systems of service delivery or support services, for example by state government instrumentalities.
By this time about nine months of the NDIS Plan had lapsed. The review date was 1 May 2019, slightly less than three months away.
The external review
Mr Hiney lodged an application for review by this Tribunal on 27 February 2019. The Tribunal has jurisdiction to review the NDIA’s internal review decision, which was made pursuant to s 100(6)(a) of the NDIS Act
Communications between Mr Hiney and the NDIA continued. The NDIA altered its position. By letter dated 3 April 2019 the NDIA advised a representative for Mr Hiney that the transport funding in his NDIS Plan was self-managed.[15] This would mean that Mr Hiney would have choice and control over how he spends transport funds. He could use the funds for flights and accommodation should he wish to do so. The allocated funding for transport in the plan was $1606. Specifically the NDIA wrote:[16]
‘We further confirm that transport funding is self managed and once it is paid to the participant they have full choice and control as to how they spend those funds. In this case, Mr Hiney can utilise those funds for flights and accommodation should he wish to do so.
Mr Hiney’s local area coordinator (LAC) is Mission Australia in Mount Gambier. Mr Hiney can refer any enquiries relating to his NDIS plan to Mission Australia.’
[15] Exhibit 4.
[16] Ibid.

This was a significant change by the NDIA from its position in the internal review correspondence and decision, at least in relation to flights and accommodation. Potentially, it meant Mr Hiney could use funds from the NDIS Plan to travel to Queensland.
There were other important developments. By letter dated 16 July 2019 the NDIA advised Mr Hiney that the funding in his NDIS Plan for assistive technology, was intended to cover funding for the assessment, manufacture and fitting of a new prosthetic leg.[17] The letter also pointed out:
‘the availability of funding for a prosthetic leg is subject to you providing a quote to the NDIA for that service. If you wish to access funding for a prosthetic leg, you need to obtain and provide the NDIA with a quote from your preferred provider.’
[17] Exhibit 3.
The allocated funding for a quote was $1,021.
The NDIA letter to Mr Hiney of 16 July 2019 also referred to the transport funding of $1,606 and the NDIA reiterated its position in relation to that funding by confirming its previous comments, conveyed by letter dated 3 April 2019.
On this approach the NDIA considered that there was sufficient funding in the NDIS Plan to meet Mr Hiney’s needs. Their view was that his application to this Tribunal was unnecessary as his requests were already met fully by his NDIS Plan. In relation to the prosthesis, if Mr Hiney obtained a quote which was subsequently approved by the NDIA, it would seem that further funds would be made available for the manufacture and fitting of the prosthesis. It is unclear how long it might take the NDIA, on that scenario, to approve a quote or, perhaps, seek another quote.
In its statement of facts, issues and contentions dated 5 August 2019, the NDIA contended that Mr Hiney could use the specified supports in his NDIS Plan in accordance with his preferences. The NDIA contended that the supports specified in the decision under review are reasonable and necessary supports within the meaning of s 34(1) of the Act. The NDIA submitted that the Tribunal should not make any variation to the decision under review because the existing supports in Mr Hiney’s NDIS Plan are framed in such a way that they do not frustrate Mr Hiney’s stated desire to use a particular provider and secondly there is no evidence to suggest that an alternative form of support is a reasonable and necessary support.
The NDIA also referred to the NDIA Assistive Technology and Consumables Guide. Section 2.4 and section 4.5.2 of the Guide require a quote to be provided for prosthesis of the type in issue.
CONSIDERATION
Mr Hiney gave evidence to the Tribunal which was honest and forthright. The Tribunal accepts his evidence.
Mr Hiney requires a well-fitted prosthesis on his right lower limb. If it is not a satisfactory fit he suffers additional pain and discomfort. As he indicated in his statement of lived experience, the only way to reduce that additional pain is to live his life ‘on an endless supply of controlled drugs.’[18]
[18] Exhibit 1, T10 – 23.
Mr Hiney has worked part-time as a vehicle detailer in a business that he runs by himself. His main hobby is riding a motorbike. Without a prosthesis which fits comfortably he is susceptible to falling over and causing damage to his legs and back. With a prosthesis which fits well he can carry out his part-time work, pursue his hobby of motorbike riding and live his life without fear of falling.
In his statement of lived experience, Mr Hiney wrote:[19]
‘I have been told that if I do not get a well fitting prosthesis, then it will be inevitable that I will need a further amputation to my leg from a below knee amputee to an above knee amputee, as the constant falls from ill-fitting legs will cause irreparable damage to the total knee replacement that I have already done. If I have to have an above knee amputation, this will affect my life dramatically including driving, not being able to work in my profession, unable to do most tasks around home, not being able to enjoy my hobby/interest of motorbike riding, and there is also very strong possibility that I may also need a full-time carer to help with most of my day-to-day tasks, such as showering, shopping, driving, gardening et cetera.’
[19] Exhibit 1, T10/23.
Prior to engaging with the NDIS in late 2017, Mr Hiney had been a client, or service recipient, at OPSA for about 20 years. In Adelaide OPSA is based at the Repatriation General Hospital. It also provides outreach services, including at regional centres in South Australia. Over the years Mr Hiney has accessed outreach services. Outreach is a maintenance service which includes on the spot advice, repairs and adjustments. However the fitting, design and manufacture of orthotic devices must be carried out at OPSA’s main facility in Adelaide.
Ms Cavenett, the director of OPSA attended the hearing in person and gave evidence. She confirmed that it was on her recommendation in 2006 that Mr Hiney consult Barry Leech in Queensland to fit a prosthesis for his right leg. She made that referral and recommendation because of the unique and complicating factors about Mr Hiney’s amputation. Moreover, she considered that Mr Leech possessed expert professional skills that were required to assess, manufacture and fit a suitable prosthesis which would meet Mr Hiney’s requirements, which would be durable and last for about two years rather than requiring replacement after 12 months if it was made in Adelaide.
Ms Cavenett confirmed in evidence that Mr Leech is still practising in Southport Queensland. In her opinion, Mr Leech has maintained his reputation for outstanding professional skills and knowledge. In 2018 Mr Hiney urgently needed a new prosthesis in the aftermath of surgery. Ms Cavenett recommended that Mr Hiney engage Mr Leech to make and fit a new prosthesis. She confirmed that OPSA had not been able to replicate the work of Mr Leech at a local level.
It is clear from the evidence of Mr Hiney and Ms Cavenett that obtaining a quote from a prosthetic provider would include several steps. It involves a face-to-face assessment conducted by the orthotist. Next a quote comprising some detail would be presented to the client and the funding agency. Approval at that point, if it occurs, is followed by prescription and authorisation of funding for the prosthetic device to be manufactured, fitted and tested. Modifications may be required. The process of assessment, prescription, manufacture and fitting takes several days, possibly in the order of four or five days and potentially more if there are additional complications. Ideally the client should be on hand throughout that period in order to ensure an uninterrupted procedure. In Mr Hiney’s case, it was possible that he would get swift approval for funding which might enable the finalisation of the process through to successful fitting during the one interstate journey. It was also possible, however, that the approval might not be forthcoming while he was in Queensland. He would have to go home without a new prosthesis and return later for a fitting and testing. Funding another trip might then be problematic. Another possibility was that approval would not be given at all, and that he would have to start again by looking elsewhere for a quote.
Mr Hiney said in evidence that, in fact, he had travelled to southern Queensland to consult Mr Leech. The consultations occurred between 22 and 26 July 2019. It also emerged form Ms Cavenett’s evidence that OPSA reached a decision to provide the funds for a face-to-face assessment by Mr Leech and, subject to that assessment, funding for manufacture and fitting of a new prosthetic device. Ms Cavenett confirmed that OPSA has fully funded the assessment, prescription, manufacture and fitting of a new prosthesis for Mr Hiney and he is not required to contribute any of those funds. Ms Cavenett had assessed Mr Hiney’s needs as critical. The delay in getting a new prosthesis could not continue and the best solution required the professional input and expertise of Mr Leech. Accordingly, Ms Cavenett approved the expenditure which seems to fit the description of one-off crisis funding.
Mr Hiney confirmed that he used transport funding from his NDIS Plan to cover the costs incurred by him and his wife in travelling to Queensland and staying there while Mr Leech carried out his work. The funded allocation was $1,606 and Mr Hiney’s out-of-pocket expenditure was slightly less than that.
The Tribunal was referred to the NDIA Assistive Technology and Consumables Guide, clauses 2.4 and 4.5.2 in support of the proposition that Mr Hiney needed to provide a quote in writing for the prosthesis. The NDIA submitted that the quote need only contain a reasonable estimate of the cost of providing the assistive technology support and does not require travel of the participant to meet a practitioner for the purposes of getting a quote. The problem with that contention is that a face-to-face assessment by the orthotist is an essential element of this kind of assessment and review. Given the complexities of Mr Hiney’s amputation, it was non-negotiable
Mr Hiney waited until early February 2019 for the result of the NDIA’s internal review. It was over a year following surgery and he still was without a new prosthesis. The internal review outcome made it clear that he could not use funding from his NDIS Plan to travel to Queensland as a suitable prosthesis could be obtained in Adelaide. At that point he thought he had nowhere to turn. His preference for a prosthesis manufactured by Mr Leech in Queensland was an exercise of his choice based on past experience. If anything it was a necessity, more so than a choice. He had the support of his orthopaedic surgeon and the Director of the relevant South Australian Government Department. Such support does not come lightly.
Between the time of the internal review outcome and the Tribunal’s hearing the NDIA altered its approach substantially with the apparent and helpful intention of trying to reassess the situation. Unfortunately, it seems that the channels of communication were no longer working well by that time.
In summary, it now transpires that Mr Hiney has received the appropriate prosthetic. He will not be required to contribute any of his own funds for that device which is fully funded by OPSA. His travel and accommodation expenses have been paid from the NDIS Plan. In that sense, he has not been disadvantaged in outcomes by the transition to the NDIS. However, the process has been crisis-driven and less than ideal.
Clearly, Mr Hiney was frustrated by the way in which the process unfolded, despite the later efforts of the NDIA, principally through the intervention of its legal officers, to try to retrieve the situation. In Millburn v National Disability Insurance Agency, Deputy President Constance stressed the importance of cooperation between an NDIS participant and the NDIA in the planning process.[20] This cooperation will often be vital in facilitating the provision of best evidence and the making of proper and prompt decisions.
[20] [2018] AATA 4928.
In view of the evidence at the hearing, the reviewable decision does not need to be varied or set aside in relation to the key issues of funding for a prosthetic device and funding for travel and accommodation for the fitting of the device. The NDIA acknowledged prior to the hearing that the requirements of s 34(1) of the NDIS Act are satisfied.
The review date issue
The review date on Mr Hiney’s NDIS Plan is 1 May 2019. That plan has not been replaced by another plan. Section 37(3) of the NDIS Act provides that a participant’s plan ceases to be in effect when it is replaced by another plan or when the participant ceases to be a participant in the NDIS, whichever is the earlier. Accordingly, Mr Hiney’s NDIS Plan is still in place.
In Williamson v National Disability Insurance Agency,[21] Deputy President Forgie discussed previous decisions of the Tribunal on the question of the Tribunal’s jurisdiction to alter the review date in a NDIS plan. Deputy President Forgie considered that a plan’s review date is one of the five items in a statement of participant supports, and concluded:[22]
…the Tribunal reviews the decision made by the CEO to approve a statement of participant supports under s 33(2), it may be engaged in reviewing each of the five matters that must be specified in it.
[21] [2019] AATA 2944.
[22] Williamson v National Disability Insurance Agency [2019] AATA 2944 [29] – [30].
The review date in the plan is included and is part of the statement of participant supports in the plan. It is, therefore, a part of the reviewable decision before the Tribunal. Ms Cavenett told the Tribunal that OPSA has become an NDIS provider, and 28% of OPSA clients have transitioned to the NDIA and Mr Hiney is one of them. In all likelihood, Mr Hiney will need to access OPSA services for any maintenance or other support for his new prosthesis. Ms Cavenett confirmed that invoicing for those services would be to the NDIS, that is, the payment will have to come from Mr Hiney’s NDIS Plan. There are unexpended funds in that plan.
If, as seems likely, the NDIA portal does not permit a NDIS participant to have access to funding after a review date has passed, it would be prudent, in these circumstances to extend the review date on the plan by six months to 28 February 2020.
DECISION
For the reasons given, the Tribunal varies in part the decision under review to extend the review date of Mr Hiney’s NDIS plan to 28 February 2020.

I certify that the preceding sixty six (66) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson

.............[sgnd]...................
Associate
Dated: 10 September 2019

Date of hearing: 15 August 2019

Applicant: In person

Advocate for the Respondent: Mr C. Herscovitch , National Disability Insurance Agency

Date of hearing:	15 August 2019
Applicant:	In person
Advocate for the Respondent:	Mr C. Herscovitch , National Disability Insurance Agency