Hollis and National Disability Insurance Agency

Hollis and National Disability Insurance Agency [2021] AATA 2888 (17 August 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2019/7415
Re:Rodney Hollis
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Mr S Evans, Member
Date:17 August 2021
Place:Sydney

The reviewable decision made 18 October 2019 is set aside and remitted to the Respondent for reconsideration in accordance with these reasons for decision.
..............................[SGD]..........................................
Deputy President J W Constance
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – funding for Support Workers – funding for counselling services – funding for assessment by an Occupational Therapist – renewal of registration and consumables for dog – consideration of sections 33 and 34 – whether supports represent value for money – whether the support will be or is likely to be effective and beneficial for the participant having regard to current good practice – decision set aside and remitted
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 33, 34
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
CASES
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Milburn and National Disability Insurance Agency [2018] AATA 4928
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Including Specific Types of Supports in Plans Operational Guideline – Assistance Animals
REASONS FOR DECISION
Deputy President J W Constance
Mr S Evans, Member
17 August 2021
Part 1: Introduction – Outline of Scheme, Legislation and Relevant Principles……[1]
Part 2: Evidence……………………………………………………………………………….[29]
Part 3: Support by Disability Support Workers………………………………………….[62]
Part 4: Counselling……………………………………………………………………………[85]
Part 5: Assessment by an Occupational Therapist…………………………………….[104]
Part 6: Registration and Consumables for Pluto……………………………………….[116]
Part 7: Conclusion…………………………………………………………………………...[186]
PART 1
Introduction –
Outline of Scheme, Legislation and Relevant Principles
1.1. INTRODUCTION

Mr Hollis has been a participant in the National Disability Insurance Scheme since November 2018. The Scheme was established by the National Disability Insurance Scheme Act 2013 (Cth) and is administered by the National Disability Insurance Agency.
Mr Hollis is 60 years old. He suffers from chronic post-traumatic stress disorder, generalised and social anxiety disorder, major depression, alcohol use disorder, emphysema and dyslexia.
Fortunately, several issues previously in dispute between Mr Hollis and the Agency have been resolved through the Tribunal’s alternative dispute resolution processes. However, there are four supports which Mr Hollis is seeking to have funded by the Agency which remain in dispute:
·services of Support Workers for three hours per day, six days per week (present funding is for nine hours per week);
·one hour per week counselling services;
·the services of an Occupational Therapist for a single assessment (15 hours);
·renewal of registration and consumables for his dog, Pluto.
Mr Hollis says that the supports he claims are reasonable and necessary and, therefore, should be funded under the Act. These claims will be set out in detail later in these reasons.
Mr Hollis is asking the Tribunal to review the Agency’s decision made on 18 October 2019.[1] We will refer to this decision as the reviewable decision.
[1] Exhibit R1 at 7.
During the hearing of Mr Hollis’ application, his Counsel properly reminded us of the various provisions of the Act which refer to the importance of respecting his wishes as expressed in his statement of goals and aspirations. We were reminded also of the need to enable participants in the Scheme to exercise choice and control in the pursuit of their goals. However these principles do not negate the provisions of the Act which must be met before it can be said that a particular support is reasonable and necessary. We note that both Counsel agreed that this was so.
For the reasons which follow we have decided that the requested support of an assessment by an Occupational Therapist is reasonable and necessary. Although we have not reached the same conclusion in relation to the remaining requested supports, we will make a recommendation in relation to additional support for Mr Hollis by a clinical psychologist.
1.2. OUTLINE OF SCHEME, LEGISLATION AND RELEVANT PRINCIPLES
We acknowledge submissions of the Solicitor for the Agency in an earlier application to the Tribunal[2] setting out the various provisions of the Act, Rules and Guidelines which provide the framework for determining the matters in dispute in this application. We are grateful for the assistance of those submissions, which form the basis of the content of this section.
[2] See Milburn and National Disability Insurance Agency [2018] AATA 4928.
Preparation of a participant’s plan
The Chief Executive Officer of the Agency is required to facilitate the preparation of a participant’s plan.[3] The plan must include:
·the participant’s statement of goals and aspirations; and
·a statement of participant supports prepared with the participant and approved by the Chief Executive Officer.[4]
It is to be noted that the statement of goals and aspirations is a statement by the participant and does not require the approval of the Chief Executive Officer. The statement of participant supports must specify the reasonable and necessary supports (if any) that will be funded under the Scheme.
[3] Section 32 of the Act.
[4] Section 33 of the Act.
The provisions of the Act giving the participant alone the right to state his or her goals and aspirations and at the same time requiring the Chief Executive Officer to work with the participant to prepare the statement of supports, and then to approve those supports which will be funded, “strikes a balance between two of the Act’s objects:
(a)the need to enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports, and
(b)the facilitation of a nationally consistent approach to the access to, and planning and funding of, supports for people with disability.”[5]
[5] Milburn and National Disability Insurance Agency [2018] AATA 4928 at [11]; the objects of the Act are set out in section 3 of the Act.
Implementing a plan
The plan comes into effect once the Chief Executive Officer has received the participant’s statement of goals and aspirations and approved the statement of participant’s supports.[6]
[6] Subsection 37(1) of the Act.
Money received by or on behalf of a participant must be spent in accordance with the participant’s plan.[7] An amount paid under the Scheme in respect of reasonable and necessary supports funded in accordance with a participant’s plan is referred to in the Act as the “NDIS amount.”[8]
[7] Subsection 46(1) of the Act.
[8] Section 9 of the Act.
The objects of the Act
The objects of the Act set out in section 3 make particular reference to the purpose of providing reasonable and necessary supports. Subsection 3(1) provides, in part:
The objects of this Act are to:
…
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; 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; and
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and
(h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability;
…
The objects are to be achieved by “adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability.”[9] In giving effect to the objects of the Act, regard is to be had 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.”[10]
[9] Paragraph 3(2)(b) of the Act.
[10] Subsection 3(3) of the Act.
General principles guiding action under the Act
The determination of the reasonable and necessary supports to be funded under the Scheme is a vitally important function of the Agency. Section 4 provides a set of principles to guide decision-making in respect of this and other functions under the Act.
The following principles are of particular relevance in making decisions as to reasonable and necessary supports:
(1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
…
(3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(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.
…
(8) People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.
(9) People with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.
…
(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.
…
(14) People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme.
(15) Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.
…
Subsection 4(17) further references the need to ensure the financial sustainability of the Scheme.
Although the phrase “reasonable and necessary supports” is not defined in the Act, its meaning can be determined with the assistance of the provisions referred to above. As the Federal Court said in McGarrigle v National Disability Insurance Agency:
Section 13 expressly indicates that a “support” might be a service, or it might be an activity. In my opinion, although s 14 (which deals with funding by the Agency of others to assist the participant rather than the Agency assisting the participant directly) is expressed purposively, its subject matter is also “support” - whether by way of services of activities or any other matter that assists a person with disability in a way that is consistent with the general principles set out in s 4. The word “support” must be given a broad construction in this context, and there is no need for the purposes of this proceeding to seek to give it any comprehensive meaning. Rather, the point to be made is that it is a practical description of the means by which a person with disability is assisted. It is not intended, in my opinion, to encompass funding, especially because what s 14 contemplates is that the Agency will “fund” a support. The Agency cannot “fund” funding. [Emphasis added].
…
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”.[11] [Emphasis added].
[11] [2017] FCA 308 at [88] and [91].
Functions of the Agency
Section 118 of the Act outlines the functions of the Agency, which include supporting the independence, and social and economic participation, of people with disability, enabling them to exercise choice and control in the delivery of their supports, and ensuring that their preferences are respected and given appropriate priority. This section also provides that the Agency is to promote the provision of high quality and innovative supports which maximise independent lifestyles and inclusion in the community of people with disability.
By paragraph 118(1)(b), the Agency has a further function of managing the financial sustainability of the Scheme.
Principles relating to the participation of people with disability
As part of Chapter 3 - Participants and their plans - subsections 17A(1) and (3) provide:
(1) People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.
…
(3) The National Disability Insurance Scheme is to:
(a) respect the interests of people with disability in exercising choice and control about matters that affect them; and
(b) enable people with disability to make decisions that will affect their lives, to the extent of their capacity; and
(c) support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability.
Matters which must be taken into account in deciding whether or not to approve a statement of supports
Subsection 33(5) provides:
(5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a) have regard to the participant's statement of goals and aspirations; and
(b) have regard to relevant assessments conducted in relation to the participant; and
(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant.
Matters of which the decision-maker must be satisfied in relation to the funding or provision of supports
Subsection 34(1) provides:
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
It is to be noted that all of these conditions must be satisfied in relation to each support.
In McGarrigle v National Disability Insurance Agency the Federal Court said:
Therefore, what is entered in a plan as a support becomes a determinative factor in the administration of the scheme. As the respondent submitted, by s 33(3), supports may be generally described or may be specifically identified. Either way, the function being performed on review by the Tribunal is to approve, vary of modify the supports as set out in a participant plan. In performing that function, the Tribunal must have regard to the matters set out in s 33(5), and form its satisfaction in accordance with s 34.[12]
[12] [2017] FCA 308 at [85].
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Sections 35 and 209 of the Act provide for the making of rules in connection with the funding or provision of reasonable and necessary, as well as general, supports. We will refer to these rules as the “Supports Rules”. As a Legislative Instrument, the Supports Rules bind the Tribunal in making decisions under the Act. Part 5 of the Supports Rules sets out general criteria for supports and supports that will not be funded or provided.
The Rules include:
General criteria for supports
5.1 A support will not be provided or funded under the NDIS if:
(a) it is likely to cause harm to the participant or pose a risk to others; or
(b) it is not related to the participant’s disability; or
(c) it duplicates other supports delivered under alternative funding through the NDIS; or
(d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b) costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
Supports that will not be funded or provided
5.3 The following supports will not be provided or funded under the NDIS:
(a) a support the provision of which would be contrary to:
(i) a law of the Commonwealth; or
(ii) a law of the State or Territory in which the support would be provided;
(b) a support that consists of income replacement.

Part 3 of the Supports Rules provides, in part:
Value for money
3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d) for supports that involve the provision of equipment or modifications: (i) the comparative cost of purchasing or leasing the equipment or modifications; and (ii) whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
The Schedule to the Rules sets out the considerations relevant to determining whether supports are most appropriately funded through the Scheme:
7.1 The Act limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems, for example as part of a universal services obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
7.2 The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system.
7.3 For the avoidance of doubt, while this Schedule sets out considerations relevant to whether a support should be considered to be more appropriately provided or funded through another service system, it does not purport to impose any obligations on another service system to fund or provide particular supports.
In its judgement in McGarrigle v National Disability Insurance Agency, the Federal Court said, in part:
[The Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports… It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.[13]
PART 2
[13] [2017] FCA 308 at [43].
EVIDENCE
In this part we set out evidence of a general nature and which is relevant to more than one of the supports requested. Further evidence will be referred to in relation to particular supports later in these reasons.
2.1. Evidence of Mr Hollis
Mr Hollis provided an undated statement made in or about July 2020.[14] He gave evidence at the hearing.
[14] Exhibit A1 at 106.
Mr Hollis is 60 years old. He shares a house with, and cares for, his friend, Ms Smith, who is also a participant in the Scheme. Mr Hollis has significant disabilities including complex post-traumatic stress disorder, dyslexia, depression, anxiety, chronic grief and emphysema. He is assisted by a Disability Support Worker for three hours per day, six days per week. Of this, nine hours per week is funded by the Agency.
Ms Smith provides some support for Mr Hollis, particularly by way of emotional support.
Mr Hollis described the impact of his disabilities as follows:
…These disabilities all impact me a lot and I do not feel like I have enough support to help me to deal with this, which is just making my mental health worse.
One of the effects of my disabilities is that I really struggle with intimacy and interacting with other people due to the tremendous losses I have suffered. I often withdraw from and avoid social situations which means that I am isolated a lot. However, when I am alone (which is often) my depression gets much worse.
Due to my PTSD I get in my head a lot and get really emotional. For me grief is a really strong depressant and is an overpowering emotion that takes over and is totally debilitating. I will often get very depressed and won’t be motivated to do anything. I often struggle to get out of bed and can sometimes go days without eating because of this. In some stages my PTSD has been so bad I only get 3-4 hours of sleep at night. I am working on this at the moment by trying to do more exercise, but I don’t have a lot of support to do this at the moment due to lack of funding.
I have also been diagnosed with bladder cancer, which I have had for around 3 years. I have just finished my most recent round of chemotherapy and am currently cancer free but will need to have regular check-ups. I find doctors appointments and attending hospitals extremely triggering and often need a lot of support to attend.
I am also currently at a high risk of Covid-19 because of my emphysema (I also have shingles at the moment which affects my immune system and makes me at high risk). This has also caused a lot of stress for me.[15]
[15] Exhibit A1 at 106-107.
We are satisfied that Mr Hollis was an honest witness who gave his evidence to the best of his recollection. We are satisfied that he described the effects of his disabilities as he experiences them.
2.2. Evidence of Ms Smith, friend of Mr Hollis
Ms Smith is a friend of Mr Hollis and shares a house with him. She provided two statements to the Tribunal, one signed in about July 2020[16] and one dated 25 February 2021.[17] Ms Smith gave evidence at the hearing.
[16] Exhibit A1 at 114.
[17] Exhibit A2.
Ms Smith has been sharing a house with Mr Hollis for the past eight years. As well as providing emotional support she often needs to prompt him to perform hygiene tasks, to eat and to take his medication. He needs more prompting when his depression worsens. Ms Smith also encourages him to exercise by asking him to accompany her on a walk.
Mr Hollis is forgetful and Ms Smith reminds him of important events and appointments.
Mr Hollis’ only other social interaction and informal support comes from five or six neighbours.
Mr Hollis cares for Ms Smith by assisting with preparation of meals, some cleaning, shopping, driving her to appointments, doing the laundry and gardening.[18]
[18] Transcript, 3 March 2021 at 52-53.
When asked by Counsel for Mr Hollis to describe Mr Hollis’ reaction to the presence of a Support Worker, Ms Smith responded:
Well he has a different tone in his voice, yes, I hear a smile in his voice. A bit cheeky almost and he’ll laugh. And yes, and sort of move around more physically. And then – that might be just while we’re even sitting around the table together not doing anything but you know, just have a different tone in his voice, he won’t have all that sort of grumpy, you know, mono (indistinct), don’t talk to me, don’t disturb me tone. And then usually, you know, his support workers then get him motivated and up away from the, you know, TV and off doing things, doing little jobs in the garden or, you know, going out for exercise or walks, or window shopping or coffee. Yes, the gym even.[19]
[19] Transcript, 3 March 2021 at 54.
The Support Workers check that Mr Hollis has had breakfast and encourage him to leave the house for social activities and exercise, including time in the gym. When they are not present Mr Hollis spend most of the day watching television; on occasions he takes sleeping tablets and sleeps during the day.[20]
[20] Exhibit A2 at [4]-[5].
2.3. Evidence of Ms Moss, Mental Health Social Worker
Ms Moss provided reports dated 24 July 2018,[21] 15 January 2019[22] and 20 January 2020.[23] She gave evidence at the hearing.
[21] Exhibit R1 at 28.
[22] Exhibit R1 at 34.
[23] Exhibit A1 at 84.
Ms Moss conducts a private practice specialising in treating people who have experienced trauma, both complex trauma from childhood and single incident trauma in adulthood.
Mr Hollis was referred to Ms Moss by his General Practitioner in June 2018 for treatment of several conditions including complex post-traumatic stress disorder and complex grief and loss issues. She treated him on a weekly basis until August 2020.
On 24 July 2018 Ms Moss reported that Mr Hollis would benefit from ongoing counselling in relation to his mental health issues. He needed significant prompting and support to assist him to interact with others and to manage activities of daily living.[24]
[24] Exhibit R1 at 29.
2.4. Evidence of Mr Schreiner, Clinical and Forensic Psychologist
Mr Schreiner evaluated Mr Hollis’ mental health in October 2020 at the request of Mr Hollis’ Solicitors. He provided a report dated 29 October 2020[25] and gave evidence at the hearing.
[25] Exhibit A1 at 31.
Mr Schreiner used several testing tools to assess Mr Hollis. He reported, in part:
Consistent with his self-reports and history, Mr Hollis’ scores on structured assessment tools indicated clinically significant symptoms of psychological difficulties, indicating depression, anxiety and stress. All results fell within the Severe to Extremely Elevated range. [Emphasis in original].[26]
He diagnosed Mr Hollis as suffering:
·Persistent Depressive Disorder;
·Major Depressive Disorder – Current Episode – Severe;
·Alcohol Use Disorder;
·Post-traumatic stress disorder – Chronic.
[26] Exhibit A1 at 45.
Mr Schreiner recommended Cognitive Behaviour Therapy (CBT) and Motivational Enhancement Therapy (MET) to address Mr Hollis’ conditions:
Mr Hollis would benefit from Cognitive Behaviour Therapy (CBT) based therapy/intervention. CBT places priority on changing and challenging negative cognitions and changing maladaptive behaviour patterns. CBT would be useful to address chronic PTSD symptoms as well as depression. His treatment should include psycho-education and symptom reduction. Counselling should explore coping skills, such as relaxation strategies and cognitive strategies aimed at changing “negative self-talk”, social skills training and reducing isolation. Treatment should also include various behavioural strategies, such as activity scheduling that Mr Hollis could complete with his support worker.
To further address alcohol use, Mr Hollis should participate in a Motivational Enhancement Therapy (MET) based approach. MET is an internationally accepted therapy approach to reduce drug and alcohol use and aimed at building internal motivation towards controlled use and/or abstinence.[27]
[27] Exhibit A1 at 47.
Although these treatments are usually completed within three months, Mr Schreiner is of the opinion that Mr Hollis will require longer than this. When he gave evidence he said that therapy should be for at least 12 months and reviewed periodically to assess its effectiveness. He recommended one session per week.
In the opinion of Mr Schreiner, Mr Hollis requires “frequent and ongoing support to complete activities of daily living”[28] as it is unlikely that he will be able to complete his daily tasks independently. Further, he requires support to overcome his social isolation and reluctance to access the community. This is common amongst those suffering from post-traumatic stress disorder. It is desirable that Mr Hollis engages in community-based activities at least twice per week.
[28] Exhibit A1 at 48.
2.5. Report of Ms Pordage, Occupational Therapist
Ms Pordage conducted a functional assessment of Mr Hollis in December 2020 at the request of the Solicitors for the Agency. The assessment was carried out at his home.
Ms Pordage provided a report dated 18 December 2020.[29] She did not give evidence at the hearing.
[29] Exhibit R1, ST3 at 250.
Ms Pordage reported, in part:
Why does Mr Hollis require the assistance of a support worker?
Mr Hollis requires the assistance of a support worker to provide demonstrations and verbal prompts in order for him to complete novel tasks. He also requires prompting to complete tasks to reach his goals.
What tasks does Mr Hollis require the assistance of a support worker to complete?
Mr Hollis requires the assistance of a support worker to complete cooking, some shopping and attend vital appointments with him to make sure he follows through with what he needs to do.
How many hours of support from a support worker does Mr Hollis require? Please provide this in either hours per week or year.
Mr Hollis will require 3 hours per day, 6 days a week.
Is it expected that the hours of assistance required by a support worker would gradually reduce over time? Please provide reasons for your answer.
The hours required will not gradually reduce as Mr Hollis’ cognition will not improve with these interventions. The support required is ongoing.
If Mr Hollis receives support from Pluto, will he still require the support of a support worker? If so, why and what type of support does he require?
Mr Hollis still requires the assistance of a support worker even when he has the assistance of Pluto. Mr Hollis’ assistance animal helps keep him calm so he is not in a fight or flight mode. His assistance animal cannot provide Mr Hollis the demonstration and verbal prompts which he needs to start some tasks.[30]
[30] Exhibit R1, ST3 at 265.
2.6. Evidence of Ms Parish, Occupational Therapist
Ms Parish assessed Mr Hollis on 23 January 2021 at his request. She provided reports dated 28 January 2020[31] and 7 May 2020[32] and gave evidence at the hearing.
[31] Exhibit A1 at 13.
[32] Exhibit A1 at 23.
Ms Parish assessed Mr Hollis in his home. She reported her assessment of the following functions:
·mobility in the home and in the community;
·transfers;
·self-care;
·communication;
·domestic tasks;
·community tasks; and
·cognition.[33]
[33] Exhibit A1 at 15-18.
Ms Parish expressed the opinion that Mr Hollis’ disability is life-long and has the potential to fluctuate significantly if he does not receive the required level of support. She recommended that he receive:
(i)counselling for one hour per week;
(ii)psychology services of one hour per week;
(iii)Support Worker services for 20.5 hours per week;[34]
(iv)assessment and investigation by an Occupational Therapist for 15 hours.[35]
The counselling and psychology services would facilitate capacity building and reduce the need for on-going core supports in the long-term.
[34] Exhibit A1 at 21.
[35] Exhibit A1 at 20.
Ms Parish provided the following details of the support services she recommended Mr Hollis receive:
·1:1 support 3 days per week for 3 hours per shift, including support on a Saturday, for support with meal preparation, using technology etc;
·1:1 support 1 day per week for 2 hours for completion of an exercise program;
·1:1 support 2 days per week for 4 hours per shift for social support/yard/ home maintenance and engagement in leisure tasks;
·1.5 hours per fortnight for domestic assistance.[36]
2.7 Matters to be considered under subsection 33(5)
[36] Exhibit A1 at 21.
2.7.1 The participant’s statement of goals and aspirations
In his statement of goals, Mr Hollis included the following medium or long term goals:
I would like to feel safe when accessing the community and increase my confidence and motivation to meet new people and expand my social interactions without worry and guilt, this includes having my assistance dog with me and maintain his care needs.[37]
[37] Exhibit R1 at 67-68.
How I will achieve this goal
I will continue to attend counselling to help me find strategies to feel safe and comfortable to increase my socialisation and access to the community.
How I will be supported
·I will be supported by a support worker to access the community more regularly, and find groups that I feel comfortable in.
·I will continue to be supported by my counsellor.
·I will be supported to coordinate my supports and find new providers where needed.[38]
[38] Exhibit R1 at 67-68.
I would like to develop an exercise routine that I can implement with support to increase my health and wellbeing and become more involved in the community.
How I will achieve this goal
I will work with a professional to develop a safe exercise routine.
I will find an environment where I am comfortable to exercise with someone to work with me.
How I will be supported
·I will be supported by a professional to build my capacity to exercise independently.
·I will have the support to be motivated to implement my exercise routine.
·I will have assistance to coordinate my supports.
I would like to increase my skills in self-management including my daily tasks, appointments, managing a budget and computer literacy so I can become more independent in managing my day to day tasks and support my ability to find work.
How I will achieve this goal
I will participate in opportunities to build my skills in self-management.
How I will be supported
I will be supported to find opportunities to engage in skill building.
Counsel for Mr Hollis argued that each of the requested supports would help Mr Hollis work towards his stated goals. Counsel for the Agency did not contend otherwise.
2.7.2 Relevant assessments conducted in relation to the participant
We have already set out evidence of a general nature which is relevant to more than one of the supports requested, and set out further evidence relevant to each requested support later in these reasons. This evidence includes assessments conducted by Ms Moss, Ms Parish, Ms Pordage and Mr Schreiner, which support the funding of the supports requested by the Applicant.
2.7.3 The requirements of section 34 in relation to the reasonable and necessary supports
Bearing in mind what was said by the Federal Court in McGarrigle v National Disability Insurance Agency and having regard to the requirements of section 33, we now turn to consider the requirements of section 34 of the Act in respect of each requested support.
PART 3
SUPPORT BY DISABILITY SUPPORT WORKERS
Mr Hollis is seeking funding for Support Workers for a total of 18 hours per week. He is provided support of nine hours per week in his existing plan. During the past year he has been receiving support for 18 hours per week by paying for additional support himself.
It was argued on his behalf that Mr Hollis is physically capable of undertaking activities of daily living, but he requires assistance “in the nature of prompting and motivating and checking.”[39] He needs encouragement to go out into the community.
3.1. IS THE SUPPORT MR HOLLIS REQUESTS TO HAVE FUNDED “REASONABLE AND NECESSARY” IN ACCORDANCE WITH THE ACT?
[39] Transcript, 5 March 2021 at 148.
The decision-maker, in this case the Tribunal, must be satisfied of all of the requirements of subsection 34(1). The Agency argues that the supports requested by Mr Hollis do not meet all of the requirements of the subsection.
We have concluded that the requirements of subsection 34(1)(c) and (d) are not met. Our reasons are set out in the following paragraphs 66 to 83 inclusive. In view of our conclusion we will not consider the remaining requirements of subsection 34(1).
Paragraph 34(1)(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”
Mr Hollis argues that as a result of his need for prompting and motivation, he requires daily assistance and that his lived experience over the past 18 months demonstrates that the amount sought is appropriate. Ms Parish estimated the support needed was 20.5 hours per week and said that Mr Hollis’ disabilities will fluctuate significantly if he does not receive the required level of support.

We accept that Support Workers assist Mr Hollis by motivating him to perform household tasks, to exercise and to engage with the community. However, we are not satisfied that the provision of 18 hours, rather than nine hours, of support per week will be of long-term benefit to him or will increase his independence. The evidence before us does not show that the Support Workers are assisting Mr Hollis to create new routines and prompts to increase his capacity and independence. We are not satisfied that the provision of the additional hours of support is likely to reduce the cost of funding of supports for Mr Hollis in the long term.
Mr Hollis gave evidence that his present Support Workers provide him with a lot of emotional support and engage him in social activity. We agree with Counsel for the Agency that it is not the role of a Support Worker to provide Mr Hollis’ social connections or community network, rather it is to assist him to develop relationships with others and to achieve his goals and increase his social and economic participation. We are not satisfied that increasing the Support Worker assistance presently available to Mr Hollis will achieve this.
In her report of 28 January 2020, Ms Parish provides a calculation of the hours of supports which, in her opinion, Mr Hollis requires. These include assistance with meal preparation, domestic tasks and the implementation of an exercise plan.
When Ms Parish gave evidence she said that her recommendation for domestic assistance was “probably quite standard to do a home fortnightly of the size of Mr Hollis’.” She was uncertain as to Mr Hollis’ needs for assistance with meal preparation and the use of technology. She agreed that consideration of these factors could reduce the hours of support she recommended.[40]
[40] Transcript, 5 March 2021 at 135.
In relation to the stated need for support with home maintenance, Ms Parish said:
The home maintenance, I guess, upon reflection that probably - I don’t know if it could be included in the domestic assistance, possibly. I didn’t observe the yard, I’m not entirely sure how large the yard was.[41]
Ms Parish agreed that this consideration could reduce the hours of support needed by Mr Hollis.
[41] Transcript, 5 March 2021 136.
When she prepared her report, Ms Parish was unaware of the extent of the assistance provided to Ms Smith for household cleaning of the home shared with Mr Hollis. Ms Parish was unable to justify the times she said were required for assistance with domestic duties.[42]
[42] Transcript, 5 March 2021 at 136–137.
Ms Parish’s evidence does not enable us to determine how the requested support meets the requirements of the Act and Rules. She appears to have based her recommendations on the assumption that Mr Hollis needs assistance with significantly more than motivation and prompting to perform tasks which he is physically able to perform himself.
Counsel for Mr Hollis referred us to the report of Ms Pordage, Occupational Therapist. Ms Pordage also concluded that Mr Hollis needs assistance from a Support Worker for three hours per day, six days per week. However her report does not disclose how she came to this conclusion, other than to say it “should be enough to cover domestic tasks, self-care tasks and self-management tasks.”[43]
[43] Exhibit R1 at 264.
We note that the reason Ms Pordage considered that Mr Hollis required the assistance of a Support Worker was “to provide demonstrations and verbal prompts in order for him to complete novel tasks. He also requires prompting to complete tasks to reach his goals.”[44]
[44] Exhibit R1 at 265.
Mr Schreiner was of the opinion that Mr Hollis needed support to prevent his neglecting himself. He did not express an opinion as to the hours of support necessary for Mr Hollis to achieve this.
Mr Hollis’ claim for additional assistance from Support Workers is based on his need for motivation and prompting to perform tasks he is physically able to carry out.[45] On the evidence referred to above we are not satisfied that an extra nine hours of support each week will meet the requirements of Rule 3.1. In our view it is likely that the additional support to continue motivating and prompting Mr Hollis to perform tasks he is able physically to perform, will only serve to perpetuate the problems he encounters.
[45] Transcript, 5 March 2021 at 148.
Based on the evidence of Mr Schreiner we are satisfied that there are therapies available to better enable Mr Hollis to address these issues. We take into account also that Ms Pordage reported that additional assistance from Support Workers will not improve Mr Hollis’ cognition and that, as a consequence, his need for such support will not decrease.
We are not satisfied that the support requested represents value for money
Paragraph 34(1)(d) – “the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice”
The Support Rules provide, in part:
Effective and beneficial and current good practice
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
Ms Pordage’s report supports the provision of Support Worker assistance of 18 hours per week, as did the other health professionals to whom we have referred. It was argued that this evidence, together with Mr Hollis’ statement of lived experience, is sufficient for us to decide that the requested assistance would be beneficial to Mr Hollis and in accordance with current good practice.
We do not accept this submission. Although several health professionals are of the opinion that Mr Hollis should have 18 hours of support from Support Workers each week, this does not establish that the support will be effective and beneficial to Mr Hollis, having regard to current good practice. Despite the consensus as to the need for 18 hours support (or very close to that figure), none of the assessors provided a clear basis for this conclusion. As we have referred to above, we accept the evidence of Mr Schreiner that there are therapies available which will assist Mr Hollis to address his lack of motivation and his need for prompting.
We are not satisfied that the provision of 18 hours per week of Support Worker services will be, or is likely to be, effective and beneficial for Mr Hollis, having regard to current good practice.
3.2.4 Conclusion
As we are not satisfied that the requirements of subsection 34(1) and subsection 33(5) are met, we are not satisfied that the provision of 18 hours of support by Support Workers is reasonable and necessary.
PART 4
COUNSELLING
Mr Hollis claims that one hour of counselling per week is a reasonable and necessary support. The Agency contends that we cannot be satisfied that the requirements of subsection 34(1) paragraphs (b), (c) and (d) are met.
4.1. Evidence
Mr Hollis
When he gave evidence, Mr Hollis said that his mental health is best when he attends a counselling session twice per week. To this end he has arranged to see his counsellor, Ms Wilkinson, for two one half-hour sessions per week. It is Mr Hollis’ wish that he be able to continue with counselling with Ms Wilkinson as he has been able to create an environment of trust with her.
Mr Hollis does not have a Medicare mental health plan. Previous efforts to obtain counselling support under a plan were unsuccessful as Medicare provides only a limited number of sessions per year, which Mr Hollis found to be insufficient.[46]
[46] Exhibit A1 at 110.
Ms Moss, Mental Health Social Worker
In July 2018 Ms Moss reported that Mr Hollis would benefit from ongoing counselling in relation to his mental health issues.[47] At the time she was seeing him on a weekly basis, using Dialectical Behaviour Therapy and Cognitive Behaviour Therapy as treatment modalities. Each week she was reinforcing and re-focussing him around the skills he already knew.[48] The best outcome achieved by this treatment was that Mr Hollis was not admitted to hospital during the time he was consulting Ms Moss.[49]
[47] Exhibit R1 at 29.
[48] Transcript, 4 March 2021 at 120.
[49] Transcript, 4 March 2021 at 125.
Ms Wilkinson, Counsellor
Ms Wilkinson has been providing Mr Hollis counselling services since January 2019. She provided an undated report. She did not give evidence at the hearing.
Ms Wilkinson reported, in part:
Consistent Counselling support creates neurological safety in the brain that enables clients to implement emotional and life regulating skills.
………………..
Rodney requires regular counselling appointments with myself as well as regular appointments with Rachel Moss, Mental Health Social Worker / Trauma Counsellor from Birchtree Centre for Excellence. These supports provide Rodney with capacity building opportunities as they support him to understand and work with his emotions and reactions in the community so he has the capacity to focus on skill-building and becoming more independent. They also provide him with increased self-awareness and the capacity to be mindful and live in the moment which builds his sense of neurobiological safety that builds his capacity to overcome the chronic PTSD.[50]
[50] Exhibit A1 at 76.
Mr Schreiner, Clinical and Forensic Psychologist
Mr Schreiner recommended Cognitive Behaviour Therapy and Motivational Therapy to address Mr Hollis’ conditions (see paragraph 26 of these reasons). The latter therapy is designed to reduce drug and alcohol use. When he gave evidence Mr Schreiner explained that Motivation Enhancement Therapy would improve Mr Hollis’ motivation and Cognitive Behaviour Therapy would be likely to relieve some of the symptoms of depression and PTSD.[51] The treatment is clinical, rather than functional, in nature.
[51] Transcript, 4 March 2021 at 110.
4.2. Reasoning
We have concluded that the requirements of subsection 34(1) paragraph (b) are met, but that paragraphs (c) and (d) are not met. Our reasons are set out in the following paragraphs 93 to 101 inclusive. In view of our conclusion we will not consider the remaining requirements of subsection 34(1).
Subsection 34(1)(b) – “the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation”
It was argued on behalf of Mr Hollis that counselling gives Mr Hollis the tools to use throughout the week to assist him (with the support of a Support Worker), to participate socially and economically.
Based on the evidence of Ms Moss, Ms Wilkinson, Mr Schreiner and Mr Hollis, we are satisfied that counselling services of one hour per week will assist Mr Hollis to undertake activities outside his home which will facilitate his social participation. In time this is likely to lead to Mr Hollis’ economic participation. We accept that he wishes to return to remunerative employment at some time in the future.
Paragraph 34(1)(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”
We are not satisfied on the balance of probabilities that the provision of ongoing counselling support one day per week represents value for money.
On the basis of the evidence we have set out in relation to counselling and Support Worker services, we are satisfied that the counselling received by Mr Hollis has provided him with greater stability than he would otherwise have enjoyed. However, we are not satisfied that counselling, when combined with Support Worker services, has addressed the cause of his disabilities or provided him with the means of lessening the effects of his disabilities or the means of improving his independence.
We accept the evidence of Mr Schreiner that Cognitive Behaviour Therapy “places priority on changing and challenging negative cognitions and changing maladaptive behaviour patterns.”[52] Although the cost of a session of treatment by a psychologist would be more than the cost of a counselling session, it may be that 12 months treatment, with progressive assessments as recommended by Mr Schreiner, would be more cost effective and achieve a better result for Mr Hollis than continuing the present counselling. For this reason we are not satisfied that continuation of counselling support of one hour per week will substantially improve the life stage outcomes for, and be of long-term benefit to, Mr Hollis (Support Rule 3.1(b); see paragraph 26 above).
[52] See paragraph 48 of these reasons.
In reaching this conclusion we have taken in to account the evidence of Ms Moss, who treated Mr Hollis on a weekly basis for two years. She described the treatment she provided as “sort of like maintenance.” [53]
[53] Transcript, 4 March 2021 at 126.
For the same reason we are not satisfied that provision of the support requested is likely to reduce the cost of supports for Mr Hollis in the long term (Support Rule 3.1(c)).
Paragraph 34(1)(d) – “the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice”
Mr Schreiner expressed the opinion that an experienced mental health social worker would be as good at providing Cognitive Behaviour Therapy as a clinical psychologist. While he said that it was probably not best practice for a social worker to administer the therapy, he did not say it was not good practice. Nevertheless, taking into account that Mr Hollis has suffered his disabilities for so long and that he has been able to make only minimal progress in improving his situation, we are satisfied that continuation of counselling, in the absence of treatment by a clinical psychologist, is not good practice.
We accept that Mr Hollis wishes the present counselling to continue. However, for the reasons set out above and taking account of the evidence of Mr Schreiner, we are not satisfied that counselling as proposed is likely to be effective and beneficial for Mr Hollis, having regard to current good practice.
Conclusion and recommendation
As we are not satisfied that the proposed counselling meets the requirements of subsection 34(1) of the Act, we are not satisfied that it is a reasonable and necessary support for Mr Hollis.
Mr Hollis has not sought support from a Clinical Psychologist; rather he has expressed the wish that he continue with counselling. However, in view of the evidence of Mr Schreiner, we recommend that consideration be given to providing support to Mr Hollis by way of treatment by a clinical psychologist, designed to assist him to overcome some of the disabilities he currently experiences.
PART 5
ASSESSMENT BY AN OCCUPATIONAL THERAPIST
5.1. Nature of the support requested
Report of Ms Parish
Details of the 15 hours of support being sought by Mr Hollis is set out in the report of Ms Parish of 7 May 2020, as follows:
Capacity Building funding for Occupational Therapy services has been recommended by OT Parish to support Mr Hollis in achieving his NDIS goals “…to increase my [his] computer literacy and develop my [his] confidence and motivation to find a job in my [his] chosen field” and “… to increase my [his] skills in self- management including my [his] daily tasks, appointments, managing a budget and computer literacy so I [he] can become more independent in managing my [his] day to day tasks and support my [his] ability to find work.”
OT Parish suggests the following breakdown of funding:[54]
[54] Exhibit A1 at 23.

Activity Hours Required

Investigation and trial of Assistive Technology (AT) to support communications and development of daily routines and organisation, e.g. computer software and/or smart phone applications. 1.5-hour appointment + Travel (30 minutes if last appointment of the day)

Completion of an NDIS AT Request Form (if applicable) 2 hours of report writing

Capacity Building support to assist Mr Hollis to use the AT independently as a memory and planning strategy e.g. to program audio appointment reminders, to communicate using voice to text functions, to schedule daily tasks using lists. 5 x 1-hour sessions + Travel (30 minutes if last appointment of the day)

Re-assessment of function to determine changes in capacity over the plan period. Development of a Plan Review Report at the end of the current plan period to support the generation of Mr Hollis’ next NDIS Plan with recommendations for suitable supports required to assist Mr Hollis in attaining his future NDIS goals. 1-hour assessment + 30 minutes travel + 2-hour report writing.

Total: 15 hours

5.2. Discussion

It was put on behalf of the Agency that if further occupational therapy assessment is reasonable and necessary then “it should be used to determine how the applicant’s existing supports can be utilised to assist him to build capacity, particularly in the areas of self-managements, routine and planning, and how his own capacity can be built to better manage his daily routine, and that may involve assistive technology.”[55]
[55] Transcript, 5 March 2021 at 162.
Further, it was argued that 15 hours for assessment of only the need for assistive technology is excessive and that a total of 10 hours would be sufficient. The Agency did not make submissions in relation to the particular requirements of subsection 34(1).
Consistently with our conclusion that Mr Hollis needs support which will address the causes and effects of his disabilities rather than just maintain the status quo, we are satisfied that an occupational therapy assessment of 15 hours is a reasonable and necessary support. Consideration of the requirements of sections 33 and 34 of the Act does not cause us to alter our conclusion.
Paragraph 34(1)(a) – “the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations”
We are satisfied that an assessment as proposed by Ms Parish, whatever the outcome, will assist Mr Hollis to pursue his stated goals, objectives and outcomes. It will assist him in understanding the means available to support his achieving those goals, objectives and outcomes or, alternatively, assist him to accept the impediments he may encounter in attempting to achieve them.
Paragraph 34(1)(b) – “the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation”
We are satisfied that, on the balance of probabilities, an assessment of Mr Hollis’ needs will assist him in managing his affairs and gaining computer literacy. This has the potential to increase the likelihood that Mr Hollis will be able to return to employment. We take into account the opinion of Ms Pordage that training on the use of apps and software will assist Mr Hollis to compensate for his dyslexia.
Paragraph 34(1)(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”
On the basis of the evidence of Ms Parish we are satisfied that the provision of 15 hours for assessment represents value for money. The Agency suggests that 10 hours would be preferable, but we do not have evidence to be satisfied that this would be the correct amount to be funded.
A further assessment by an Occupational Therapist, on the basis proposed, may provide Mr Hollis with support which goes well beyond maintaining his present position by a process of reminding, motivating and prompting. The likely cost is minimal and is likely to reduce future costs to the Scheme.

We do not have evidence that there are comparable supports which would achieve the same outcome at a substantially lower cost.
On the basis of the evidence of Ms Parish and Ms Pordage, we are satisfied that the support requested will increase Mr Hollis’ independence and may reduce the need for support by Support Workers in the future.
5.3 Conclusion and recommendation
The Agency proposed that if we decided that a further assessment by an Occupational Therapist is reasonable and necessary, we should not limit the scope of the assessment to that requested by Mr Hollis but that we should decide that the assessment be considerably wider. This may be appropriate but we do not have the evidence to make such a finding.
When considering these reasons, we recommend that there be further investigation of the value of an assessment along the lines suggested by the Agency.
PART 6
REGISTRATION AND CONSUMABLES FOR PLUTO
6.1 EVIDENCE AND FINDINGS OF FACT
6.1.1 Evidence of Mr Hollis
Mr Hollis’ toy poodle, Pluto, was only eight weeks old when he was acquired by Mr Hollis, who intended to have him trained to be able to visit residents of nursing homes. After two years training by Mr Hollis, assisted by the Delta Society, Pluto was authorised to visit nursing homes to interact with residents. Three or four years ago, Pluto received additional training to permit him to visit patients in children’s hospitals, although Mr Hollis has never taken Pluto to visit any such hospitals.
Mr Hollis has trained Pluto to:
·lick his hand;
·make eye contact;
·show affection;
·not sniff food in shops;
·sit and stay in shops; and
·travel on buses.[56]
[56] Transcript, 3 March 2021 at 22-23.
Pluto completed a mindDog training course in about September 2020. Mr Hollis described the final test of Pluto as follows:
Had to go to Woolworths again, and he had to stay on my right‑hand side and not run up to food or whatever. He had to stay, and I could walk away when ask to stay and wait; they wanted to see how he support me, and we go through and I explain how at night when I’m having dreams or whatever, he would wake me by jumping on me; and then they wanted to know what else, and we would talk about how he - in morning if I won’t get out of bed, he jump off bed, come back up, then get in, do that a few times, but then when he got me awake he then sit - stands back so I couldn’t put him back on bed. And what he’s doing is getting me out of bed. That was another thing he was doing. Things like that. Documented my food, didn’t I? Obedience; nuzzling; eye contact; and licking hand. I think I mfentioned everything.[57]
[57] Transcript, 3 March 2021 at 24.
Later in his written statement Mr Hollis describes the assistance given to him by Pluto:
30. Pluto and I have a very close bond. He helps prompt my medication, keeps me company and provides me with a lot of emotional support. He helps me with my intimacy and helps me feel more comfortable. I am not comfortable with intimacy with other people because of all the losses I have suffered.
31. If I go out to the shops with Pluto people will come up and talk to him and this helps me to be social as the conversation can focus on Pluto. When I don’t have Pluto with me, I don’t really have any intimate social interaction. It’s really overwhelming for me to go out. I’m constantly focused on if everyone else is ok and worried about negative things, so I just avoid people. When Pluto is with me, I know I can just talk about him and how cute he is, and it takes a lot of that stress away.
32. Pluto needs regular walks and needs me to take him so that does help encourage me. If I am suffering from grief and my depression is bad, I just won’t get out of bed. However, Pluto helps to motivate me to get up. When I am upset, he will often come and nudge me and sit with me. He always knows exactly when I need support. This really helps me to feel emotionally supported and loved and it makes my mental health much better.
33. I understand that there are some things Pluto does for me that he could do without being a qualified assistance animal. However, a lot of those things he does is because I have already organised for him to begin assistance animal training. Pluto used to be a delta dog and we used to go to nursing homes to see dementia patients, so he is very well trained in providing support. He has done some training for an assistance animal and I have been working with him on the training guidelines given to me by MindDog.[58]
[58] Exhibit A1 at 110-111.
Mr Hollis is able to spend more time out in the community as he feels more secure if Pluto accompanies him.[59]
[59] Transcript 03/03/2021 at 26.
If Pluto is not a registered assistance animal he cannot accompany Mr Hollis:
·during visits to his General Practitioner or to a hospital;
·on public transport;
·at shops;
·attending community groups;
·attending counselling; and
·at the hairdresser.
Mr Hollis has been able to take Pluto to these venues as Pluto has been wearing a training vest.
6.1.2 Evidence of Ms Smith, the Applicant’s friend
In her statement made in July 2020 Ms Smith said that Pluto keeps Mr Hollis company and helps him deal with his depression. Mr Hollis is more likely to associate with others if Pluto is with him.
When Mr Hollis gives Pluto medication this prompts him to take his own medication. Pluto plays with Mr Hollis and wakes him in the morning. He accompanies Mr Hollis to the supermarket, the barber shop, restaurants, appointments and meetings.
Ms Smith expressed the following opinion:
Rodney and Pluto have a very strong bond and Rodney’s mood is much better with Pluto around. Unfortunately, there are a lot of places Pluto cannot go with Rodney unless he has an assistance animal vest. Rodney needs to be able to take Pluto with him for emotional support and also for socialisation. Having Pluto around has helped Rodney form relationships with other people (like NDIS workers, therapists, shop assistants, and neighbours).
The benefit of Pluto being an assistance animal specifically is that Rodney knows ahead of time before going places that he will be able to take Pluto with him. This means he is much more likely to do things he needs to do and also things he enjoys as well as things which give him a sense of spiritual fulfilment, which being in nature and attending AA meetings do for him. Before Pluto had his vest, Rodney would often just avoid places, or if he did go and Pluto was turned away (which has happened) Rodney would be really traumatised.[60]
[60] Exhibit A1 at 118.
6.1.3 Evidence of Ms O’Grady, Senior Trainer and Assessor
Ms O’Grady has 20 years’ experience as a trainer of assistance dogs. She is employed by mindDog to train assistance dog trainers and assessors. mindDog “oversees the training of, and certifies, psychiatric assistance dogs.”[61] The organisation does not supply animals.
[61] Exhibit A1 at 102.
Ms O’Grady provided statements dated 14 September 2020[62] and 1 November 2020.[63] She gave evidence at the hearing.
[62] Exhibit A1 at 102.
[63] Exhibit A1 at 105.
Ms O’Grady refers to a psychiatric assistance dog as “an Assistance Dog who will alleviate the handler’s condition.”[64]
[64] Exhibit A1 at 102.
The training of a psychiatric assistance dog (accompanied by its owner) takes between 12 and 18 months. To be accredited under the mindDog program, a dog must pass a public access test and satisfy the assessor that there is a bond between the dog and the owner such that “the dog is constantly looking at the person and checking in with the person that they’re okay.”[65] The standards used to train psychiatric assistance dogs focus on meeting the public access test.[66]
[65] Transcript, 4 March 2021 at 70.
[66] Transcript, 4 March 2021 at 76.
Psychiatric assistance dogs are trained by mindDog to standards set by Assistance Dogs International, which represent best practice in the industry.
Pluto passed mindDog’s public access test and was accredited to assistance dog status in August 2020.[67] He will be assessed annually.
[67] Exhibit A1 at 98.
Pluto was assessed as being able to perform three tasks:
·mitigation of social isolation, meaning that Pluto will cause Mr Hollis to leave his home everyday;
·deep pressure therapy, by applying pressure to Mr Hollis with his paw or by lying on him; and
·calming Mr Hollis when he is anxious.[68]
Ms O’Grady was unaware of the manner in which Pluto performed the specified tasks as each training team operates “uniquely”.[69]
[68] Transcript, 4 March 2021 at 72.
[69] Transcript, 4 March 2021 at 86.
6.1.4 Evidence of Dr Howell, Research Fellow
Dr Howell is a Research Fellow at La Trobe University in the School of Psychology and Public Health. Her expertise is in companion animal and human relationships (being the relationships between pets and their owners), issues relating to assistant dogs and animal welfare. Dr Howell provided a report dated 24 February 2021[70] and gave evidence at the hearing.
[70] Exhibit R2.
Dr Howell identified different types of support animal (often dogs) referred to in literature and which commonly provide support of varying degrees to people with disabilities:
(i)a companion animal (also referred to as a pet);
(ii)an emotional support animal;
(iii)a visitation animal; and
(iv)an assistance animal, which includes a psychiatric assistance dog.[71]
[71] Transcript, 4 March 2021 at 91-92.
A companion animal (pet) was described by Dr Howell as an animal which is not necessarily trained to provide any sort of support to a person to mitigate his or her disability and is not trained to have public access.
An emotional support animal was described as:
…… an animal …… that is owned by a person with a diagnosed mental health disorder or illness, mental illness. That illness may or may not constitute a disability, but the emotional support animal is - they don’t necessarily have any sort of training to assist the person, their owner, but their presence somehow provides some sort of comfort to the owner. So the owner receives some emotional benefit from having the animal, even though the animal has not received any specific training. They do not have public access rights in Australia.[72]
[72] Transcript, 4 March 2021 at 91-91.
A visitation animal is an animal that is well-behaved but which does not have public access rights. A visitation animal is invited to spaces where pets may not be allowed, such as hospitals, schools and aged-care facilities. It will interact with people in such facilities without providing any goal-directed or structured intervention.
An assistance animal is an animal which assists its owner who has a disability to mitigate the impacts of that disability. In addition, it has a high level of training that makes it appropriate for the animal to access public places. The tasks an animal is required to perform to mitigate a psychiatric disability are specific to the needs of each owner, as the needs of people with psychiatric disabilities are highly individualised.[73]
[73] Exhibit R2 at [5].
An assistance animal should be able to perform three tasks that can be identified as mitigating the effects of a person’s disability. This helps in differentiating an assistance animal from emotional support animals.[74]
[74] Transcript, 4 March 2021 at 93.
A public access test can be conducted by an experienced dog assessor. There is no national test prescribed, although some States have legislated for such tests. There is no test prescribed by law in New South Wales. There is no validated measure of an assistance dog’s effectiveness although there are internationally recognised means of assessing the long-term impact of an assistance dog on a person’s quality of life. These would require assessment of the person both before and after receiving the assistance dog.[75]
[75] Exhibit R2 at [6].
Research conducted under the supervision of Dr Howell indicates that “assistance dogs provide more overall support for their owners than pet dog owners [sic], regardless of the pet owner’s disability status.”[76]
[76] Exhibit R2 at [7].
Dr Howell reported, in part:
I cannot characterise best practice because no universally agreed-upon standards exist, and there is no body which oversees the selection, training, and certification of assistance dogs throughout Australia. I can confirm what appears to be common practice. According to the results of a survey of provider organisations included in our 2016 report to the NDIA (see Enclosure B ST 1 of provided materials), many provider organisations work with breeders to select puppies while still in the litter, or they have in-house breeding programs from which they source their trainee assistance dogs. A smaller number of providers work with people who have selected a pet dog that they believe would be suitable for assistance work, or they obtain dogs from animal shelters for training. I have seen no scientific evidence to suggest that any of these methods are inherently superior to the others.
According to the results of the same survey, providers most commonly indicated that they prefer to begin training when the dogs are between 6 months and 2 years of age. Training then typically lasts 1 to 2 years. The working life of the dog is generally between 8 and 10 years, according to the provider survey. Assistance Dogs Australia and Guide Dogs SA/NT both retire their dogs around age 10, according to their website FAQs.[77]
Later in her report Dr Howell referred to standard practice for the selection of dogs for assistance dog training as being based on physical health as well as desirable temperament.[78]
[77] Exhibit R2 at [8b].
[78] Exhibit R2 at [10].
When asked as to best practice for the training of psychiatric assistance dogs, Dr Howell reported:
Given the lack of established, enforceable standards (e.g., by a national accreditation body) in the assistance dog training industry, it is impossible to provide an overview of best practice. I believe that the information provided in folios ST4 (ADI standards) and ST5 (service dog tasks for psychiatric disabilities) would reflect common, good practice for training PADs [psychiatric assistance dogs].[79]
[79] Exhibit R2 at [4].
In relation to Pluto, Dr Howell expressed the following opinions:
·although Toy Poodles live to a median age of 14.63 years, commencing training at 12 years would be a very late start for his training;
·his advanced age will severely limit his working life;
·his chronic health conditions raise concerns as to his ability to undertake “long and intensive” training.[80]
[80] Exhibit R2 at [10].
6.1.5 Evidence of Ms Moss, Mental Health Social Worker
In relation to Pluto, Ms Moss reported that:
Mr Hollis benefits significantly from the relationship he has with his dog. Pluto alleviates worry, provides comfort and mitigates against feelings of isolation and loneliness as well as providing a conduit to social interaction on their daily walks. Pluto also provides an identity for Mr. Hollis as a carer and a provider.[81]
[81] Exhibit R1 at 29.
On 15 January 2019 Ms Moss reported, in part:
Rodney’s psychiatric illnesses often prevent him from participating in activities of daily living, cause him to isolate and withdraw at times. When Rodney is depressed Pluto is often the reason for him to get up in the morning- he will get up and tend to Pluto’s needs including taking him for a walk. This enforced exercise benefits Rodney immensely. It also creates a situation where Rodney will interact with neighbours. This connection with others is essential when Rodney is unwell. In addition, Pluto will sense when Rodney is anxious or low and provides meaningful comfort and emotional support to him. When Rodney is distressed or experiencing flashbacks, Pluto’s calming and caring presence will ground and stabilise him.[82]
[82] Exhibit R1 at 34-35.
When she gave evidence Ms Moss referred to Mr Hollis suffering chronic low mood and “profound isolation”[83] which caused him to have an extremely poor quality of life. Intrusive thoughts take up a lot of his time. Treatment concentrated on refocussing him on skills he already knew.[84]
[83] Transcript, 4 March 2021 at 119.
[84] Transcript, 4 March 2021 at 120.
The outcome of the treatment provided was that during the period of treatment Mr Hollis did not require admission to hospital. Prior to treatment Mr Hollis had been admitted to hospital on more than 30 occasions. Ms Moss described the treatment as “sort of like maintenance.”[85]
[85] Transcript, 4 March 2021 at 126.
6.1.6 Evidence of Mr Schreiner, Clinical and Forensic Psychologist
In the opinion of Mr Schreiner, during his assessment of Mr Hollis, Pluto had had a positive and calming effect on Mr Hollis. He also expressed the opinion that the need to maintain Pluto would distract Mr Hollis from negative thought patterns and make it easier to implement cognitive strategies at times of distress.[86]
[86] Exhibit A1 at 50.
6.1.7 Evidence of Ms Parish, Occupational Therapist
Ms Parish identified the following tasks performed by Pluto which are beneficial to Mr Hollis:
·waking him in the morning;
·prompting him to get out of bed to care for Pluto (such as feeding and walking);
·prompting him to complete his own personal care before leaving the house;
·prompting him to exercise several times per day by walking;
·providing him the opportunity to interact socially while outside the house;
·providing the opportunity for play;
·displaying specific behaviours which signal the need for food.
Most of these tasks were identified on the basis of reporting by Mr Hollis.
6.1.8 Evidence of Ms Johnson, Actuary
Ms Johnson is the Scheme Actuary of the National Disability Insurance Scheme. She gave evidence at the hearing.
It is the responsibility of Ms Johnson, in her role as Scheme Actuary, to monitor the financial sustainability of the Scheme. This includes considering the present and future costs of the Scheme and understanding how different decisions may impact on those costs.
Estimates prepared by Ms Johnson’s Office, under her supervision, indicate that the cost to the Scheme of including companion animals as reasonable and necessary supports for Scheme participants would be $754 million per annum, an estimated increase in the costs of the Scheme by 6.7% for the 2020-2021 financial year.[87]
[87] Exhibit R8.
Ms Johnson confirmed that these estimates relate only to companion or pet animals.
6.2 REASONING
6.2.1: Are the supports Mr Hollis requests to have funded “reasonable and necessary” in accordance with the Act?
Bearing in mind what was said by the Federal Court in McGarrigle v National Disability Insurance Agency, we now turn to consider the requirements of section 34 of the Act.
Paragraph 33(5)(c) – the requirements of section 34
The decision-maker, in this case the Tribunal, must be satisfied of all of the requirements of subsection 34(1). The Agency argues that the support requested by Mr Hollis does not meet the requirements of subsection 34(1)(b), (c) and (d).
We have concluded that the requirements of subsection 34(1) paragraphs (c) and (d) are not met. Our reasons are set out in the following paragraphs 158 to 185 inclusive. It is important to note that the supports being requested are expenses related to Pluto’s upkeep and registration, not the provision of Pluto as an assistance dog.
In view of our conclusion we will not consider the remaining requirements of subsection 34(1).
Subsection 34(1)(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”
Based on the evidence of Mr Hollis and Ms Smith, we are satisfied that Pluto provides the following assistance to Mr Hollis:
·emotional support;
·facilitating interaction with others in the community;
·encouraging him to leave the house for exercise;
·motivation to get out of bed;
·jumping on him if he is dreaming.

We have not included prompting Mr Hollis to take his medication in the above list. Mr Hollis takes his own medication when administering medication to Pluto. Pluto does not take an active role in this process, rather Mr Hollis simply uses the need to medicate Pluto as an aide memoir; there are many alternatives available.
There is only limited evidence of the assistance provided by Pluto to mitigate the disabilities suffered by Mr Hollis.
We accept Mr Hollis’ evidence that Pluto provides him with companionship and at times a prompt for conversation and social interaction. We accept also that exercise Mr Hollis engages in when taking Pluto for a walk assists him in managing his mental and physical disabilities although we cannot be satisfied of the extent and effectiveness of such assistance.
On the evidence available we are not satisfied that Pluto provides effective deep pressure therapy to Mr Hollis or that any calming effect he has on Mr Hollis is related to Mr Hollis’ disabilities. Findings on these matters require evidence from appropriately qualified health professionals. Ms O’Grady was not so qualified and was uncertain as to the nature of the actual training which Pluto has received.
In light of our conclusions as to the benefit Pluto provides to Mr Hollis, we now consider whether the requested support represents value for money in accordance with the Act and Support Rules.
Part 3 of the Supports Rules provides, in part:
Value for money
3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d) for supports that involve the provision of equipment or modifications: (i) the comparative cost of purchasing or leasing the equipment or modifications; and (ii) whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
In his present plan Mr Hollis has available to him the assistance of Support Workers to motivate him, to assist him in the community and to exercise. We are satisfied that any additional assistance which could be offered by Pluto is minimal. The same outcome can be achieved by Mr Hollis utilising the time of the Support Worker already provided to him. This would incur no additional cost.
Pluto is close to the stage of his life when he will not be able to provide any support to Mr Hollis other than the emotional support provided by a pet. There is no evidence that the registration of Pluto or the provision of consumables for him over the remainder of his life will substantially improve the life stage outcomes for, and be of long-term benefit to, Mr Hollis. For the same reason we are not satisfied that the provision of the support is likely to reduce the cost of the funding of supports for Mr Hollis in the long term
We accept that Mr Hollis has a close bond with Pluto. We are satisfied that, irrespective of whether the requested supports are provided, Mr Hollis will continue to have the benefit of whatever assistance Pluto can provide him. The provision of the support requested will not increase Mr Hollis’ independence or reduce his need for other kinds of supports.
We are not satisfied that the support requested represents value for money.
Paragraph 34(1)(d) – “the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice”
The Support Rules
The Support Rules provide, in part:
Effective and beneficial and current good practice
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
The Operational Guideline
The Operational Guideline published by the Agency in relation to the application of paragraph 34(1)(d) of the Act to Assistance Animals includes the following:
To meet this criterion, the NDIA needs information and evidence confirming the following:
·best-practice interventions that have been used or trialled and how effective they are;
·how the assistance animal will perform at least three tasks that the participant is unable to do;
·pre- and post-trial outcome measures and/or lived experience;
·how the outcomes are a direct result of the assistance animal;
·the assistance animal has completed relevant training, and been assessed as suitably qualified as an assistance animal, and
·how the assistance animal has been assessed as suitable for the participant.[88]
[88] Exhibit R1, ST2 at 238.
In the Guideline an Assistance Animal is defined as:
……an animal that is trained to perform at least three tasks or behaviours that reduce the functional impacts of a person’s impairment and is assessed by an authorised body for public access.[89]
[89] Exhibit R1, ST2 at 235.
The Operational Guideline is a statement of government policy which the Tribunal should follow unless there is good reason not to do so.[90] In this matter there is no reason why we should not follow the policy, save that we are not satisfied that there is an authorised body available in New South Wales to assess an animal’s suitability for public access. Furthermore the policy is unclear as to the meaning of authorised body. In these circumstances it would place an unreasonable burden on a Participant in the Scheme to travel interstate to have an animal assessed. This situation may change.
[90] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642.
Consideration
We were impressed by Dr Howell’s expertise and the careful and considered manner in which she gave her evidence. She is a Research Fellow at the La Trobe University in the School of Psychology and Public Health and is experienced in companion animal and human relationships, assistance dogs and animal welfare. Dr Howell included references to her review of relevant literature and industry practices.
We accept Dr Howell’s evidence and are satisfied that her expert opinions are soundly based. Her descriptions of the different types of support animals form the basis of our consideration of the evidence, including the lived experience of Mr Hollis. However, it is important to note that the questions for consideration relate to the actual supports being requested in this particular application, namely, annual assessment and daily maintenance for Pluto.
Paragraph 34(1)(d) requires more than the proposed support be, or be likely to be, effective and beneficial to Mr Hollis – importantly, regard must also be had to current good practice.
As we have stated earlier in these reasons, there is no doubt that Pluto provides significant emotional support to Mr Hollis, in the manner of many companion dogs. However, in the context of the Act and the Support Rules, we have come to the conclusion that good practice in relation to support provided by an assistance animal requires at least the following to be established:
(1) the animal is able to perform no less that three tasks that can be identified as mitigating the effects of the person’s disability;
(2) in the case of an animal providing support to a person with a psychiatric disability or disabilities, those tasks must be specific to the needs of the person;
(3) a dog providing assistance in respect of a psychiatric disability should have been trained in accordance with the standards of Assistance Dogs International.[91]
(4) the animal has a high level of training that makes it appropriate for the animal to access public places.
This is not intended to be an exhaustive list.
[91] Exhibit R1, ST4 at 269.
Pluto has been trained by Mr Hollis with the assistance of the Delta Society. We accept Dr Howell’s evidence that the Society helps the owners of pet animals to train their pets to be visitation animals.[92] Mr Hollis gave evidence that it appeared to him that the trainers at Delta Society were “looking for the bond between him [Pluto] and me, was the main criteria, his demeanour and personality; and the connection that we have.”[93] We do not have evidence of the specific training received by Pluto to enable us to find otherwise.
[92] Transcript, 4 March 2021 at 92.
[93] Transcript, 3 March 2021 at 23-24.
According to the records of mindDog, Pluto was assessed as being able to perform the tasks of encouraging Mr Hollis to leave the house, deep pressure therapy and calming him when he is anxious.[94] However, Ms O’Grady was unable to say how Pluto had been trained to perform the listed tasks or if he had been assessed in accordance with mindDog’s usual assessment process.[95] The person who assessed Pluto did not give evidence.
[94] Exhibit A3.
[95] Transcript, 4 March 2021 at 76-77.
Based on the evidence of Dr Howell, we are satisfied that an assistance dog is trained to respond to cues from the owner, such as a nightmare or the onset of a dissociative state. The tasks performed will not always be command dependent. This is to be contrasted with a companion dog which is not trained to wake an owner at a specific time although it may do so randomly sometimes.
When askes to comment on the tasks Pluto is able to perform, to which we have referred in paragraph 158 of these reasons, Dr Howell responded:
………. all of these things are certainly natural behaviours that pet dogs can do but that they can also be trained to be done on cue. And they’re done on cue in response to whatever experience the owner is having or dealing with, and it does help the owner, then that would be considered a trained task.[96]
[96] Transcript, 4 March 2021 at 95.
Having assessed Mr Hollis in December 2013. Ms Pordage reported, in part:
Mr Hollis requires verbal prompting and reminders to effectively manage his self-care tasks. Mr Hollis uses Pluto as a cue to do some self-care tasks. These tasks need to be enforced by a support worker with checklists to help orientate Rodney.[97] [Emphasis added].
[97] Exhibit R1, ST3 at 13.
On the basis of the evidence to which we have referred we are satisfied that Pluto has not been trained to respond on cue so as to mitigate the effects of Mr Hollis’ disabilities. Rather we are satisfied that, quite appropriately, Mr Hollis uses Pluto as a cue to undertake daily tasks such as self-medicating, eating and leaving the house. We are not satisfied that the conduct of Pluto such as waking Mr Hollis, indicating that he wants to be taken outside or to have physical contact is any more than the common behaviour of a companion animal.
Further, for the same reasons, we are not satisfied that the tasks performed by Pluto are specific to Mr Hollis’ needs arising from his psychiatric disability.
The evidence before us does not establish that Pluto has been trained to the standards required by Assistance Dogs International or that he has received a high level of training for access to public places. We accept that Pluto has been trained as a well-behaved companion dog when he is interacting with the public. However, for a dog to be trained to a high level in this regard requires similar training to that received by other assistance animals such as seeing-eye dogs. We are not satisfied that Pluto has been trained to this level.
For the reasons stated we are satisfied that Pluto is not an assistance animal within the meaning of the Act and Rules. It follows that the support requested in relation to his registration and maintenance are not reasonable and necessary within the meaning of section 34 of the Act.
PART 7
CONCLUSION
The reviewable decision made 18 October 2019 will be set aside and remitted to the Respondent for reconsideration in accordance with these reasons for decision.

I certify that the preceding 186 (one hundred and eighty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance and Mr S Evans, Member

...............................[SGD].........................................
Associate
Dated: 17 August 2021

Date(s) of hearing: 3-5 March 2021, 16 April 2021

Solicitors for the Applicant: J Finlay, Legal Aid NSW

Counsel for the Respondent: J Sproule

Solicitors for the Respondent: National Disability Insurance Agency

[2021] AATA 2888

17 August 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Standing

Activity	Hours Required
Investigation and trial of Assistive Technology (AT) to support communications and development of daily routines and organisation, e.g. computer software and/or smart phone applications.	1.5-hour appointment + Travel (30 minutes if last appointment of the day)
Completion of an NDIS AT Request Form (if applicable)	2 hours of report writing
Capacity Building support to assist Mr Hollis to use the AT independently as a memory and planning strategy e.g. to program audio appointment reminders, to communicate using voice to text functions, to schedule daily tasks using lists.	5 x 1-hour sessions + Travel (30 minutes if last appointment of the day)
Re-assessment of function to determine changes in capacity over the plan period. Development of a Plan Review Report at the end of the current plan period to support the generation of Mr Hollis’ next NDIS Plan with recommendations for suitable supports required to assist Mr Hollis in attaining his future NDIS goals.	1-hour assessment + 30 minutes travel + 2-hour report writing.
Total:	15 hours

Date(s) of hearing:	3-5 March 2021, 16 April 2021
Solicitors for the Applicant:	J Finlay, Legal Aid NSW
Counsel for the Respondent:	J Sproule
Solicitors for the Respondent:	National Disability Insurance Agency