Hoolachan and National Disability Insurance Agency
[2019] AATA 4798
•19 November 2019
Hoolachan and National Disability Insurance Agency [2019] AATA 4798 (19 November 2019)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2018/0719
Re:Tracey Hoolachan
APPLICANT
National Disability Insurance AgencyAnd
RESPONDENT
DECISION
Tribunal:Senior Member F Meagher
Date:19 November 2019
Place:Brisbane
The Tribunal varies the decision under review to specify the provision of the ongoing costs associated with a “Medical Alert (life buzzer) – St John” in the statement of participant supports.
........................................................................
Senior Member F Meagher
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – Whether supports are reasonable and necessary – Transport – Consumables – Physiotherapy – Gym membership – Special shoes – Medical alert (life buzzer) – Wheelchair rent – Leg amputation, peripheral vascular disease and lymphoedema – Decision under review varied
LEGISLATION
Administrative Appeals Tribunal Act 1975
National Disability Insurance Scheme Act 2013
CASES
Re Drake and Minister for Immigration and EthnicAffairs(No 2) (1979) 2 ALD 634
McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121; [2017] FCA 308
Milburn v National Disability Insurance Agency [2018] AATA 4928
REASONS FOR DECISION
Senior Member F Meagher
19 November 2019
INTRODUCTION
Ms Tracey Hoolachan has made an application to the Administrative Appeals Tribunal (“the Tribunal”) for review of a decision dated 12 January 2018 made by the National Disability Insurance Agency (“the NDIA”) to affirm its earlier decision to approve the statement of participant supports in her plan on the basis that certain supports requested by her were not reasonable and necessary supports pursuant to subsection 34(1) of the National Disability Insurance Scheme Act 2013 (“the NDIS Act”).
For the reasons which are set out below, the reviewable decision is varied.
THE NATIONAL DISABILITY INSURANCE SCHEME
Section 32 of the NDIS Act states that the CEO must facilitate the preparation of a participant’s plan and subsection (1) states
(1)If a person becomes a participant, the CEO must facilitate the preparation of the participant’s plan.
Section 33 of the NDIS Act deals with what must be in a participant’s plan. Subsection (1) sets out the requirements with respect to the participant’s statement of goals and aspirations, including that they are prepared by the participant. Subsection (2) applies to the statement of participant supports which must also be included in the plan, and which must be prepared with the participant and approved by the CEO of the NDIA (Emphasis added). Subparagraph 33(2)(b) specifically provides:
A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
…
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
…
Subsection 33(5) of the NDIS Act states that the matters to which the CEO of the NDIA must have regard in deciding whether or not to approve the statement of participant supports are as follows:
(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.
Subsection 34(1) of the NDIS Act provides, with respect to reasonable and necessary supports, as follows:
(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.
These provisions must be read in the context of the entire NDIS Act, and by reference to the Objects of the NDIS Act as set out in section 3, and the General Principles guiding actions under the NDIS Act set out in section 4.
The NDIS Act does not define the phrase ‘reasonable and necessary’. In McGarrigle v National Disability Insurance Agency (McGarrigle)[1], Mortimer J stated as follows:
[91] 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”.
[1][2017] FCA 308 [91].
Further guidance with respect to the funding or provision of reasonable and necessary supports is found in the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (“the Rules”) which are made pursuant to subsection 35(1) of the NDIS Act which provides:
(1)The National Disability Insurance Scheme rules may make provision in connection with the funding or provision of reasonable and necessary supports or general supports, including but not limited to prescribing:
(a)methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding, the reasonable and necessary supports or general supports that will be funded or provided under the National Disability Insurance Scheme; and
(b)reasonable and necessary supports or general supports that will not be funded or provided under the National Disability Insurance Scheme; and
(c)reasonable and necessary supports or general supports that will or will not be funded or provided under the National Disability Insurance Scheme for prescribed participants.
By reference to section 209 of the NDIS Act, the Rules are a legislative instrument, thus binding the Tribunal. In this case the relevant rules (National Disability Insurance Scheme (Supports for Participants) Rules 2013), include rules 2.1, 7.21 and 7.22 that state:
Introduction to supports for participants
2.1Once a person becomes a participant in the NDIS, they develop a plan with the Agency. The plan comprises two parts:
(a)the participant’s statement of goals and aspirations, which is prepared by the participant and specifies their goals, objectives, aspirations and circumstances; and
(b)the statement of participant supports, which is prepared with the participant and approved by the CEO, and sets out, among other matters, the supports that will be provided or funded by the NDIS.
Transport
7.21 The NDIS will be responsible for:
(a)supports for a person that enable independent travel, including through personal transport-related aids and equipment, or training to use public transport; and
(b)modifications to a private vehicle (ie not modifications to public transport or taxis); and
(c)the reasonable and necessary costs of taxis or other private transport options for those not able to travel independently.
7.22 The NDIS will not be responsible for:
(a)ensuring that public transport options are accessible to a person with disability, including through the funding of concessions to people with disability to use public transport; or
(b)compliance of transport providers and operators with laws dealing with discrimination on the basis of disability, including the Disability Standards for Accessible Public Transport 2002; or
(c)transport infrastructure, including road and footpath infrastructure, where this is part of a universal service obligation or reasonable adjustment (including managing disability parking and related initiatives).
There are also Operational Guidelines which constitute government policy. The Tribunal is not bound by policy, however, in Re Drake and Minister for Immigration and EthnicAffairs(No 2) (Drake No 2)[2], the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.
[2](1979) 2 ALD 634.
ISSUE
The issue to be decided by the Tribunal is whether section 34 of the NDIS Act is satisfied with respect to:
·increased funding for transport;
·incontinence pads/consumables;
·physiotherapy;
·gym membership;
·special shoes;
·medical alert (life buzzer) – St John Queensland; and
·wheelchair rent.
BACKGROUND
Ms Hoolachan is 56 years old, and lives in Toowoomba, Queensland. She has had a right leg amputation,[3] and also has peripheral vascular disease and lymphoedema.[4]
[3]T documents page 21.
[4]T documents page 28.
Ms Hoolachan became a participant in the National Disability Insurance Scheme (the NDIS) on 25 October 2017.[5] On 4 December 2017 a delegate of the CEO of the NDIA approved a plan[6] which set out the following goals:
[5]T documents page 48.
[6]T documents page 62.
Part 2: My goals
This part of my Participant Statement lists the goals I want to work towards during this plan.
My First Goal is:
During this plan: I want to be safe in my home and as independent as possible in my daily activities
My Second Goal is:
During this plan: I want to engage more on social and community activities, specifically through my market jewellery stall and seeing more of my friends
My longer term goals and aspirations are:
Goal: I want to continue and complete my university studies
Relates to: LearningGoal: Once I have completed my degree, I want to return to the work force.
Relates to: Work
That plan included supports as follows:[7]
[7]T documents pages 67 – 69.
Support Area:
Assistive Technology
Budget:
Quote required
Details:
Funding for equipment is allocated for the purchase of equipment. This equipment funding may be accessed ONLY on the basis of an assessment and recommendation from a suitably qualified professional and the NDIA reasonable and necessary approval of the assistive technology to be supplied. QUOTES are required.
Rental - Composite (x 2) [Quote Required]
Wheelchair manual - Composite (x 1) [Quote Required]
Mobile shower commode - Composite (x 1) [Quote Required]
Pressure care cushion - Composite (x 1) [Quote Required]
How will the supports be paid:
NDIS will pay my support provider directly for these supports
Support Area:
Improved life choices
Budget:
$2,045.27
Details:
Plan Management financial and service intermediary activities, financial intermediary monthly processing and financial intermediary set up costs
How will the supports be paid:
NDIS will pay my support provider directly for these supports
Support Area:
Improved daily living
Budget:
$7,454.73
Details:
Funding for individual assessment, therapy and/or training (includes quotes for assistive technology) Allied health professional assessment, sourcing, training and report completion.
How will the supports be paid:
NDIS will pay my plan management agency directly
for these supports
Support Area:
Support coordination
Budget:
$1,881.20
Details:
Assistance to strengthen your ability to coordinate and implement supports, strengthen your informal network and coordinate a range of both funded and mainstream supports. The participants plan will be monitored by a support coordinator who will ensure that the NDIS receive copies of all assessments and reports related to the funded supports
How will the supports be paid:
NDIS will pay my plan management agency directly
for these supports
Support Area:
Transport
Budget:
$2,472.00
Details:
Support to access work, study and community activities.
How will the supports be paid:
NDIS will pay me directly for these supports
Support Area:
Core Supports
Budget:
$115,475.00
Details:
Personal continence products, activity related products and protectors to maintain health, wellbeing and participation in community activitities [sic]
Flexible supports to enable maximum independence in personal activities of daily living.
These supports can be provided in a range of environments, including but not limited to, the participant’s own home.
Flexible support to explore and participate in community based activities of interest and to develop, build and maintain friendships.
How will the supports be paid:
NDIS will pay my plan management agency directly
for these supports
By letter dated 10 December 2017, Ms Hoolachan requested an immediate review of her NDIS plan. As well as seeking a review of the plan, Ms Hoolachan’s letter canvassed a number of complaints regarding the NDIA.[8] The decision under review was affirmed by way of letter dated 12 January 2018.[9]
[8]T documents page 53.
[9]T documents page 14.
On or about 9 February 2018, Ms Hoolachan lodged an application for review with the Tribunal.[10] In her application for review Ms Hoolachan sought the following:[11]
The Applicant has established both Carers Queensland and NDIS are negligent and incompetent. The Applicant has confirmed her care is wholly the Constitutional responsibility of the Commonwealth Government. The Applicant has no alternative but to seek an order for an annual sum in the amount of $132,000 (One hundred and thirty-two thousand dollars [$129,000 + $3,000 transportation increase]) adjusted to CPI advance paid annually to enable her to truly manage her own health needs under the NDIS. The Applicant will undertake to provide a separate bank account and necessary accountings linked to supplied NDIS general ledger items for amalgamated file allocation. The Applicant will also provide proof of purchases and a spreadsheet;
The Applicant seeks an order that NDIS must provide her with all her assisted equipment needs namely her choice of a manual wheelchair with adequate cushions, scooter, electric hire 6 weeks option, shower commode and medical bed mentioned herein plus a shower commode, and cushions on provision of a quote suitable to the Applicant.
The Applicant seeks an order that the piece of rubbish uploaded as her statement be removed immediately and she will draft a new statement with her correct goals;
The Applicant seeks an order that all senior parties involved in attempting to deprive this Applicant of both the right to submit her own statement and the right to request a review of her decision are removed from a position of authority. This Applicant is well aware that many disabled Applicants are unable to legally defend themselves or voice their concerns. This Applicant is also aware of gag orders imposed on many workers in the Care industry;
The Applicant is not impressed that her private medical details have been breached. The Applicant seeks an order for a review of security procedures at Carers Queensland.
[10]T documents page 1.
[11]T documents pages 6 – 7.
On 24 January 2019, pursuant to section 26 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), and with the consent of the parties, the Tribunal made orders as follows:
… the Tribunal, with the consent of the parties, varies the decision of 12 January 2018 as follows:
1)the date by which the Respondent must review the Applicant’s plan under Division 4 of the National Disability Insurance Scheme Act (NDIS Act) is by 11 July 2019.
2)until this proceeding is finalised, the Applicant will continue to have access to reasonable and necessary supports under s 34 of the NDIS Act and this agreement will be achieved through:
a)the pro rata implementation of a new six month plan which will include funding in the amount of $80,043.52, particularised as follows:
i)the funding for assistive technology is $15,379.42;
ii)the funding for improved life choices is $1,022.64;
iii)the funding for improved daily living is $3,727.36;
iv)the funding for support coordination is $940.60;
v)the funding for transport is $1,236.00; and
vi)the funding for core supports is $57,737.50.
b)the following additional supports:
i)a scooter with accessories, funding in the amount of $5,958.15;
ii)a wheelchair, funding in the amount of $3,833.50;
iii)two cushions, funding in the amount of $602.00;
iv)a medical bed, mattress and over bed pole, funding in the amount of $3,250.00; and
v)a shower commode, funding in the amount $1,735.77.
The Tribunal notes:
…
C.the Applicant has been reimbursed relocation costs in the amount of $1,100.00.
The hearing was initially set down for 22 February 2019 and was adjourned on that date at the request of Ms Hoolachan who wished to obtain legal advice. On that date the Tribunal also made directions as follows:
The Tribunal DIRECTS that:
1.On or before Friday 29 March 2019, the Respondent will provide to the Tribunal and the Applicant an amended Statement of Issues, Facts and Contentions.
2.On or before Friday 12 April 2019, the Applicant will provide to the Tribunal and the Respondent an amended Statement of Issues, Facts and Contentions.
3.The matter will be set down for a hearing on Tuesday 7 May 2019.
The Hearing was held on 7 May 2019. Evidence at the Hearing was given by Ms Hoolachan who was self-represented. The NDIA was represented by Mr Matthew Hawker.
There is substantial evidence before the Tribunal reflecting Ms Hoolachan’s complaints about the NDIS and the NDIA, the deficiencies she perceives to have encountered in the planning process and in obtaining support coordination with respect to her plan. At the outset of the Hearing it was explained to Ms Hoolachan that the Tribunal’s jurisdiction is confined to matters properly before it in terms of section 103 of the NDIS act which states:
103 Applications to the Administrative Appeals Tribunal
Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
Note:Under the Administrative Appeals Tribunal Act 1975, notice must be given to persons whose interests are affected by a decision of the reviewer.
In turn, subsection 100(6) of the NDIS Act states:
(6)The reviewer must, as soon as reasonably practicable, make a decision:
(a)confirming the reviewable decision; or
(b)varying the reviewable decision; or
(c)setting aside the reviewable decision and substituting a new decision.
Reviewable decisions are set out at section 99 of the NDIS Act and relevantly include at Item 4 “a decision to approve the statement of participant supports in a participant’s plan”, being a decision made by the CEO of the NDIA under subsection 33(2) of the NDIS Act.
The Tribunal acknowledges Ms Hoolachan feels aggrieved by her claimed difficulties in dealing with the NDIS and the NDIA. The Tribunal notes that Ms Hoolachan reports difficulties in accessing her first support coordinator,[12] who left not long after commencing working with Ms Hoolachan. The Tribunal also notes that Ms Hoolachan states that she has had difficulties in contacting her second support coordinator.[13] Ms Hoolachan says that the statement of goals and aspirations in her plan was not prepared by her, and does not accurately reflect her goals and aspirations.[14] The Tribunal is also cognisant that Ms Hoolachan feels she has had to fight very hard[15] to obtain the supports she has, including with respect to moving house,[16] and that she has ongoing difficulties with cleaners.[17] The Tribunal also notes that Ms Hoolachan claims she has sought less from the NDIS than she was advised she needed when discharged from hospital, and as such feels she has been very reasonable.[18]
[12]Transcript page 18.
[13]Transcript pages 17 – 18, 20, 28 – 29, 42 and 99.
[14]Transcript page 59.
[15]Transcript pages 26 and 88.
[16]Transcript page 37.
[17]Transcript page 27.
[18]Transcript page 52.
The Tribunal does not in any way diminish Ms Hoolachan’s concerns. However, Ms Hoolachan’s expectations of the support coordinator’s role may be seen to be unrealistic – for example with respect to the collection of taxi receipts,[19] which, in the Tribunal’s view could only be collected by Ms Hoolachan in the first instance, and the delivery of a particular brand of incontinence pads to her door without her actually entering into an arrangement for that to be done.[20] There were also submissions made by Mr Hawker for the NDIA suggesting that the current support coordinator has made numerous attempts to contact Ms Hoolachan with limited success.[21] It is, however, outside the scope of this decision and reasons to address those issues substantively. The Tribunal can only encourage the parties to communicate with one another constructively in the future.
[19]Transcript page 89; Exhibit 10 pages 23 and 25.
[20]Transcript pages 38 – 39.
[21]Transcript page 21.
At the outset Mr Hawker stated generally as follows:
… the submissions advanced on behalf of the agency in terms of what remains in dispute are largely advanced on the basis that there is no probative evidence to support the support or the claim or the increase.[22]
[22]Transcript page 10.
The Tribunal has dealt with each of the supports, in respect of which Ms Hoolachan claims that section 34 of the NDIS Act has been met, in turn, in the order in which they were raised at hearing.
Increased funding for transport
Ms Hoolachan gave evidence that she receives $94.00 per fortnight from the NDIS for transport.[23] She has also been the beneficiary of a Taxi Subsidy Scheme and Lift Payment Card,[24] in respect of which she fears she is about to be refused access,[25] and she has also received transport at $2.00 or $2.50 per trip from her home to the shopping centre, paid for by the local council and the local shopping centre to increase access to the community for people with a disability and help small businesses.[26]
[23]Transcript pages 31 and 35.
[24]Transcript pages 30 – 31.
[25]Transcript pages 30 and 84.
[26]Transcript page 83.
Ms Hoolachan also gave evidence that she has a manual wheelchair which is not suitable to cross a road which means she cannot use it to access the local bus as the bus stop is across the road.[27] She also gave evidence that she has had a scooter since about a month before the hearing,[28] however, she has not yet been able to use it because registration plates have not been affixed and she has to do that herself as she does not have a support coordinator,[29] and accordingly her use of it has not yet been assessed by an occupational therapist as safe in terms of using public transport.[30] As to using the scooter directly to get to Grand Central Shopping Centre (“Grand Central”), a shopping centre frequently accessed by Ms Hoolachan, she expressed some concerns about the suitability of the footpaths for that purpose,[31] the distance (which she stated to be two kilometres)[32] needing to be travelled,[33] and whether the incline of the footpath would be problematic.[34]
[27]Transcript page 76.
[28]Transcript page 34.
[29]Transcript page 33.
[30]Transcript page 31.
[31]Transcript page 33.
[32]Transcript page 33.
[33]Transcript page 33.
[34]Transcript page 34.
Ms Hoolachan stated that the main benefits of the scooter would be that it will be “brilliant” for getting around Grand Central,[35] and will help her to access numerous places around Grand Central such as the library, butcher and vegetable barn to which access was previously not practical as she would have had to take a Maxi Taxi between each of them which was too expensive. Ms Hoolachan acknowledged that she would not be able to have a final position on transport funding for the future (a matter not before the Tribunal) until she had established the effectiveness of the scooter.[36]
[35]Transcript page 34.
[36]Transcript page 34.
Ultimately, Ms Hoolachan’s position, through her evidence in chief, was that she was out of pocket for Maxi Taxis relating to a period when she did not have the Taxi Subsidy Scheme and Lift Payment card.[37] She was also concerned that she had had to make more trips to the shops than she otherwise would have for a period when she did not have all of her belongings moved from her previous home to her current one.[38]
[37]Transcript page 35.
[38]Transcript page 37.
The Tribunal notes that Ms Hoolachan placed before the Tribunal a bundle of documents incorporating emails and statements which included the following (unedited):[39]
I average 4x trips out a week at approx. $30return. The trips to the hospital are at a cheaper rate one way $11, but on those days I also combine with another trip to Clifford Gardens shop ctr that has an auspost shop or the lifeline shop Perth Street. The result again roughly a $30 round trip. The $50 trip an abnormality as I don't normally travel peak period - that was for the NDIS steer group meeting with Senator Bartlett. My use of the offpeak preferred option of travel has been financially motivated & speaks reams about the inadequacy of my travel choices under NDIS support. Hence more than being in the wheelchair NDIS has greatly affected my social life.
I did not receive a Qld Government TSS card until early February 2018, because the weren't accepting new applications as NDIS was supposedly adequately supplying - it wasn't. Qld government changed their policy on TSS card provision because it was obvious NDIS were not performing. I was approved 25 October, 2017 for NDIS and the NDIS Plan (not mine) effective 1st December, 2017.
The Applicant notes that in an insurance company claim. Monies are paid for outlays from the very least the date the claim was approved. The first transport allowance pay was received well after 25 October 2017 event. A deposit of $67.50 on 20 December, 2017 then the normal fortnightly pay of $94.50 on 22 December, 2017. At NDIS instead of them paying you back to the date you lodged a claim, it is advantageous financially for them to stuff you around with "your plan" issue as long as possible. Even once Plan is activated you then on NDIS have to pay upfront and hope they'll pay you back an absolute minimum of two (2) weeks later. When this is a recurring transaction it's a disgrace.
The Applicant considers she was very lucky & is very grateful that the Qld government stepped in and approved hospital Transition Care to assist while NDIS got their act together. This was then extended for the absolute maximum allowable under their funding until 15 January, 2018, because NDIS did not get their act together. Even with the subsidy card I have trips where I have no alternative but to use an ordinary taxi because of doctors appointments & availability where I have to pay full price because the ordinary Taxi's don't use have the TSS card machine training. Normally, these trips would be organised by the NDIS approved support worker who like everything else re NDIS is missing in action. In an ordinary taxi these trips take ages because I have to show untrained taxi drivers how to collapse the wheelchair and it is too large for taxi boots. They are an absolute last resort. It is Commonwealth governments responsibility for my wheelchair transportation - no part is the Qld governments responsibility. The applicant maintains her estimate of an annual budgeted transport amount of $6,000 which equates to 3.82 return trips per week [($6,000/52wks)/$30 round trip] is a fairer estimate to meet her needs of approx. 4 trips a week allowing for the high public holiday weeks Easter & Xmas. A higher value must in fact be within community expectation for travel allowance as in 2015 the average of the Qld Commonwealth MP representatives car allowance exceeded the value.
The applicant was assisted with shopping trips & doctor visit etc and Centrelink trips by Transition Care workers until 15 January, 2018, who assisted in meeting the gross NDIS funding shortfall for wheelchair transport for her area. The Applicant is mindful that the Queensland government has gone the extra mile but the responsibility was clearly the Commonwealth Governments. She believes the prorata of the $6,000 annual amount less payments made by NDIS upto and including 15 January 2018 should be returned to excellant Transition Care not for profit as the arm of the Queensland Government whose budgetary outlays are always used to the advantage of the community health care. At no time during Transition Care did the Applicant have Taxi Subsidy Scheme (TSS) card. After the 15th January, 2018 the prorata for period $6,000 value less the total paid by the TSS card which she assumes would have been claimed by the Qld government. As the Applicant has travelled in ordinary taxi's in that period comparing the TSS value is not an option).
The Applicant also notes that she is not impressed that she had to even collect taxi and other receipts as this is a paid activity by the NDIS approved Support Coordinator. The aforesaid selected from Carers Queenslands choice list.
[39]Exhibit 10 pages 23 and 25.
Under cross-examination, Ms Hoolachan confirmed that she was seeking reimbursement for money she claimed she had outlaid which should have been the responsibility of the NDIS.[40] She noted at the time of hearing that she was unable to comment upon transport funding for the future, as the effectiveness of the mobility scooter had not at that point been trialled.[41] The Tribunal notes, that in any case, that is a matter which is not before it. Notwithstanding that acknowledgement at times during cross-examination, Ms Hoolachan asserted that she could use the scooter to get around Grand Central and access other destinations in “the community” from there, but that she needed to be taken at least to the community in a Maxi Taxi.[42] She also suggested that the distances she should be expected to travel by scooter were limited by the impact of travelling by such a means upon her appearance, in terms of her hair and make-up,[43] and that she cannot take her mobility scooter everywhere.[44]
[40]Transcript pages 74 and 82.
[41]Transcript page 82.
[42]Transcript page 71.
[43]Transcript page 68.
[44]Transcript page 71.
Ms Hoolachan was referred to attachment B of the NDIA’s Amended Statement of Facts, Issues and Contentions dated 1 April 2019,[45] which is a bundle of printouts from Google Maps identifying the distance from Ms Hoolachan’s home to various places in Toowoomba, and the potential routes to be taken from her home to those places. The places are identified, with relevant distances as follows:
·Ms Hoolachan’s home to Grand Central: 2.6 km.
·Ms Hoolachan’s home to the hospital, South Toowoomba: 1.7 km.
·Ms Hoolachan’s home to Grand Central Medical Centre: 2.1 km.
·Ms Hoolachan’s home to Centrelink: 2.8 km.
[45]Exhibit 2.
Ms Hoolachan was also referred to attachment A to the NDIA’s Amended Statement of Facts, Issues and Contentions dated 1 April 2019,[46] which is a brochure about the mobility scooter which has been supplied to Ms Hoolachan. Mr Hawker confirmed with Ms Hoolachan that the mobility scooter was able to travel 47 km.[47] Ms Hoolachan reiterated that her ability to use the mobility scooter had so far been impeded by the absence of anyone with whom to trial it over those distances and routes,[48] and the fact that the registration plates had not yet been affixed to the mobility scooter.[49] Ms Hoolachan maintained that she needed a support coordinator or someone from the NDIA to organise an assessment and to affix the registration plates. In this regard, Ms Hoolachan acknowledged that there was funding in her plan (capacity building) for an occupational therapist to assist her.[50]
[46]Exhibit 2.
[47] Transcript page 71.
[48]Transcript pages 71 – 72.
[49]Transcript page 73.
[50]Transcript page 70.
Ms Hoolachan asserted that she had been unable to obtain the services of a support coordinator – she claimed her initial support coordinator “was allowed to disappear off the face of the earth”,[51] and her second support coordinator was “advised by the NDIS that there was no money left on her plan.”[52] Mr Hawker submitted in this regard that the (second) support coordinator had made numerous attempts to contact Ms Hoolachan.[53]
[51]Transcript page 18.
[52]Transcript page 20.
[53]Transcript page 21.
In terms of travelling further afield, Ms Hoolachan was asked questions about her ability to access public transport. She acknowledged that she “would use public transport if [she] knew [she] could use public transport.”[54] Ms Hoolachan also expressed doubts about whether public transport by buses was generally available. When the Translink Accessibility Information[55] was put to Ms Hoolachan she described it as “propaganda,”[56] and enumerated a number of instances in which she had found facilities described as accessible to be inaccessible.[57] Whilst it is acknowledged that improvements to accessibility can no doubt be made across many domains, that is not a matter which is before the Tribunal, and nor is the question of future transport needs, howsoever they crystallise, after appropriate occupational therapy assessment and capacity building. Furthermore, rule 7.22 of the Rules, which is set out above, states as follows:
7.22 The NDIS will not be responsible for:
(a)ensuring that public transport options are accessible to a person with disability, including through the funding of concessions to people with disability to use public transport; or
(b)compliance of transport providers and operators with laws dealing with discrimination on the basis of disability, including the Disability Standards for Accessible Public Transport 2002; or
(c)transport infrastructure, including road and footpath infrastructure, where this is part of a universal service obligation or reasonable adjustment (including managing disability parking and related initiatives).
[54]Transcript page 75.
[55]Exhibit 15.
[56]Transcript page 79.
[57]Transcript pages 76 – 77 and 79.
In any case, in the future, it may be that the mobility scooter will enable Ms Hoolachan to access the community with far less reliance on Maxi Taxis either because she can use the mobility scooter for access to much of the community directly, or by using public transport. Thus the availability or otherwise of the Taxi Subsidy Scheme and Lift Payment Card may become irrelevant.
Further aspects of Ms Hoolachan’s claims seem to involve the Queensland Government’s Taxi Subsidy Scheme and Lift Payment Card. Ms Hoolachan variously asserted that she had not received that for the first two to three months of her being a participant in the NDIS, and therefore should be reimbursed for additional costs she incurred (during that time), which costs were subsequently covered by the Taxi Subsidy Scheme and Lift Payment card.[58] However, Ms Hoolachan also told the Tribunal that she had not retained any receipts during that period – she said “I shouldn’t have been having to keep receipts.”[59] Ms Hoolachan was of the view that an NDIA representative, by which I understand her to mean support coordinator, should provide the receipts as part of their care to her.[60] It would seem that Ms Hoolachan did not consider it her responsibility to retain receipts, in order to pass them on to a support coordinator for the purposes of reimbursement, other than to the extent to which she was requested to provide them “as part of the in conference thing.”[61] The Tribunal notes, with respect to transport receipts, it has before it copies of eight or perhaps nine (the photocopying is unclear) taxi receipts of various dates and times, including at least four dated variously 20 and 28 February 2018, and March 2018 and April 2018 reflecting that Ms Hoolachan, at least for those journeys, was the recipient of the Taxi Subsidy Scheme.[62]
[58]Transcript pages 86 – 87.
[59]Transcript page 89.
[60]Transcript page 89.
[61]Transcript page 82.
[62]Exhibit 10 pages 24 and 26.
The Tribunal notes that, at Hearing, Ms Hoolachan suggested that even with the Taxi Subsidy Scheme and Lift Payment Card, sometimes her journey “goes over that – over the amount.”[63] She also objected to the provision of her transport funding being in arrears.[64] Furthermore, Ms Hoolachan also suggested that sometimes a Maxi Taxi was not available, in which case the Taxi Subsidy Scheme and Lift Payment Card could not be used.[65] However, as already canvassed, there is no evidence supporting the extent to which, if any, Ms Hoolachan is out of pocket. Indeed, it is possible that Ms Hoolachan has conflated transition care provided by Queensland Health, after discharge from hospital, with the reasonable and necessary supports provided by the NDIS. During cross-examination, when asked by Mr Hawker whether she retained receipts for the relevant period, Ms Hoolachan responded “I don’t need to have receipts for that period of time. That was your paid job, your agent’s paid job to do that.”[66] In response to a question from Mr Hawker as to whether Ms Hoolachan provided receipts to anyone, she stated:
I don’t need to. They were supposed to have provided me, right, as part of my community awareness, right, they were supposed to actually gone with me to the different places to show me – help me get used to the community, right. That was something that was in the significant help, I think it was, in the community was one of the things that was in my discharge letter from hospital of my needs. They were supposed to help me go into the community, help me with shopping, carrying things, right. They should’ve been with me at the side of me and taking any receipts.[67]
[63]Transcript page 85.
[64]Exhibit 10 pages 23 and 25.
[65]Exhibit 10 pages 23 and 25.
[66]Transcript page 92.
[67]Transcript page 92.
For completeness, I note that Ms Hoolachan made further submissions regarding the Taxi Subsidy Scheme and Lift Payment Card, including specifically that the Queensland Government should not have provided the care – it was an NDIS responsibility.[68] She also expressed concern that the Taxi Subsidy Scheme and Lift Payment Card were likely to be discontinued, and that therefore her transport funding needs would be even greater.[69] Also, for completeness, I note that Ms Hoolachan linked her claim for $6,000.00 for transport to an amount she claims is the average car allowance of Queensland Federal Parliamentarians as of 2016.[70] I observe that neither of the points canvassed in this paragraph advanced the Hearing – the fact is Ms Hoolachan received assistance from Transition Care until 15 January 2018[71] and the Taxi Subsidy Scheme and Lift Payment Card from at least early February 2018,[72] having become a participant in the NDIS in December 2017. As already stated, future funding for transport is not a matter before the Tribunal and, as acknowledged by Ms Hoolachan,[73] cannot be considered until the efficacy of the mobility scooter has been established and capacity building undertaken.
[68]Transcript page 88.
[69]Transcript page 11.
[70]Transcript page 93.
[71] Exhibit 10 pages 23 and 25.
[72]Exhibit 10 pages 23 – 26; Transcript page 87.
[73]Transcript page 82.
Therefore, to summarise the chronology of what has occurred with respect to transport funding:
·On 25 October 2017, Ms Hoolachan became a participant in the NDIS.[74]
·On 1 December 2017, Ms Hoolachan’s plan commenced, including reasonable and necessary supports of $2,472.00 for transport and an unspecified amount (“awaiting quote”) for assistive technology which contemplated, amongst other supports, provision of a manual wheelchair, and in the interim, rent of a wheelchair, but did not contemplate a mobility scooter.[75]
·On or about 14 or 18 December 2017, Ms Hoolachan started receiving payments in arrears of $94.00 per fortnight for the transport support, with an initial adjusted payment.[76]
·On 15 January 2018, Ms Hoolachan ceased receiving assistance by way of Transition Care from the Queensland Government. In this regard she states that her funding was “extended for the absolute maximum allowable under their funding until 15 January, 2018, because NDIS did not get their act together.”[77] She stated that “the applicant was assisted with shopping trips and Dr visit et cetera and centrelink trips by transition care workers until 15 January, 2018 who assisted in meeting the gross NDIS funding shortfall for wheelchair transport for her area.”[78]
·By early February 2018[79] Ms Hoolachan became the beneficiary of a Queensland Government Taxi Subsidy Scheme and Lift Payment Card, reducing the amount she had to pay for transport in, at least, Maxi Taxis.
·Ms Hoolachan also availed herself of, to an unspecified extent, reduced cost ($2.00 or $2.50) transport to and from Grand Central provided by the local council and shopping centre.[80]
·Ms Hoolachan received wheelchair rent up until 3 December 2018, and the NDIA has indicated a willingness to reimburse her for any further rent properly incurred beyond that date, upon receiving the receipts and invoices for same,[81] and Ms Hoolachan has indicated an ability and willingness to provide them.[82]
·On 24 February 2019, Ms Hoolachan’s reasonable and necessary supports were varied by the Tribunal with the consent of the parties, inter alia, to include that Ms Hoolachan be provided with a mobility scooter and to crystallise the cost of the wheelchair with which she was to be provided.
·Ms Hoolachan received the mobility scooter about a month before the Hearing and had registered it, but had not yet affixed the registration plates, nor had she trialled it with an occupational therapist using the capacity building budget in her plan.[83]
·Ms Hoolachan received her current wheelchair about a week before the Hearing.[84]
[74]T documents page 48.
[75]T documents page 67.
[76]Transcript page 83; Exhibit 10 pages 23 and 25.
[77]Exhibit 10 pages 23 and 25.
[78]Exhibit 10 pages 23 and 25.
[79] Exhibit 10 pages 23 and 25.
[80]Transcript page 83.
[81]Transcript pages 16 and 98.
[82]Transcript page 62.
[83]Transcript pages 33 – 34.
[84]Transcript page 17.
As is evident from what is set out above, much of what has been traversed at Hearing, and that contained in Ms Hoolachan’s Amended Statement of Facts, Issues and Contentions dated 15 April 2019, did not deal with the matters properly before the Tribunal. Specifically it did not deal with whether Ms Hoolachan’s claim for increased funding for transport meets the requirements of section 34 of the NDIS Act. The position may be further refined, having regard to the evidence and submissions, notwithstanding that they are diffuse and inconsistent at times. The question may be, in relation to funding for transport, whether Ms Hoolachan should be reimbursed for money she claims to have spent between the inception of her NDIS plan, and receiving the Taxi Subsidy Scheme and Lift Payment Card, a period of at most three months. However, based on Ms Hoolachan’s own evidence, namely the statement put before the Tribunal at page 23 of Exhibit 10 that she “was assisted with shopping trips & doctor visit etc and Centrelink trips by Transition Care workers until 15 January, 2018”, the question becomes whether Ms Hoolachan should be reimbursed for money spent on taxis between 15 January 2018 and early February 2018, a period of a few weeks. In that regard, there is simply no satisfactory evidence before the Tribunal to enable it to calculate what, if any, shortfall there has been. Furthermore, it is unclear whether during that period Ms Hoolachan took advantage of the $2.00 or $2.50 trips provided to the local shopping centre by the local council and local shopping centre. Accordingly, it is not possible to be satisfied as to the extent, if any, to which Ms Hoolachan has been out of pocket in relation to transport funding.
Based on the evidence before the Tribunal, it is simply not possible to calculate whether there was in fact a shortfall in transport funding owing to Ms Hoolachan, such that she should be reimbursed in that regard. It is not possible to quantify the support sought, or to determine whether it is reasonable and necessary, having regard to the remarks of Mortimer J in McGarrigle[85] as follows:
[93] In my opinion, the text and context of s 33(5)(c), read with s 34(1) indicates that the CEO (or the delegate or Tribunal) must either be satisfied that a support has the character of being a reasonable and necessary support, or that it does not. Once a support is identified and described (to take an example away from this case, speech therapy lessons three times a week), then the question for the CEO (or the delegate or Tribunal) is whether she or he is satisfied that support, as identified, is reasonable and necessary for that particular participant. It may be open to the CEO to be satisfied that a differently identified support is reasonable and necessary: in this example, speech therapy lessons once a week. That determination can only be made on the basis of probative evidence.
[85][2017] FCA 308 at [93].
Accordingly, without probative evidence, the Tribunal cannot be satisfied that the criteria set out in subsection 34(1) of the NDIS Act are met in relation to increased funding for transport.
Incontinence pads/consumables
As noted in paragraph 15 of these Reasons, Ms Hoolachan’s plan includes an allowance for incontinence pads/consumables. Ms Hoolachan maintains that she has never received a single incontinence pad.[86] The NDIA’s position is that there is an amount allocated in Ms Hoolachan’s statement of participant supports which she has not used,[87] and no evidence before the Tribunal as to what further amounts are reasonable and necessary.[88] Ms Hoolachan explained that she had expected that her support coordinator would arrange for special incontinence pads to be delivered to her (as had been arranged while she was in “Transition Care”).[89] Ms Hoolachan told the Tribunal that she had bought all her own incontinence pads and that they were not the specialised ones she claimed she should receive. She said they should be bought in bulk from overseas.[90]
[86]Transcript page 38.
[87]Transcript page 38.
[88]Transcript page 97.
[89]Transcript page 38.
[90]Transcript page 39.
Ms Hoolachan stated that she had been assessed in hospital as needing certain types of incontinence pads, but had not been similarly assessed by an “NDIS approved incontinence person”, because she did not have a support coordinator.[91] Mr Hawker, for the NDIA, told the Tribunal that Ms Hoolachan had a sum of $2,257.00 for support coordination for the period December 2017 to February 2019 which remained unused,[92] and furthermore, if Ms Hoolachan wanted a support coordinator to organise a service to deliver the pads she would need to enter into a contract to do so, but had not in fact done that.[93] Ms Hoolachan remained adamant that she had been unable to access a support coordinator for that period.[94] Mr Hawker explained that the support coordination budget since that date was being used by a recently appointed support coordinator, who reported difficulties contacting Ms Hoolachan.[95] It is clear that there have been difficulties experienced by Ms Hoolachan in accessing a support coordinator, and that even when she has had one appointed, there have been difficulties in communication between the two.
[91]Transcript page 39.
[92]Transcript page 40.
[93]Transcript page 41.
[94]Transcript page 42.
[95]Transcript page 42.
Ms Hoolachan said that the upshot was that she had been buying her own incontinence pads, and had not saved the receipts in that regard.[96] Ms Hoolachan maintained that that was because she was uncertain as to whether she would be entitled to such products given she had not had an assessment from an NDIS incontinence nurse.[97] Mr Hawker submitted that it was acknowledged in the supports specified in the plan approved on 4 December 2017 that incontinence pads were contemplated, and therefore an assessment in that regard was not necessary.[98]
[96]Transcript page 42.
[97]Transcript page 43.
[98] Transcript page 43.
Having regard to the provisions of subsection 34(1) of the NDIS Act which are set out above, the relevant paragraph for consideration with respect to incontinence pads is subparagraph 34(1)(c) which deals with 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.” Thus the question is whether further funding with respect to incontinence pads constitutes value for money as contemplated by the NDIS Act.
Given that there remains unspent funding for core supports expressly including “personal continence products”, I am unable to conclude that further funding for incontinence products represents value for money.
Physiotherapy
Ms Hoolachan gave similar evidence regarding physiotherapy. She said that “Transition Care” advised her that she needed physiotherapy and it should have been organised by her support coordinator, but, due to the difficulty she has had in accessing her support coordinator, that has not occurred.[99] Ms Hoolachan also explained that she thought physiotherapy would be helpful in building up her strength, particularly as she hopes she can use crutches to access a wider range of potential workplaces.[100]
[99]Transcript page 47.
[100]Transcript page 48.
Mr Hawker, on behalf of the NDIA, referred the Tribunal to the NDIA’s Statement of Facts, Issues and Contentions, and submitted that Ms Hoolachan had been provided with funding of $7,454.73 for “improved daily living” which included “funding for individual assessment, therapy and/or training (including quotes for assistive technology). Allied health professional assessment, sourcing, training and report completion.”[101] Mr Hawker submitted that none of that funding had been accessed.
[101]Exhibit 1 page 68.
Having regard to the provisions of subsection 34(1) of the NDIS Act which are set out above, the relevant paragraph for consideration with respect to physiotherapy is subparagraph 34(1)(c) which deals with 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.” Thus the question is whether further funding with respect to physiotherapy constitutes value for money as contemplated by the NDIS Act.
Given that there remains unspent funding for improved daily living (which includes “therapy”), I am unable to conclude that further funding for physiotherapy represents value for money.
Gym membership
Ms Hoolachan told the Tribunal that she proffered the suggestion of gym membership as an alternative to physiotherapy as she was not satisfied that there were “enough people working in [her] area.” She said that she thought gym membership might be a way of undertaking exercise as she was not getting any help to do so in her home, and she cannot exercise alone as she needs someone to assist and support her,[102] such as would be available in the gym.
[102]Transcript pages 48 – 49.
Mr Hawker clarified whether Ms Hoolachan had any further material she wished to put before the Tribunal which might assist in this regard, and submitted that there is no medical or other adequate evidence before the Tribunal supporting the provision of funding for a gym membership as being related to Ms Hoolachan’s disability and support needs or indeed any likely functional outcomes. In the interests of accuracy, the Tribunal notes the NDIA’s Statement of Facts, Issues and Contentions refers to the case of Milburn v National Disability Insurance Agency (Milburn)[103] as authority for the proposition that “In broad terms, a gym membership is a cost in the nature of discretionary spending.” Deputy President Constance in Milburn stated, with respect to gym membership, “In my view, it is in the nature of discretionary spending for those who do not suffer a disability … I am satisfied that in Ms Milburn’s case, it is attributable to her support needs.” (Emphasis added)
[103][2018] AATA 4928 at [73].
In this case, unlike in Milburn, there is no probative evidence before the Tribunal to support provision for funding gym membership as a reasonable and necessary support in accordance with the provisions of the NDIS Act, and accordingly the Tribunal is unable to conclude that funding for gym membership meets any of the requirements of s.34(1) of the NDIS Act.
Special shoes
Ms Hoolachan told the Tribunal she needed ‘special shoes’ to accommodate the very thick wrap she needs to wear around her foot including long ‘Velcro’ straps.[104] Ms Hoolachan stated that she relied on the advice of the Transition Care team in that regard. Mr Hawker submitted that Ms Hoolachan had not provided details as to the amount she says is reasonable and necessary with respect to funding ‘special shoes’, nor has she provided any adequate medical or other evidence in support of the provision of the shoes.[105]
[104]Transcript pages 59 – 60.
[105]Transcript page 98.
There is no evidence before the Tribunal supporting the provision of ‘special shoes’. ‘Special shoes’ may indeed be appropriate, but Ms Hoolachan has not provided probative evidence in that regard. Accordingly, on the basis of the evidence currently before the Tribunal, the Tribunal cannot be satisfied that ‘special shoes’ meet the requirements of a reasonable and necessary support under subsection 34(1) of the NDIS Act.
Medical alert (life buzzer) – St John
Mr Hawker, on behalf of the NDIA made the following submissions in closing:[106]
The only point which, having heard the evidence today, the agency is prepared to identify is a point that, providing there is sufficient receipt in the material that it would meet the criteria to add the funding, would be for the life buzzer St John’s monitoring and the tribunal has the benefit of having the evidence from the applicant with respect to the benefits that that provides over against just having the mobile phone. You heard evidence about the range at home, but equally the benefits with respect to during the shower and all the rest of it, and because of the time we’re just attempting to try and find if we’re able to point to the invoice in the material that documents the amount for that. So perhaps while I continue with the balance of the submissions - - -
[…]
- - - if we can point you to that. Working through the - it’s just been handed to me. It’s exhibit 10, the bundle of material, and the - page 31 has the 26 dollar cost and the original $110 that Ms Hoolachan spoke about is found on page 38. There’s a St John’s tax invoice there.
[…]
That’s a point, in my submission, that’s made by the agency which is reflective of the fact that where there is the appropriate evidence or the probative evidence before the tribunal that it’s appropriate to make that acknowledgement.
[106] Transcript pages 95 – 96.
In his closing submissions, Mr Hawker also stated:[107]
The only caveat on that is that there’s been an acknowledgement with respect to the St John’s life buzzer funding with reference to the receipts, and in our submission it’s appropriate to make the variation to allow for that.
[107] Transcript page 98.
In considering those submissions, the Tribunal observes that:
·Ms Hoolachan became a participant in the NDIS on 25 October 2017;[108]
·The invoice before the Tribunal with respect to the medical alarm from St John is dated 23 October 2017 and the Tribunal notes the due date as 20 October 2017;
[108] T Documents page 48.
In my view it is unclear from the transcript whether Mr Hawker intended to agree to paying for the ongoing costs associated with the medical alarm, or those and the cost of purchasing the alarm. However, the NDIS Act is clear as to the sequence of events in relation to establishing whether a support meets the requirements of subsection 34(1) of the NDIS Act. Pursuant to subsection 32(1) of the NDIS Act, the CEO must facilitate the preparation of the participant’s plan if a person becomes a participant (emphasis added). Section 33 of the NDIS Act sets out those matters which must be included in a participant’s plan, including, pursuant to subsection 33(2), the statement of participant supports. The Rules reiterate the sequence of events in terms of a person becoming a participant and then receiving a plan. In particular, Rule 2.1 of Part 2 “Outline of these Rules” of the Rules states:
Introduction to supports for participants
2.1Once a person becomes a participant in the NDIS, they develop a plan with the Agency. The plan comprises two parts…
(a)the participant’s statement of goals and aspirations, which is prepared by the participant and specifies their goals, objectives, aspirations and circumstances; and
(b)the statement of participant supports, which is prepared with the participant and approved by the CEO, and sets out, among other matters, the supports that will be provided or funded by the NDIS.
(my underlining)
Accordingly, the Tribunal does not consider that a support purchased prior to a person becoming a participant in the NDIS may be included as a support under a participant’s plan. Irrespective of the submissions made by Mr Hawker the Tribunal has no power to specify funding for supports obtained by Ms Hoolachan prior to her becoming a participant in the NDIS. Therefore, while the Tribunal is satisfied that the ongoing payments with respect to the medical alarm meet the requirements of a reasonable and necessary support as defined in the NDIS Act, the Tribunal is not satisfied that the purchase of the medical alarm by Ms Hoolachan may be included in the statement of participant supports in her plan.
Wheelchair rent
Wheelchair rent was discussed at paragraph 42 above. As at the date of the Hearing, it was paid up until December 2018, and Mr Hawker indicated that the NDIA was willing to pay all outstanding rent pending receipt of the invoices. No evidence was provided by Ms Hoolachan of the need for additional funding for wheelchair rent as a reasonable and necessary support. Accordingly, I am not satisfied that there is any basis for increasing Ms Hoolachan’s funding in that regard.
Other matters
It is clear from the Hearing that Ms Hoolachan has expectations of the NDIS which have not been met. Many of those expectations are not matters in respect of which the Tribunal has jurisdiction. Furthermore, Ms Hoolachan is, as is common to all participants in the NDIS, obliged to comply with the NDIS Act and the relevant Rules, and, where not inconsistent therewith, the Operational Guidelines. Similarly, the Tribunal must apply the NDIS Act, the Rules and, where not inconsistent therewith, the Operational Guidelines. Accordingly, while the NDIS Act must be read in light of the Objects which, inter alia, recognise the importance of people with a disability being able to exercise choice and be independent, it does not mean that supports will be provided without due reference to the requirements of the NDIS Act and Rules.
CONCLUSION
Taking into consideration all of the evidence before the Tribunal, the Tribunal is satisfied that the ongoing costs associated with the Medical Alert meet the criteria as set out in subsection 33(5) and subsection 34(1) of the NDIS Act as a reasonable and necessary support, and should be specified in Ms Hoolachan’s statement of participant supports. The Tribunal is not satisfied that there is any probative evidence to suggest that any of the other additional supports sought by Ms Hoolachan, over and above those supports which are already specified in Ms Hoolachan’s statement of participant supports which is the subject of this review, meet the requirements of the NDIS Act.
DECISION
For the reasons given above, the Tribunal varies the reviewable decision dated 12 January 2018 to specify the provision of the ongoing costs associated with a Medical Alert (life buzzer) – St John in Ms Hoolachan’s statement of participant supports.
I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member F Meagher |
..............................................................
Associate
Dated: 19 November 2019
| Dates of hearing: | 23 January 2019; 7 May 2019 |
The Applicant: | In person |
| Counsel for the Respondent: | Mr Matthew Hawker |
| Counsel for the Respondent instructed by: | Ms Christine Halls, National Disability Insurance Agency |
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