HTDD and National Disability Insurance Agency

[2024] AATA 725

HTDD and National Disability Insurance Agency [2024] AATA 725 (12 April 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2022/6251

Re:HTDD

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member J Collins

Date:12 April 2024

Place:Brisbane

Pursuant to section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with a direction that within 28 days of this decision HTDD’s statement of participant supports specifies for Specialist Disability Accommodation as follows:

·SDA Building type: Villa/Townhouse, 1 resident

·Design Category: Robust (with breakout space)

·Location: Queensland Statistical Area (SA4), 304 (QLD – Brisbane- West).

.............................[SGD].............................

Senior Member J Collins

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – Specialist Disability Accommodation - whether Applicant is eligible for SDA - whether Applicant has extremely reduced functional capacity or psychosocial functioning in undertaking self-care and self-management – psychosocial impairment - whether Applicant has high need for person-to-person supports in undertaking self-care and self-management – whether Applicant meets SDA needs requirement – whether SDA is a reasonable and necessary support - what form of SDA is appropriate if Applicant is eligible  - Robust class - decision set aside and remitted.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) section 43
National Disability Insurance Scheme Act 2013 (Cth) sections 3, 4, 34, 100, 103, 209
National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020
National Disability Insurance Scheme (Supports for Participants) Rules 2013

Cases

G v Minister for Home Affairs [2019] FCAFC 79
G v Minister for Immigration and Border Protection [2018] FCA 1229
MDCT and National Disability Insurance Agency [2022] AATA 697
Mulligan v NDIA [2015] FCA 544; (2015) 233 FCR 201
National Disability Insurance Agency v Foster [2023] FCAFC 11

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577

Secondary Materials

The Applied Principles and Tables of Support to determine the responsibilities of the NDIS and other service systems dated 19 April 2013
Australia’s Disability Strategy 2021-2031
NDIS Operational Guidelines – Specialist Disability Accommodation, as of 25 July 2022
Queensland Housing and Homelessness Action Plan 2021-2025

REASONS FOR DECISION

Senior Member J Collins

12 April 2024

1. HTDD is a 52-year-old woman and a participant of the National Disability Insurance Scheme (‘the Scheme’). HTDD is homeless and has effectively been so for the past 10 years.

2. HTDD was granted access to the Scheme on the basis of her psychosocial impairments.[1]

   [1] R2: Respondent’s First Statement of Issues dated 26 October 2022.

3. On 17 June 2021 a delegate of the National Disability Insurance Agency (‘the Agency’) conducted an unscheduled review of HTDD’s plan. At the time of this review HTDD sought funding for Specialist Disability Accommodation (‘SDA’).

4. SDA is defined as follows:[2]

   ‘accommodation for a person who requires specialist housing solutions, including to assist with the delivery of supports that cater for the person’s extreme functional impairment or very high support needs’.

   [2] Rule 5, National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth).

5. In support of HTDD’s request for SDA funding a report of Mr Greg Barry, Senior Consultant SDA Services, dated 21 May 2021 was provided to the Agency. Mr Barry’s recommendation for HTDD was that she be funded for SDA accommodation for a Robust category Villa/Duplex/Townhouse, 1 resident in the Queensland Statistical Area Level 4.[3]

   [3] T Documents, T7: Report of Greg Barry dated 21 May 2021.

6. Following this unscheduled review on 17 June 2021 the Agency approved a Statement of Participant Supports (‘SOPS’) with a review date of 17 June 2022 (‘the 2021 SOPS’).[4] The 2021 SOPS did not however include funding for SDA accommodation and HTDD requested an internal review of that decision.[5] In doing so HTDD repeated her request for funding for SDA. Her advocate stated as follows:[6]

   ‘HTDD remains at significant risk and decline of her functional capacity. HTDD has been homeless since 2013 due to her disability and inaccessible alternate housing options that aggravate her disability. HTDD remains homeless without safe and accessible tenure dues to the decision to decline her SDA application. All alternate housing options have been explored and no other option is accessible and safe for HTDD’s disability.’

   [4] T Documents, T14: NDIS Plan dated 17 June 2021; Section 48, National Disability Insurance Scheme Act 2013 (Cth).

   [5] Section 100(2) NDIS Act.

   [6] T Documents, T12: Application for Review dated 13 September 2021, page 215.

7. On 18 May 2022 the Agency affirmed its original decision (‘the decision under review’) thereby continuing to refuse HTDD funding for SDA.[7] This refusal was on the basis the Agency did not consider that HTDD met the requirements for SDA through the Scheme. The Agency relied primarily upon the NDIS Specialist Disability Accommodation Rules (‘SDA Rules’) maintaining that SDA for HTDD:

   (a)Would not be more effective and beneficial for her when combined with other supports, as compared to other supports alone; and

   (b)Would not be likely to substantially improve her life stage outcomes and be of long-term benefit to her.

   [7] T Documents: T1A; T2.

8. Dissatisfied with this decision HTDD applied to the Tribunal for a review of the decision under review.[8]

   [8] T1; Section 103(2) NDIS Act.

   ISSUES BEFORE THE TRIBUNAL

9. The issues before the Tribunal are whether:

   ·HTDD is eligible for SDA on the basis that it is a reasonable and necessary support for her; and

   ·If so, what type and form of SDA is appropriate for HTDD.

10. Determination of these issues is made pursuant to the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) and several other statutory instruments made under it.[9]

    [9] SDA Rules; Operational Guidelines – Specialist Disability Accommodation; National Disability Insurance Scheme Pricing Arrangements for Specialist Disability Accommodation 2022 – 2023 (1 July 2022) (‘the NDIA Price Guide’).

11. At the hearing both parties were legally represented.

    Contentions

12. HTDD contends that she satisfies the statutory criteria for eligibility for SDA and that the decision under review should be set aside and substituted with a decision that she be funded for SDA as follows:[10]

    ·SDA Building Type: Villa/Duplex/Townhouse, 1 bedroom/resident;

    ·Design Category: Robust (with breakout space);

    ·Location: Queensland Statistical Area Level (SA4), 304 (QLD – Brisbane-West).

    [10] A7: Applicant’s Statement of Facts, Issues and Contentions at [75] and [123].

13. The Agency does not accept that SDA is a reasonable and necessary support for HTDD and contends that HTDD does not meet the mandatory statutory criteria.[11]

    [11] Sections 11, 12, 13, 14(1)(b) and 14(2) SDA Rules; R9: Respondent’s Statement of Facts, Issues and Contentions dated 28 November 2023 at [27] and [28].

14. The Agency also contends that HTDD’s request for SDA ‘goes beyond what is generally provided under the NDIS and is beyond what is reasonable and necessary’.[12] Further, that ‘appropriate support is more appropriately funded or provided through other universal systems and service delivery or supports services offered, as has been demonstrated by her communications with the Housing Department’.[13]

    [12] R9 at [13] and [28].

    [13] R9 at [29].

15. In closing submissions the Agency also submits ‘HTDD asks of the Scheme something that it can neither provide nor does it fall within the ambit of the qualifying provisions. It is certainly not cost-effective and, in its terms, it does not address the impairment.‘[14]

    [14] Respondents Closing Submissions at [23].

THE NATIONAL DISABILITY INSURANCE ACT 2013 (Cth)

1. Section 33 of the NDIS Act stipulates that a ‘Statement of Participant Supports’ (SOPS) must be included in HTDD’s plan for her as a participant in the Scheme. Included in this SOPS are the reasonable and necessary supports that will be funded or provided under the Scheme.

2. Section 34 of the NDIS Act identifies what constitutes a ‘reasonable and necessary support’ for the purposes of the NDIS Act, and provides as follows:

   Reasonable and necessary supports

   (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 NationalDisability 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.

   (2)  The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).

3. Section 34(1) is cumulative and therefore all the criteria must be met.

4. The phrase ‘reasonable and necessary’ is not defined in the NDIS Act. It is a composite phrase and should be considered as such. In McGarrigle v National Disability Insurance Agency (‘McGarrigle’), Mortimer J stated as follows:[15]

   ‘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”.’

   [15] [2017] FCA 308 at [19].

5. Section 35 of the NDIS Act provides for the making of rules in relation to prescribing reasonable and necessary supports that will not be funded or provided under the NDIS. The relevant rules in respect of this review are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘Support Rules’) and the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2013 (‘SDA Rules’).

6. The SDA Rules are of particular relevance in a review of this kind where HTDD’s eligibility for SDA is contested.

   Operational Guidelines

7. Separate from the NDIS Act, the Support Rules and the SDA Rules, the Agency itself issues ‘Operational Guidelines’ in relation to what it considers are ‘reasonable and necessary supports’ for the purposes of a participant’s plan. There is no power conferred by the NDIS Act for the Agency to make these Operational Guidelines, and they are issued in an exercise of executive power.[16] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines.

   [16] G v Minister for Home Affairs [2019] FCAFC 79 at [18].

8. However, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[17] 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. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[18] where Mortimer J held:

   “Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus bring on the purpose and context of the statutory power, not the executive policy framed to guide it …”

   [17] [1979] AATA 179.

   [18] [2018] FCA 1229 at [171].

9. Accordingly, unless the Agency’s Operational Guidelines are inconsistent with the provisions or objects of the legislation they should be considered in a determination of what is a reasonable and necessary support for HTDD.

   EVIDENCE ABOUT HTDD

10. HTDD provided a statement of lived experience in support of her application. She also provided oral evidence at the hearing.

11. Allowances for her sensory sensitivities were made in the hearing room, which was adjusted to have no direct electric lighting and only indirect sunlight such that the blinds in the Tribunal hearing room were positioned to occlude approximately 85% of the natural sunlight.

12. Throughout her oral evidence HTDD was observed to rock, pace and click her fingers continually. I am satisfied that HTDD made a genuine effort to provide honest and truthful evidence without exaggeration. This was despite the indeed adversarial approach adopted by the Agency in respect of her oral evidence including under cross-examination.[19]

    [19] National Disability Insurance Agency v Davis [2022] FCA 1002 at [43] and [46]

13. HTDD also provided reports from a number of expert and other witnesses some of whom also provided oral evidence at the hearing. I will refer to this evidence subsequently in this decision.

14. The evidence overwhelmingly supports, and I accept that HTDD has the following psychosocial conditions:[20]

    ·autism spectrum disorder - level 3 (‘ASD-3’),

    ·post-traumatic stress disorder (‘PTSD’);

    ·severe generalised anxiety disorder (‘GAD’);

    ·severe major depressive disorder;

    ·paranoia complicated by thought disorder; and

    ·avoidant personality disorder.

    [20] A7: Applicant’s Statement of Facts, Issus and Contentions dated 3 November 2023 at [52]; A5: Report of Dr Blair-West dated 23 August 2023. 

15. As a consequence of these conditions HTDD I am satisfied that HTDD is affected by the following impairments: ^[21]

    [21] A7 at [53]; T Documents, T3: Report of Dr Garnett dated 28 February 2020; T4: Report of Dr Lorimer dated 30 October 2020; T5: Letter of Dr Nguyen dated 9 March 2021; T9: Statement of Ms Marie Fitzgibbon dated 9 September 2021; A5: Report of Dr Blair-West; R7: Report of Ms Orla Fox dated 23 August 2023.

    ·extreme tactile sensory processing difficulties;

    ·extreme auditory processing difficulties;

    ·visual sensory difficulties;

    ·severe sensory over-responsivity

    ·inappropriate behaviours including verbal aggression;

    ·avoidant behaviours;

    ·hyper-vigilance, anger and anxiousness;

    ·emotional dysregulation;

    ·social isolation and withdrawal;

    ·poor self-care;

    ·severe deficits in verbal and non-verbal communication; and

    ·inflexible behaviour including difficulty in coping with change.

16. HTDD explained that, in hindsight, these impairments have existed since childhood with an eventual diagnosis of ASD-3 in her forties. She referred also to diagnoses of paranoia and avoidant personality disorder.[22] In particular, HTDD’s diagnosis of ASD-3 has helped her to better ‘understand’ her impairments.[23] She described the following experiences as a child:[24]

    ·Her preference for being in her bedroom as it provided her with a controlled and confined environment with less sensory disruptions;

    ·Hiding in small and confined spaces such as a storage cupboard under stairs which were dark and quiet;

    ·Moving out of her bedroom at the age of ten into a room underneath the family home on the basis her mother had painted her bedroom in bright colours which ‘felt loud’ to her;

    ·Her preference to reside in the room underneath the family home because ‘sensations, noises and colours were more controlled there’;

    ·As a teenager living in a bedroom ‘with a little window in it that I could keep very dark’ and in which she could block out external noises; and

    ·Distress to the point of rage in respect of certain sounds such as a clock ticking or a dishwasher being stacked or unstacked.

    [22] A5(c): Applicant’s Statement of Lived Experience dated 24 August 2023 at [2].

    [23] A5(c) at [123].

    [24] A5(c) pages 2-3.

17. HTDD also explained that her diagnosis of ASD-3 including her sensory difficulties affected her ability to do many things which relate to how as an adult she cares for herself and manages her life.[25] These difficulties included:[26]

    ·Often not feeding herself for several days at a time, due to forgetting to eat and not having an appropriate environment to cook in;

    ·Undertaking grocery shopping in the context of sensory and social issues with the lights, noise, signs and large crowds of shops and shopping centres;

    ·Personal hygiene tasks such as showering, washing clothes, grooming herself and brushing her teeth, which she explained can be ‘impossible’ to manage without the right structures;

    ·Being unable to tolerate a shared bathroom or acoustically harsh surfaces such as a tiled floor;

    ·Buying clothes, dressing herself and changing her clothes; and

    ·Seeing a doctor or health care provider which she finds intrusive, sensorily and socially unpleasant and distressing. Until 2015 HTDD had not seen a dentist for approximately 30 years.

    [25] A5(c) page 12.

    [26] A5(c) pages 12 to 15.

18. At the time of the hearing HTDD was residing in a short-term Airbnb accommodation (‘the Airbnb’).

19. This Airbnb was a temporary arrangement which had commenced on 5 November 2023 and was to conclude on 23 December 2023.[27] HTDD described it as a cottage surrounded by fields and situated approximately 20 meters from a house lived in by the landlord and the landlord’s family.[28] The Airbnb was organised for HTDD by her support coordinator ‘K’ in the context of recent extreme summer temperatures and the fact that HTDD had been living out of her motor vehicle with her dog for the last three months. This arrangement involved HTDD finding parking places to stay each night, in and around her local community.[29]

    [27] Transcript, page 45 lines 40-43.

    [28] Transcript, page 48 lines 2-4.

    [29] A5(c) at [33].

20. HTDD explained that she was grateful for the relief from the heat that the Airbnb provided, noting that it had air-conditioning.[30] She also described the ‘beautiful feeling’ of being able to lock the door of the Airbnb in context of living in a car and tent and not having a door to lock in ten years.[31] She also stated that the ‘best thing’ about having a house to stay in was that her family had been able to come over ‘into my space and I could host them’.[32]

    [30] Transcript, page 60 lines 24-35.

    [31] Transcript, page 48 lines 17-22; page 61 line 18.

    [32] Transcript page 62 line 24 -25

1. Notwithstanding, HTDD explained that she found the Airbnb ‘disturbing’. She doubted she would be able to remain in the Airbnb until the end of the tenancy on 23 December 2023.[33] She explained that the longer she resides in the Airbnb the more uncomfortable she feels; she had however resolved to remain at the Airbnb until the conclusion of the Tribunal hearing.[34]

   [33] Transcript, page 60 line 23; page 61 lines 16-17.

   [34] Transcript, page 61 line 16.

2. In relation to the Airbnb HTDD identified specifically the following as issues for her:

   ·She had developed an antagonistic relationship with the landlord and the landlord’s family. She described them as a ‘pack of liars’;[35]

   ·The Airbnb does not have its own yard that she can access privately. It directly adjoins the landlord’s yard without a fence in between;

   ·She considers that the neighbours do not have control of their dog which is able to run across the yard. She explained that the noise of the neighbour’s dog ‘really aggravates me on lots of different levels’;[36]

   ·The Airbnb has a lot of windows and is ‘very glary’. To avoid this glare HTDD pulls down the blinds, however, there remains cracks of light between the blinds which are ‘like knives’ to her from a sensory perspective.[37] HTDD explained:[38]

   It’s got lots of windows out which is nice if you look out. But actually it’s very glary. So it does have blinds. And I put the blinds down. But then you can’t see out. Also if you put all the blinds in your house down from the outside it looks spooky and unfriendly and sad. On the inside it’s nice and dim. But if you get – you will still get cracks around. And like they are really bright. So it’s like knives. So you can have it dim with knives or you can have it open and sunglasses on. That’s all right. I don’t like not being able to see out. Because we like to look out, if you’re looking out at something nice.’

   ·It has a ‘liar kitchen’ which was a reference to the kitchen rangehood which HTDD stated was ineffective in the ventilation of kitchen smells. HTDD reported that she did not do any cooking in the Airbnb;[39]

   ·On one occasion her sister-in-law visited and cooked a meal in the kitchen of the Airbnb. HTDD was unable to sit inside to eat this meal due to the lingering smell of eggs and bacon, in the context that the rangehood did not ‘clean’ the cooking smell;[40]

   ·It was not located in her community which impacted on how she was able to get food. To buy food she had to go ‘a bit far’ back to her community which has the particular shops she feels able to access.[41]

   [35] Transcript, page 61 lines 4-5

   [36] Transcript, page 61 lines 1-4; page 62 lines 16-17.

   [37] Transcript, page 48 lines 30-35

   [38] Transcript, page 48 lines 29-34.

   [39] Transcript, page 47 line 19-20; page 62 line 39.

   [40] Transcript, page 62 lines 27-29.

   [41] Transcript, page 45 line 45; page 60 lines 27-30.

3. From a positive perspective, HTDD explained that since moving into the Airbnb some six weeks prior:

   ·She had been better able to brush her teeth;[42]

   ·She had taken two showers and during one of these showers managed to wash her hair which she had done specifically in anticipation of the Tribunal hearing;[43] and

   ·On two occasions she had felt able to take her clothes off and take her clothes to a laundromat herself for laundering, rather than her support worker doing this for her.[44]

   [42] Transcript, page 63 lines 42-43.

   [43] Transcript, page 63 lines 39-43.

   [44] Transcript, page 46 lines 7-10 and 23-24.

4. In explaining the significance of these two showers and the laundering of her clothes HTDD explained that ‘my biggest feeling is to keep my clothes on than any other feelings I might have’.[45] In particular she emphasised her reluctance to remove her boots explaining ‘I cannot convey to you how rarely I take my boots off’.[46]

   [45] Transcript, page 64 lines 2-3.

   [46] Transcript, page 65 lines 2-8; page 68 lines 6-7.

5. In her statement of lived experience HTDD detailed her history of various accommodations since leaving her family home at age 16.[47] She has resided in approximately 28 different kinds of accommodations over this period of time. These have included mainstream rental accommodation (including on a shared basis), a tent in the backyard of a property owned by her mother and in a storeroom on the property of a friend.

   [47] A5(c) at [21].

6. HTDD referred to the following reasons in explaining why she had been unable to maintain mainstream accommodation for any length of time: ^[48]

   ·structural features of the accommodations;

   ·environments which have led to conflicts with neighbours;

   ·elements of accommodations that have caused her distress or affected her ability to function,

   ·difficulties negotiating living with housemates (including family members); and

   ·relationships with landlords and agents.

   [48] A5(c) at [22]-[33] and [41].

7. HTDD explained that historically she would stay in an accommodation until ‘things there became unbearable for one reason or other, such as through personal conflicts or the sensory intrusions depleting my capacity.’[49]

   [49] A5(c) at [24].

8. HTDD identified several structural features in accommodation which are vitally important to her need for a relaxed environment, her ability to keep herself ‘regulated’ and which help her to manage ‘unwanted and distressing’ sensory intrusions.[50] These accommodation features were explained as follows:

   ·HTDD finds that ‘noises from outside the home make living there unbearable for me’ explaining that if she cannot exclude external noises she becomes very distressed. HTDD considers this one of her biggest difficulties in finding a home. She requires that any accommodation have sufficient soundproofing in order for her to manage this sensitivity;[51]

   ·HTDD finds tiles ‘acoustically harsh’ as they reflect sound in a manner which ‘overwhelms’ her senses.[52] HTDD stated that she has never lived in a house with tiles and that she never would. HTDD explained her experience of sensory overload in the context of tiles by describing a feeling of ‘sharp sounds’ that go into her ‘like a sharp needle in your ear’ and ‘like an explosion in my chest’;[53]

   ·HTDD finds the reflectiveness of ‘high gloss finishes’ very uncomfortable, visually distracting and ‘noisy’. She described feeling ‘bullied’ by these surfaces.[54] In contrast, timber flooring without a ‘high-gloss’ finish, ‘short’ carpet (with no pile to it), linoleum and other ‘soft’ flooring are suitable options which manage this sensitivity;[55]

   ·Mirrors and mirrored wardrobes ‘dazzle’ HTDD and any reflections in her peripheral vision overwhelm her. HTDD is able only to tolerate the use of a small vanity mirror that she can ‘take out and put away’[56]

   ·HTDD wears a wide brimmed hat and sunglasses in order to reduce glare and visual disturbances;[57]

   ·HTDD finds harsh direct sunlight unpleasant, dazzling and overwhelming. She explained a process that she has utilised historically to manage her light sensitivity. This process involves attaching foil bubble wrap to windows in order to create ‘a nice diffuse and “dreamy” light’;[58]

   ·HTDD becomes ‘unsettled’ by vertical blinds. She finds curtains unpleasant and perceives that they ‘give off dust’. As a result, she has a compulsion to regularly vacuum and wash curtains. HTDD identified timber venetian blinds as suitable to managing this sensitivity; ^[59] and

   ·HTDD is unable to tolerate ‘a lot of colour’ explaining that, for example, a feature wall disturbs her senses. A muted colour scheme manages this sensitivity.[60]

   [50] A5(c) at [57]-[58].

   [51] A5(c) at [41]-[42].

   [52] Transcript, page 67 line 16; A5(c) at [35].

   [53] Transcript, page 67 lines 1-5.

   [54] T Documents, T11: Report of Mr Lachlan Deer and Mr Greg Barry dated 13 September 2021, page 12.

   [55] A5(c) at [35].

   [56] A5(c) at [36].

   [57] T Documents, T11, page 12.

   [58] A5(c) at [43] and [44].

   [59] A5(c) at [43] and [44].

   [60] A5(c) at [47].

9. In addition to identifying the acoustics of tiled floors HTDD finds that the smell of other people in a shared bathroom is sensorily and socially unpleasant.[61] For HTDD tasks such as showering, washing and grooming require an environment that is not distressing to her senses.

   [61] A5(c) at [102] and [103].

10. HTDD finds kitchen smells intolerable. She struggles to use kitchens in the context of insufficient ventilation. HTDD avoids cooking and eating when she cannot control ‘smells’.[62] She will only prepare simple foods like a boiled egg on the basis there is no smell ‘no matter how much you cook it’.[63] HTDD will often not eat for several days as she simply ‘forgets to eat’ if not prompted.

    [62] A5(c) at [37] and [38].

    [63] A5(c) at [93]; Transcript, page 47 line 30.

11. HTDD is unable to tolerate ‘long hallways’ stating that she finds them ‘very upsetting and unsettling in a way that is hard to describe.’[64] HTDD finds that being able to walk around her home in a circular pattern is ‘calming’ and she identifies sufficient room to pace around the house in a loop as an important feature.[65]

    [64] A5(c) at [39].

    [65] A5(c) at [45] and [46].

12. HTDD emphasised the importance to her of having an ‘art practice space’. She finds artwork therapeutic and essential to managing her dysregulation and her mental health.[66] She explained her artwork as:[67]

    ‘the most meaningful and healthy thing that I can do for myself. It is a non-verbal practice that I feel takes my insides and brings them out. Creating art is often a revelation to me, since it helps me to make sense of my own thoughts and feelings and to work out what I am thinking and feeling.

    ……...

    I make art alone and find it difficult when I don’t have a space to do that in my home. For this, I need to have (filtered) natural light, good ventilation (to get rid of smells from art materials), and the right floor coverings and/or access to a big sink to avoid water damage. Ideally, in a studio space I would like to have a single long wall so I can display my art through a chronology of how I have created it for me to look at. My art practice does not end when I finish an artwork; I need to be able to hang it up so I look at it and continue learning about it and myself. I also need to be able to make art somewhere in my home or around me, so that I can feel in control of what I create. Even as a child, when I would make art in class, I would destroy my artworks at the end of the lesson rather than let teachers take it from me or allow others to look at it without my permission. When I have been offered shared or non-private studio spaces, I feel I cannot accept them because I can’t make art and then walk away from it.’

    [66] A5(c) at [49].

    [67] A5(c) at [50]-[53].

13. HTDD described the need for a separate and private space to create and store her art. She explained that art is something that she does ‘over time and space’. Also that ‘the space has to be there and has to be dedicated’.[68] She requires a dedicated art space that she can leave and come back to without the need to pack up her artwork at the end of each day. HTDD explained that if she were to use an ‘open’ area of the house for her artwork she would not be ‘safe’ and she would feel unable to allow other people to enter the house.

    [68] Transcript, page 90 lines 30-33.

14. In explaining her need for privacy in respect of her artwork HTDD recounted an incident whilst living in a tent. HTDD had at one time felt a compulsion to leave her tent and camp. On the basis that she had pieces of artwork stored in her camp she felt she would need to burn down the camp. She explained: ^[69]

    ‘I wanted to burn my camp down because I was feeling like I need to leave. And I didn’t want to leave all my art where people could see it’.

    [69] Transcript, page 64 lines 25-26; page 99 lines 42-47.

15. In the context of noises made by hard, shiny surfaces, HTDD explained that this caused her sensory overload which led to her severe dysregulation. She explained:[70] 

    ‘I will slap, shove and push anyone who is making that sound. I want to run away. I inconvenience myself. I deprive myself of things. I lose access to things because I’m avoiding sounds.’

    [70] Transcript, page 109 lines 1-3.

16. HTDD stated that some sounds ‘can just undo me’. She becomes aggressive and experiences an overwhelming need to stop the distressing noise. HTDD stated ‘I feel like my need for (the noise) not to happen again surpasses everyone else’s right to make the noise.’[71]

    [71] Transcript, page 67 lines 11 and 12.

17. HTDD explained that she is unable to relax and maintain self-regulation in the absence of suitable accommodation and that this inability affects her relationships with others, including her family and the people who support her. She also identified that her inability to self-regulate at times makes her feel embarrassed, depressed and ashamed and causes her to ‘retreat’.[72]

    [72] A5(c) at [73].

18. In her evidence HTDD acknowledged that the historical choices she has made in respect of her accommodation may seem ‘illogical to others’ however, from her perspective they have been good decisions as they have accommodated her disability needs. HTDD explained that, of course, she would prefer to live in a home with a shower she could use regularly; however, having a shower facility was ‘not worth’ living in accommodation which contained sensory stimuli which caused her to be continually antagonised and ‘suffer’.[73]

    [73] A5(c) at [59].

19. HTDD also identified an outdoor area as an important feature that would provide her with the ability to garden and keep her animals, activities which she described as calming and therapeutic. HTDD stated that as she is not always capable of taking out her dog for a walk each day and emphasised her need to have a yard where her dogs can be outside and exhibit their natural tendencies.[74]

    [74] Transcript, page 77 lines 26-36.

20. At the time of the hearing HTDD had only one dog. She explained ‘I live well with my dogs’ and ‘life is better with a dog’. She described the pleasure and comfort she experiences from cuddling her dog at times of distress.[75] In the future if provided with suitable accommodation HTDD would like to get a second dog.

    [75] Transcript, page 96 lines 11-13.

21. HTDD explained that her horse has been ‘re-homed’ in the context of her living in her car. She appropriately acknowledged the reality of obtaining suitable accommodation that would allow for the provision of a horse and stated:[76]

    ‘If I was offered long term housing that had what I needed and failed to have a paddock and a yard, I would choose the house over the horse.’ 

    [76] Transcript, page 80 lines 19-20; page 82 lines 37-39.

22. HTDD has not lived in mainstream housing since leaving a ‘Queenslander’ rental accommodation in Milton in 2013.[77] She stated that by the time she left this accommodation, after some three years living there, her ‘function had gone very badly’.[78] She attributed this to a number of factors which included a nearby train line and the need to rent out a room to another person to afford the property.[79] In the context of her deteriorated function HTDD stated that she became ‘worn down’ over time to the point where her poor functioning became ‘excruciating’ and, as a consequence she spent most of her time ‘underneath’ this house in the basement area which she described as a ‘grotto’.[80]

    [77] Transcript, page 106 line 21.

    [78] Transcript page 74 line 24.

    [79] Transcript, page 73 lines 39-47.

    [80] Transcript, page 106 line 40.

23. HTDD did not consider that noise cancelling headphones would address her sensitivity to external noises and stated emphatically that she does not want to use them. She described headphones as being ‘like coffins for your ears.’[81] HTDD also identified that by using noise cancelling headphones she would not be able to hear anything and stated, ‘I don’t see why I should be made deaf just so that I can get through parts of my day’.[82]

    [81] Transcript, page 94 line 2.

    [82] Transcript, page 94 lines 2-3.

24. HTDD does however, at times, enjoy listening to music with headphones. She explained that on the basis of having stable accommodation she would ‘invest’ in music again with a proper stereo and good pair of headphones and ‘just have a little dance space’.[83]

    [83] Transcript, page 89 lines 3-11.

25. HTDD is able to watch television however has a practice of muting television commercials using a remote control as she finds that television commercials are at a higher volume.[84]

    [84] Transcript, page 102 line 45-48.

26. HTDD described landlord Inspections, as required in mainstream rental accommodation as being ‘diabolical’ for her.[85]

    [85] Transcript, page 65 line 1.

27. HTDD maintains relationships with her mother, daughter and granddaughter although contact with each of these persons is sporadic. HTDD has more frequent contact with her support worker ‘MF’ explaining that sometimes she would see MF ‘a lot’ and then other times not as much on the basis that HTDD at times will ‘hunker down’ not wanting to see other people.[86]

    [86] Transcript, page 41 lines 34-37.

28. HTDD spoke positively about MF, describing her as unflappable and respectful. She stated that whilst MF can’t help her with everything she does provide significant help.[87] HTDD also spoke positively in respect of her support coordinator ‘K’, explaining that K had assisted her to travel to the Tribunal hearing in a taxi which she acknowledged she would not have been able to do on her own.[88]

    [87] Transcript, page 42 lines 12-15.

    [88] Transcript, page 45 lines 4-14.

29. HTDD also identified one other friend called ‘A’ who she explained that she sees regularly and could call to ‘help with anything.’[89] HTDD shared accommodation with A in the rental Queenslander house until 2013 and she considers that they have remained friends since.

    [89] Transcript, page 44 line 4-5.

30. Within her local community HTDD identified four specific shops that she feels able to access. She also identified other local shops that she avoids due to her dislike of the staff who work at these shops.[90]

    [90] Transcript, page 38 line 46 - page 39 line 3; page 39 lines 38-40.

31. HTDD has a year ten high school education.[91] In the past she commenced tertiary studies in relation to ‘creative writing’ however explained that ‘I couldn’t do my studies’ and withdrew from the course.[92] HTDD referred to failing one subject on the basis that the tutorials were held in a building she simply could not go into.[93] A second attempt at ‘English Literature’ tertiary studies was also made with HTDD withdrawing in the early stages of this course after again not being able to attend an on-campus tutorial.

    [91] Transcript, page 56 line 43.

    [92] Transcript, page 57 line 21.

    [93] Transcript, page 57 line 14.

    Evidence of Dr Blair-West

32. Dr Blair-West has been HTDD’s treating psychiatrist since 2007 when he began treating HTDD in the context of depression and struggling with stressors.[94] He provided two reports and gave oral evidence at the hearing.

    [94] Transcript, page 18 lines 41-42; page 19 lines 15-17.

33. I am satisfied that Dr Blair-West has the requisite qualifications and experience to provide an opinion on matters relating to HTDD’s application for SDA. In this regard I found Dr Blair-West’s evidence to be helpful and persuasive, particularly in the context of having known and treated HTDD for a considerable period of time.

34. Dr Blair-West has diagnosed HTDD with the following conditions:[95]

    ·Major Depression;

    ·Generalised Anxiety;

    ·Autism;

    ·Paranoia complicated by thought disorder; and

    ·Avoidant Personality Disorder.

    [95] A5(b): Report of Dr Blair-West dated 23 August 2023, page 3.

35. At the hearing Dr Blair-West described HTDD as having a ‘complex clinical picture’.[96] He referred to a very different ‘clinical picture’ of HTDD in the last few years as compared to 2007.[97]

    [96] Transcript, page 22 lines 1-2. 

    [97] Transcript, page 19 lines 34-26.

1. Dr Blair-West’s opinion is that ‘it is the complex interplay of HTDD’s various conditions which leave her so disabled’.[98] In his report of 20 January 2023 he stated:[99]

   ‘HTDD has been under my care since 2007 off and on. She has a complex clinical picture which includes autism, paranoia, and an avoidant personality disorder – the result is significant disability especially socially. Finding stable accommodation has been a major, longstanding problem for her. This problem, in turn, has also impacted her functioning, and her mental state, dramatically. At times she has attended me while living in a tent (as she is now – at least it’s on her mother’s property). Her self-care has always been a challenge. She does better in an environment with low sensory stimulation and where she has space to practice her art which is extremely therapeutic for her.

   I would strongly support her application for accommodation as this would go a long way towards improving her mental health and general functioning, especially if this was stable and long term.’

   [98] A5(b): Report of Dr Blair-West dated 23 August 2023, page 4.

   [99] A2(b): Report of Dr Blair-West dated 20 January 2023.

2. Dr Blair-West’s evidence was that HTDD had responded well to treatment for clinical depression over the years; however, more recently generalised anxiety has been an issue for her.[100]

   [100] A5(b) page 2.

3. Dr Blair-West described an inexorable decline in HTDD’s functioning over time to the extent that HTDD can now no longer function as a member of society. Relevantly, he referred to Maslow’s hierarchy of needs and identified HTDD’s inability to negotiate even the most basic human need of shelter. He stated:[101]

   ‘She seems to be able to feed herself but beyond that her physical presentation would suggest that even basic levels of self-care are beyond her. More so in recent years, she has frequently presented poorly dressed, hair unbrushed and with general self-care and grooming consistent with having not showered. In my 35 years of practicing as a psychiatrist she, by some margin, would be the patient who has devolved to the lowest level of self-care that I have seen.’

   (Tribunal emphasis)

   [101] A5(b) page 4.

4. Dr Blair-West’s opinion was that stable accommodation was critical to HTDD’s ability to deal with higher order issues such as hygiene and cooking and was a ‘necessary baseline’ for her to survive in society.[102] He stated:[103]

   ‘This is the whole point of Maslow’s hierarchy, that you can’t actually deal with higher-order issues if you don’t have the lower-order issues in place, because they preoccupy you. So I would put them in order and I would put the stable long-term accommodation first because she can’t access the other supports and resources without them’.

   [102] Transcript, page 21 lines 3-6.

   [103] Transcript, page 25 lines 32-36.

5. He explained that historically HTDD had been unable to navigate bureaucracy due to generalised anxiety and the stress of trying to negotiate ‘day-to-day life’, an example of which included a Centrelink application.[104]

   [104] Transcript, page 23 lines 6-8.

6. Dr Blair-West described obtaining and maintaining residence in mainstream housing as an ‘overwhelming challenge’ for HTDD.[105] He went further to state that ‘without a doubt she is incapable of procuring and maintaining mainstream housing’ and that ‘the rare but unfortunate combination of her co-morbidities has rendered her unusually disabled when it comes to being able to avail herself of mainstream, or subsidised housing.’[106]

   [105] A5(b): Report of Dr Blair-West dated 23 August 2023 at [6].

   [106] A5(b) at [7].

7. Dr Blair-West stated that HTDD had ‘already proven that she cannot negotiate mainstream accommodation’.[107] His opinion was that any accommodation for HTDD would need to meet her sensory requirements. In particular he referred to HTDD’s noise sensitivity and the need for soundproofing in any proposed accommodation. He explained that ‘HTDD would be more sensitive to noise that(sic) most people would be, and that would be a special consideration’.[108]

   [107] Transcript, page 24 lines 27-28.

   [108] Transcript, page 30 lines 12-16.

8. Dr Blair-West explained that people on the autistic spectrum can be affected by an acute awareness of sensory inputs which can be distressing to them and contribute to a very low stress threshold. He considered that HTDD’s sensory overload issues lowered her stress threshold and that this was one of the things that disabled her the most. He explained that HTDD’s low stress threshold caused her to avoid and withdraw from society in the context of a significant level of anxiety. Also, that her anxiety caused her further difficulty in making good decisions.[109]

   [109] Transcript, page 27 lines 4-20.

9. Dr Blair-West considered that autism was a major component of HTDD’s disability and affected her ability to effectively connect and manage relationships and also to communicate with other adults in a meaningful way. He explained that interactions with other people were confusing and overwhelming for HTDD to the extent that she is unable to navigate normal societal interactional tasks. He stated:[110]

   ‘Negotiating procuring, setting up and meeting the various responsibilities of mainstream housing, including relating in an acceptable way to neighbours, is something HTDD is simply unable to do because of the interplay of each of her co-morbid conditions.’

   [110] A5(b) page 5.

10. In the context of her autism and paranoia Dr Blair-West explained that HTDD’s struggled with ‘any kind of real- forget intimate, ongoing relationship’.[111] His opinion was that HTDD could not live in shared accommodation. He stated:[112]

    ‘there was no way I could ever envisage HTDD living in shared accommodation. She needs her own space. That’s one of the – you know, from where I sit, that’s one of the clear criteria.’

    [111] Transcript, page 28 lines 23-23.

    [112] Transcript, page 28 lines 19-21.

11. Dr Blair-West went further to state that any accommodation needed to be ‘stand-alone’ stating that ‘If she was in a block of apartments, that means you’ve got to negotiate other people coming and going. Again, the sort of thing that’s likely to result in her getting into conflict…’[113]

    [113] Transcript, page 28 lines 29 -31

12. Dr Blair-West acknowledged, and appropriately so, that he did not have the expertise to opine in relation to the specific type of SDA accommodation that would be appropriate for HTDD in the context of her autism and sensory issues.[114]

    [114] Transcript page 25 lines 38-41; page 30 line 18.

    Evidence of Dr Michelle Garnett

13. Dr Garnett is a Clinical Psychologist specialising in autism spectrum disorders with approximately 30 years’ professional experience. She has a Master’s Thesis and a PHD doctorate in ASD.[115]

    [115] Transcript, page 112 lines 16-23.

14. HTDD was referred to Dr Garnett in or about June 2019 by her NDIS Support Coordinator for consideration as to whether she may be a suitable candidate for SDA.[116] Dr Garnett assessed HTDD in person at her clinic in June 2019 with adaptive functioning components carried out in July 2019 and February 2020.

    [116] T Documents, T3: Report of Dr Michelle Garnett dated 28 February 2020.

15. Dr Garnett provided a report dated 28 February 2020 and oral evidence at the hearing. I am satisfied that Dr Garnett has the requisite qualifications and experience to provide an opinion on matters relating to HTDD’s application for SDA. In this regard I found Dr Garnett’s evidence to be helpful, truthful and in accordance with her obligations as an expert witness.

16. In her report Dr Garnett provided the following diagnoses: ^[117]

    ·Autism Spectrum Disorder (ASD) - level 3 (social communication and level 3 (rigid and repetitive behaviours);

    ·Severe generalised anxiety disorder (GAD);

    ·Severe major depressive episode (current and episodic); and

    ·Post traumatic stress disorder (PTSD).

    [117] T Documents, T3, page 6.

17. Dr Garnett conducted a Vineland assessment to measure HTDD’s adaptive living skills across three domains; communication, socialisation and daily living skills.[118] HTDD’s mother and friend ‘NS’ were also interviewed by Dr Garnett in relation to their previous experiences living with HTDD.[119]

    [118] T Documents, T3 page 4.

    [119] T Documents, T3 pages 4-5.

18. HTDD’s overall scores on the Vineland assessment from responses provided by her mother indicated that her adaptive functioning was in the range of 66-79 (where the normative mean score is 100). This score indicated that HTDD was functioning better than only 2% of her aged-matched peers. HTDD’s overall scores on the Vineland assessment from responses provided by NS indicated that her adaptive functioning was in the range of 78-84. This score indicated that HTDD was functioning better than 10% of her aged-matched peers.[120]

    [120] T Documents, T3 page 5.

19. The discrepancies in the Vineland test scores between answers given by HTDD’s mother and those given by NS was explained on the basis of interpersonal conflict between HTDD and her mother which caused HTDD’s dysregulation and worsened her sensory sensitivities. Dr Garnett considered that the less conflictual relationship HTDD enjoyed with NS allowed HTDD a degree of social support that was not possible with her mother.[121]

    [121] T Documents, T3, page 6; Transcript, page 117 lines 27-31.

20. Dr Garnett explained that as a consequence of her severe autism HTDD was unable to access and benefit from conventional supports, stating that HTDD’s ‘social communication deficits preclude her from substantially benefiting for a sustained period of time from accessing one-on-one home support, mentoring, peer support, individual skill development.’[122]

    [122] T Documents, T3, page 7.

21. Dr Garnett referred to the importance of social supports for HTDD, emphasising however that social supports alone ‘would not, in my opinion be sufficient to support HTDD to pursue her goals and aspirations or facilitate social and economic participation’.[123]

    [123] T Documents, T3, page 7.

22. Dr Garnett noted a level of hyper-vigilance during her assessment of HTDD. When answering questions during the assessment HTDD was observed to stand, rock, pace and engage in constant hand-flicking.[124]

    [124] T Documents, T3, page 4.

23. In her oral evidence Dr Garnett explained that hyper-vigilance was a common feature of autism, occurring in response to anticipated sensory experiences that are likely to cause pain and distress and other physical symptoms like nausea. Dr Garnett considered that HTDD’s hyper-vigilance was a physical manifestation of her many sensory hyper-sensitivities.[125]

    [125] Transcript, page 113 lines 45-48.

24. At the time of Dr Garnett’s assessment in July 2019 HTDD was residing in a ‘storage room’ at the back of a friend’s garage (‘the storage room’). HTDD had been residing in this storage room accommodation since mid-November 2016. It comprised one room with a single bed and a filing cabinet for HTDD’s clothes. It did not include access to a bathroom, kitchen or laundry. HTDD was however able to accommodate her dog and her horse at this accommodation. As HTDD was unable to cook for herself she purchased sandwiches when she felt able to access the local shopping centre. When she felt unable to access shops she had at times been without food for up to two weeks. HTDD showered intermittently, at times less than once a week, at her mother’s home which was located in a nearby street.[126]

    [126] T Documents, T3, page 3.

25. In her report Dr Garnett referred to HTDD’s ‘choice’ to live in the storage room as being motivated by her need to live with her dog and near her horse. Dr Garnett stated, ‘HTDD has very few social supports and as a result very much needs her two animals near her to maintain her mental health and reduce the impact of her autism’.[127]

    [127] T Documents, T3, page 3.

26. In oral evidence Dr Garnett stated that over 90% of the autistic population have ‘sensory differences’ across a combination of the five sensory systems including, sight, sound, tactile, smell and taste, and that these sensory differences can be the most extreme part of their autism.[128] Dr Garnett explained the effect of sensory processing difficulties whereby an affected person becomes inundated with sensory matter and thereafter ‘lost in a sea of distress and pain.[129]

    [128] Transcript, page 112 lines 39-40.

    [129] Transcript, page 117 line 11.

27. Dr Garnett stated that management of sensory issues is all about ‘avoidance with what causes pain or stress’.[130] She explained that over time and with awareness of their sensory impairments, those individuals affected develop various ‘accommodations’ to manage their sensitivities.[131] Examples of these accommodations include wearing a visor, using noise cancelling headphones, dark sunglasses and wearing soft ‘comfortable, natural fibre’ clothing.[132]

    [130] Transcript, page 114 line 15

    [131] Transcript, page 114 lines 1-3.

    [132] Transcript, page 114 lines 3-13.

28. Dr Garnett’s stated that sensory issues in individuals with autism are often chronic and lifelong. Her opinion was that HTDD’s had multiple sensory impairments, that they were a significant feature of her autism and that they were permanent.[133] Dr Garnett also explained that levels of autism can vary over time and in her view it was clear that HTDD’s functioning had deteriorated since 2013.[134]

    [133] Transcript, page 115 lines 17-19.

    [134] Transcript, page 127 lines 18-25.

29. In cross-examination Dr Garnett agreed that noise cancelling headphones and noise reducing earbuds are commonly used as a sound barrier. Notwithstanding, whilst these items can be effective for noise reduction they present difficulties for those with tactile sensitivities.[135]

    [135] Transcript, page 121 line 9-10.

30. Dr Garnett distinguished between wearing headphones to listen to music as compared to noise cancelling headphones to block all noise. She stated that for an autistic person listening to music is a different experience in the context of auditory sensitivity. This is because when listening to music using headphones the autistic person can ‘choose’ the music that they wish to listen to and remain in control of the time, place and duration of this activity.[136]

    [136] Transcript, page 122 lines 39-43.

31. Dr Garnett identified also ‘environmental accommodations’ whereby an autistic person must remove themselves from an environment that overwhelms their senses to such a degree that they become cognitively dysregulated and are unable to apply any other strategies. Dr Garnett observed that a common environmental accommodation of autistic persons was to move to the country to ‘get away from sensory overload of the city.[137]

    [137] Transcript, page 117 line 5-16.

32. Dr Garnett’s opinion was that it ‘was clear that the environment was causing even more distress than was necessary…’ to HTDD. She also referred to Maslow’s hierarchy of needs to explain that it was not possible to treat HTDD’s anxiety and PTSD without her having ‘shelter’ of safe accommodation.[138]

    [138] Transcript, page 117 lines 37-46.

33. Dr Garnett opinion was that HTDD’s capacity to cope with mainstream accommodation was severely compromised because of her disabilities. Dr Garnett identified HTDD’s history of 28 accommodations over the past ten years which she considered established that HTDD did not have the capacity to cope with regular housing.

34. Dr Garnett stated that ‘the form’ of accommodation was a critical factor as to whether the accommodation is secure and habitable for HTDD.[139] She referred to HTDD’s severe distress ‘which lasted hours’ and was ‘traumatising’ in response to stimuli such as tiles in bathrooms, laundries and living areas, and also shiny surfaces.[140]

    [139] Transcript, page 118 lines 12-23.

    [140] Transcript, page 118 line 45 – page 119 line 6.

35. Dr Garnett added that ‘light’ was a common autistic sensitivity which manifested in relation to certain intensities of light, specific to an individual. She stated that it was the refraction of light on shiny surfaces that was completely demobilising for HTDD and caused her physical symptoms including nausea.[141]

    [141] Transcript, page 119 lines 4-6.

36. Dr Garnett’s opinion was that HTDD needed accommodation where she ‘can have her own place’ with appropriate surfaces, no shiny tiles and an environment where there are no cooking smells.[142]

    [142] Transcript, page 119 line 40; page 120 lines 4-8.

37. Dr Garnett’s clinical opinion was that HTDD should be funded for SDA on the basis of her extreme mental health impairment and extreme functional impairment. These impairments, in her opinion resulted in HTDD’s extremely reduced capacity to self-care and self-manage.[143]

    [143] T Documents, T3, pages 6-7.

38. Dr Garnett’s opinion was also that SDA would assist HTDD in achieving her goals, objectives and aspirations, mitigate the impact of her impairment, prevent deterioration of her functional capacity, improve functional capacity and provide HTDD with the opportunity to build her capacity and develop new skills. On the basis of HTDD’s extreme functional impairment she considered that SDA would represent good value for money as compared to alternatives of other supports alone.[144] In this regard Dr Garnett stated:

    ‘Having a home situation, with tenure, no housing inspections, no shared living expectations, access to a kitchen, a bathroom and a designated area to engage in art, capacity to house and care for her horse and a dog, where there are no tiles, and no expectations of a lawn to mow, in addition to having support to adequately feed and clothe herself, would substantially mitigate the impact of her impairment, recent deterioration of her functional capacity and development new skills. In my opinion the SDA, because of extreme functional impairment, would be good value for money compared to alternatives, and would promote stability and continuity of supports.’

    [144] T Documents, T3, page 7.

    Evidence of Ms Caitlin Lorimer

39. Ms Caitlin Lorimer is an Occupational Therapist with a background of working with people with ASD and sensory processing disorders. She has had experience in the provision of SDA eligibility assessments for people with ASD since 2016.[145]

    [145] A2(a): Report of Ms Caitlin Lorimer dated 20 January 2023, pages 20-21.

40. Ms Lorimer first conducted a functional assessment of HTDD in September 2020 to consider her eligibility for SDA and the need for associated functional support and environmental requirements.[146] At the time of Ms Lorimer’s first functional assessment HTDD was living in a tent on her mother’s property with her two dogs.[147]

    [146] T Documents, T4: Report of Ms Caitlin Lorimer dated 30 October 2020, page 26.

    [147] T Documents, T4, page 27.

41. Ms Lorimer also conducted subsequent assessments during the course of this review application. She provided six reports to the Tribunal[148] and gave oral evidence at the hearing.

    [148] T Documents, T4, dated 30 October 2020; T8, dated 23 July 2021; A1(c), dated 12 October 2022; A2(a), dated 20 January 2023; A3(a), dated 16 April 2023; A5(a), dated 15 August 2023.

42. Ms Lorimer’s opinion was therefore based on multiple assessments of HTDD over three years between 2020 and 2023. I am satisfied that Ms Lorimer has the requisite qualifications and experience to provide an opinion on matters relating to HTDD’s application for SDA. In this regard I found Ms Lorimer’s evidence to be helpful, truthful and in accordance with her obligations as an expert witness.

    113.Ms Lorimer’s opinion contained in her first report of 30 October 2020 was that HTDD was eligible for SDA on the basis that her ‘permanent disability results in an extreme functional impairment with very high support needs which require Robust SDA response.’[149] (emphasis in original)

    [149] T Documents, T4, page 29.

43. Ms Lorimer described an SDA response for HTDD as being appropriate and ‘best clinical practice’ in order to meet HTDD’s functional requirements and to promote her opportunities for independence, safety, choice and control.[150]

    [150] T Documents, T4, page 45.

1. Ms Lorimer identified several sensory processing characteristics of HTDD’s autism which included audiophobia, visual sensitivities and tactile defensiveness.[151]

   [151] T Documents, T4, pages 33-34.

2. In referring to HTDD’s struggle to source appropriate housing through private rentals or the Department of Housing over the years she explained that certain features of HTDD’s autism are negatively impacted by the ‘common characteristics’ of housing which is available on the open market.[152] These characteristics included the following:[153]

   ·Quarterly inspections on standard residential leases which caused HTDD significant distress for several weeks pre and post inspection. She explained that HTDD’s autism traits lead to ‘an extreme need for control and an aversion to strangers invading her space’;

   ·Fluorescent lighting as it let off a “buzzing” sound’ that is painful to HTDD;

   ·Tiles and other shiny surfaces that adversely affect HTDD’s sensory system; and

   ·Ambient sounds such as children playing or noise from neighbours which also adversely affect HTDD.

   [152] T Documents, T4, page 28.

   [153] T Documents, T4, page 28.

3. Ms Lorimer conducted a WHODAS 2.0 assessment to review HTDD’s functioning across the six domains of cognition, mobility, self-care, getting along with people, life activities and participating in society.

4. The WHODAS 2.0 assessment indicated that HTDD had an ‘extreme functional impairment’ as a result of her extremely reduced functional capacity in self-care and self-management, even with assistive technology or modifications.[154] HTDD’s WHODAS score results placed her in the 95-98^th percentile, and on this basis she is considered to experience a higher level of disability compared to 95% of the population.[155]

   [154] T Documents, T4, page 35.

   [155] T Documents, T4, page 48.

5. Ms Lorimer also conducted a Care and Needs Scale (CANS) assessment which indicated that HTDD had ‘very high support needs’ and required support for up to 11 hours per day.[156] Notwithstanding the results of this assessment Ms Lorimer explained that HTDD would not be likely to respond well to this level of support and instead was likely to self-isolate and withdraw from the ‘intrusion’. Ms Lorimer therefore recommended a graded introduction of daily support to help HTDD develop routines around self-care tasks, prioritising, planning, shopping, cleaning, laundry, and self-management.[157] She also suggested ‘check ins’ from support persons to encourage HTDD to adhere to these routines, although with these ‘check ins’ only occurring within line of sight and not directly within HTDD’s space.[158]

   [156] T Documents, T4, page 35.

   [157] T Documents, T4, page 50.

   [158] T Documents, T4, page 45.

6. In regard to the SDA design category Ms Lorimer stated that ‘Improved Liveability’ would be insufficient for HTDD’s needs.[159] She recommended a ‘Robust’ design on the basis her opinion was that HTDD requires:

   ·sound insulation so that she is not negatively impacted upon by ambient sounds; and

   ·a breakout space, as an integral requirement for her self-management.

   [159] T Documents, T4, page 47.

7. In regard to the appropriate SDA dwelling type for HTDD Ms Lorimer recommended a villa with no shared walls, or a detached low-rise house with a garden or courtyard. She stated that HTDD would be unable to tolerate living in an apartment and considered a complex would not be appropriate due to the environmental sounds, close proximity to others and an inability for to her animals to live with her.

8. She further stated that group accommodation would be inappropriate due to HTDD’s intense need for isolation, high levels of audiophobia, anxiety and behavioral responses during periods of dysregulation.[160] Her opinion was that if HTDD was ‘forced’ to live with other participants she would inevitably be homeless again, living out of her car or in her mother’s yard.

   [160] T Documents, T4, page 49.

9. Ms Lorimer’s opinion was that there were no further capacity interventions, modifications or assistive technology options that could replace or significantly reduce HTDD’s requirement for an SDA response, or that should be provided before SDA is considered.[161]

   [161] T Documents, T8: Report of Ms Caitlin Lorimer dated 23 July 2021.

10. Ms Lorimer provided a supplementary report on 23 July 2021 following appointments with HTDD on further occasions.[162] Ms Lorimer’s supplementary report referred to the following assessments:

    ·A Functional Independence Measure (FIM) assessment to measure the severity of HTDD’s disability and level of activity limitation.[163] The FIM assessment concluded that HTDD’s self-care was ‘deeply impacted by her disability’ and that she required substantial support.[164] Ms Lorimer considered that HTDD’s score would be improved by an appropriate accommodation where she would have improved access to showers, laundry facilities and a kitchen.[165] Relevantly, the FIM assessment indicated that HTDD also required total assistance in the domain of problem solving. Ms Lorimer stated that HTDD’s current living situation (in a tent in her mother’s backyard) was an ‘example’ of HTDD’s solution to the problem of inappropriate housing options. Further, that HTDD’s mental rigidity disrupted her ability to source accommodation and manage relationships with neighbours, landlords and co-tenants.[166]

    ·An Abbreviated Life Skills Profile (LSP-16) to assess HTDD’s abilities with respect to basic life skills over the preceding three months. The results demonstrated a low level of functioning in terms of daily living skills, requiring substantial support.[167]

    ·An Adaptive Behaviour Assessment (ABAS-3) designed to assess the daily living skills of individuals with ASD and sensory impairments. HTDD’s score was found to be in the extremely low range for all domains, demonstrating an extremely low functional capacity in the areas of self-care and self-management.[168]

    [162] T Documents, T8, page 52.

    [163] T Documents, T8, page 120.

    [164] T Documents, T8, page 130.

    [165] T Documents, T8, page 126.

    [166] T Documents, T8, page 125.

    [167] T Documents, T8, page 128.

    [168] T Documents, T8, page 130.

11. In light of her further assessments of HTDD Ms Lorimer opinion remained that Robust SDA was required in the context of HTDD’s very high supports needs and in order to facilitate her safe independence and functional engagement in the areas of self-care and self-management.[169] Ms Lorimer again recommended a single occupancy villa with a breakout space stating, ‘an appropriate accommodation acknowledges HTDD’s sensory processing and psychosocial impairments that have historically been a barrier to safe and accessible accommodation’.[170] 

    [169] T Documents, T8, page 143.

    [170] T Documents, T8, page 127.

12. Ms Lorimer provided a further report dated 12 October 2022 following two in-person assessments of HTDD in February and August of 2022 respectively. In this report she confirmed her opinion that HTDD had an extreme functional impairment with very low functioning in the areas of self-care and self-management and also a very high need for person-to-person support.[171] She explained that HTDD’s functioning continued to decline in the context of her current environment, being in a tent on her mother’s property.

    [171] A1(c): Report of Ms Caitlin Lorimer dated 12 October 2022, page 1.

13. Earlier that year Ms Lorimer explained that she administered a Sensory Profile 2 (SP-2) assessment to examine HTDD’s responses and reactions to sensory information. Ms Lorimer observed that:[172]

    ‘HTDD’s sensory processing impacts her ability to live in noisy areas, share walls, access units with stairs, or access homes with shiny surfaces. HTDD encounters barriers within accommodation settings with shiny/glossy walls, flooring or benchtops impacting her functioning in kitchen, bathroom and laundry spaces.’

    [172] A1(c), page 7.

14. Ms Lorimer again stated that HTDD required accommodation with features that ‘do not exist on the open market’ and ‘do not regularly exist in private rentals or through the Department of Housing’. These features included sound insulation and a breakout space to provide the ability to organise herself and in response to her sensory processing needs.[173]

    [173] A1(c), page 2.

15. Ms Lorimer provided a further report dated 20 January 2023. This report explained that HTDD’s responses to living in residential homes are impacted by the following three external factors:[174]

    ·The sensory environment, such as stimuli which impacts upon her adversely;

    ·The social context, including interactions with neighbours and landlords; and

    ·The policy context, including scheduled landlord inspections.

    [174] A2(a): Report of Ms Caitlin Lorimer dated 20 January 2023, page 4.

16. Ms Lorimer provided a further report dated 16 April 2023 further addressing HTDD’s extreme functional impairment and need for an SDA response. At that time HTDD was still residing in a tent in the backyard of her mother’s property and Ms Lorimer referred to HTDD’s significant functional decline and deteriorating psychosocial disability over the periods of time between her assessments.[175]

    [175] A3(a): Report of Ms Caitlin Lorimer dated 16 April 2023, page 4.

17. Ms Lorimer’s final report dated 15 August 2023 addressed specific questions in regard to her recommendation for SDA as an appropriate housing solution for HTDD. Ms Lorimer described HTDD’s disability presentation as ‘unique’ in that she had severe autism that did not present in the ‘stereotypical manner’.[176]

    [176] A5(a): Report of Ms Caitlin Lorimer dated 15 August 2023, page 14.

18. Ms Lorimer again maintained that Robust SDA was most appropriate for HTDD, stating:[177]

    ‘One of HTDD’s major barriers to appropriate accommodation is her complex sensory processing presentation which disrupts all domains of functioning.

    Just as stairs are an environmental barrier to someone who is a wheelchair user, the presence of certain sensory stimuli is a barrier to HTDD with her disability. HTDD requires an accommodation response that includes sound insulation to mitigate the impact of auditory stimuli on her function.

    Provision of a breakout space is imperative to HTDD’s engagement in self-management including organising her thoughts, communicating her perspective, managing her emotions, regulating her nervous system and producing something that is meaningful to her. HTDD uses her art practice to manage her mood, and as a “preferred activity”.

    These two features belong to the Robust category of SDA and are above the minimum standards for the Improved Livability category.’

    [177] A5(a), page 12.

19. In her oral evidence Ms Lorimer qualified that WHODAS was not a fully comprehensive assessment of a person’s level of disability and only reflective of the level of difficulty experienced over the past 30 days of life activities relating to specific household and vocational tasks.[178]

    [178] Transcript, page 169 lines 5-22.

20. Ms Lorimer also explained that HTDD’s ability to undertake self-care was influenced by both her struggle to engage in spaces with bathroom facilities and also the features of the facilities themselves.[179] Ms Lorimer emphasised the need for HTDD to have accommodation with an ‘appropriately fitted bathroom’[180] which, she stated, meant ‘without shiny surfaces, without tiles’ as these were a barrier to HTDD using a bathroom.

    [179] Transcript, page 187 lines 9-15.

    [180] Transcript, page 161 lines 6-8.

21. In regard to the issue of proximity to any neighbours Ms Lorimer confirmed that HTDD would benefit from an environmental ‘buffer’ so as to maintain sufficient space between HTDD and unwanted smells, sounds and social interactions.[181] Ms Lorimer also confirmed that HTDD did not require accommodation that could house a horse, rather she referred to the ability to access to her horse as being very important to HTDD.[182]

    [181] Transcript, page 187 lines 23-25.

    [182] Transcript, page 165 lines 27-36.

22. In relation to her assessment of HTDD’s noise tolerance Ms Lorimer explained there to be a difference between a noise created by another source, and a noise which HTDD created herself and was within her control and she could prepare for.[183] In doing so she distinguished between HTDD’s responses to the sound made when another person closes and latches a door, as compared to the sound made when HTDD closes and latches a door herself.

    [183] Transcript, page 163 lines 4-6.

23. Ms Lorimer’s opinion was that HTDD would not be able to tolerate noise cancelling headphones or earbuds. She explained that on the basis of her tactile defensiveness HTDD was not going ‘to put things on her body or…in her ears’.[184] Notwithstanding, she conceded that perhaps HTDD may be able to tolerate headphones for ‘discrete periods’ however maintained that the issue for HTDD was a desire to not mute her sensory exposure but rather have more control over her sensory experiences.[185]

    [184] Transcript, page 185 lines 32-34.

    [185] Transcript, page 186 lines 26-37.

    Evidence of Dr Mai Nguyen

24. Dr Ngyuen has been HTDD’s general practitioner since 2015. She stated that HTDD’s homelessness was not by ‘choice’ but rather as a consequence of an inability to secure accommodation that supported the complexities of her ASD-3 diagnosis, which includes ‘severe sensory over-responsivity’ to sensory input.[186]

    [186] T Documents, T5: Letter of Dr Mai Nguyen dated 9 March 2021, page 1.

    Evidence from Department of Housing

25. On 3 June 2022 HTDD made an application for social housing with the Department of Communities, Housing and Digital Economy. In an email dated 14 September 2022 from the Fortitude Valley Housing Service Centre the following response was received:[187]

    ‘We have assessed HTDD as eligible for Social Housing under our Wellbeing Eligibility Criteria. HTDD’s application is currently approved for a 1-bedroom property. We acknowledge that due to HTDD’s disability needs the following housing types would not be a suitable option – Townhouse, Apartment/Flat/Unit, Duplex, Cluster Housing, and Dual occupancy.

    We also acknowledge that HTDD must remain in her community, close to her family and formal supports, to meet her wellbeing / disability needs.

    …….

    A senior officer has reviewed the department’s stock within the above requested areas and there are no 1-bedroom detached houses in or within close proximity of HTDD’s required location and there are also no known plans to build/acquire properties of this type.

    Based on medical and other evidence provided by HTDD’s supports and treating doctor, HTDD requires a one bedroom, ground floor/lowset detached property which is not available in that area.’

    [187] A1(a): Email from the Fortitude Valley Housing Service Centre dated 14 September 2022.

    Evidence of MF

26. MF has known HTDD since 2016 and has been her formal support worker since 2019. She provided a statement[188] but did not give oral evidence. She recommended a Robust category SDA for HTDD on the basis of a requirement for sound insulation and ‘breakout space’ for HTDD’s artwork.

    [188] T Documents, T9: Statement of MF dated 6 September 2021.

27. MF has personally explored housing options for HTDD without success. She identified the following as issues for HTDD:

    ·The need to live in her community near her family as her primary support and also as she only feels safe within a limited geographic area;

    ·The needs to live with her animals as they are intrinsic to her enjoyment of life;

    ·An inability to cope with house inspections from a conventional landlord;

    ·Sensitivity to background noises such as from air conditioners, pool pumps, leaf blowers and neighbours;

    ·An inability to ‘block out’ these types of noises to the extent that HTDD once spent a whole day in her parked car to avoid the noise of tradesman near her tent;

    ·At times going without food rather than interacting with people to shop for food; and

    ·Being forced to interact with others, as unexpected and unwanted interactions can escalate certain behaviours for HTDD such as isolation, poor nutrition and self-care, and conflict.

    Evidence of Ms Orla Fox

28. Ms Fox is a Senior Occupational Therapist with 20 years’ experience in the subspecialty area of treatment and assessment of mental health conditions. She was engaged by the Agency to conduct an independent review and provide her opinion as to whether Robust design SDA was a ‘reasonable and necessary support’ for HTDD.

29. Ms Fox assessed HTDD on the papers and provided her recommendation in a report dated 18 August 2023 and also gave oral evidence at the hearing.

30. I am satisfied that Ms Fox has the requisite qualifications and experience to provide an opinion on matters relating to HTDD’s application for SDA. In this regard I found Ms Fox’s evidence to be honest and truthful and in accordance with her obligations as an expert witness.

31. Ms Fox identified the following symptoms as affecting HTDD:[189]

    [189] R7: Report of Ms Orla Fox dated 18 August 2023, page 5.

    ·Depression;

    ·Anxiety;

    ·Paranoia;

    ·Hypervigilance;

    ·Emotional dysregulation;

    ·Verbal aggression;

    ·Disorganisation;

    ·Sensory sensitivity;

    ·Social isolation and withdrawal; and

    ·Poor self-care.

32. Ms Fox’s opinion was that HTDD’s homelessness has been a major, long-standing problem.[190] She considered that HTDD had been approved for a single resident dwelling through the Department of Housing and concluded that HTDD ‘chooses to remain living in a tent on her mother’s property, rather than move to accommodation which would likely place her in close proximity to other people and be away from her animals.’[191]

    [190] R7, page 8.

    [191] R7, page 8; Reasons for Decision at [133].

33. Ms Fox stated that HTDD’s sensory sensitivities would have a negative effect on her functional capacity if she were to live in mainstream housing. Other people’s noise such as lawnmowers and garden tools, she stated, would almost certainly become overwhelming for HTDD and likely cause her to leave the accommodation. She further stated, ‘Her functional capacity in this scenario would be severely negatively impacted.’[192]

    [192] R7, page 13.

34. In regard to whether HTDD would be at risk while living in mainstream accommodation Ms Fox considered that she did not have any evidence provided about HTDD’s relevant history and therefore it was not possible to know whether an SDA would mitigate risks she previously experience in mainstream accommodation.[193]

    [193] R7, page 13.

35. In the context of HTDD’s capacity for self-care Ms Fox observed a ‘lack of motivation and interest’ for self-care and considered that this largely related to HTDD’s environment and lack of easy access to facilities.[194] She considered that HTDD was able to source art supplies and look after her animals and concluded that HTDD’s disabilities did not result in extremely reduced functional capacity in self-care and self-management.

    [194] R7, pages 7 and 12.

36. Ms Fox’s opinion was that HTDD functionally had the capacity to maintain her self-care and it was her access to bathroom and laundry facilities that had been the issue in the past. She considered that the ‘true assessment’ of HTDD’s functioning had been influenced by her environment of living in either a tent or car and that if HTDD ‘had a roof over her head’ it would be easier for her to maintain self-care.[195]

    [195] Transcript, page 146 lined 14-19.

37. Ms Fox did not consider that the unique design features of SDA would be more effective or beneficial in helping HTDD address her disability and improve her functional capacity when compared to mainstream housing.[196]

    [196] R7, pages 14-15.

38. She considered that mainstream housing would be suitable for HTDD on the basis that HTDD’s ability to live in mainstream housing could be improved with capacity-building supports. She recommended a graded approach to mainstream housing in order to achieve a ‘slow build of exposure’ supported by a multi-disciplinary team of health professionals including psychologists, occupational therapists, psychiatrists and support workers.[197]

    [197] Transcript, page 144 lines 41-42; R7, pages 12, 14 and 15.

1. As a consequence of her autism HTDD has difficulties generally in developing, managing and maintaining relationships. Her relationships with support workers are based on clear boundaries of engagement, determined by HTDD. Notwithstanding I formed the view that K and MF have managed to form a level of rapport with HTDD. They provide valuable and necessary supports and this must be difficult and challenging in the context of HTDD being homeless.

2. HTDD’s family relationships comprise her mother, her daughter who is 28 years old and her granddaughter who is twelve. She receives informal help from her friend ‘A’ who she has previously lived with, and ‘C’, an elderly horse owner who has rehomed HTDD’s horse and previously allowed her to stay in the storage room accommodation on his property.[321]

   [321] T Documents, T4, page 28; T9, page 148.

3. HTDD’s main source of informal support is her mother who is elderly and recently received a cancer diagnosis.[322] HTDD is extremely concerned about burning out her relationship with her mother.[323] Historically her relationship with her mother has been strained and continues with certain limitations. HTDD’s daughter has a partner and the responsibilities of a small child of her own. HTDD’s contact with her family is sporadic and not routine.

   [322] A3(a), page 39.

   [323] A3(a), page 39.

4. Historically HTDD has not developed any long-term social or romantic relationships.[324] Dr Blair-West stated that as a consequence of her impairment HTDD is unable to effectively connect, manage relationships and communicate with others in a meaningful way.[325]

   [324] A5(b), page 2.

   [325] A5(b), page 4.

5. I am satisfied that the informal supports that are provided to HTDD by her family and informal networks are extremely limited. They are insufficient to provide the level of care that HTDD requires.[326] I am also satisfied that the support provided by K and MF is restricted and compromised in the context of HTDD not having stable, long-term accommodation.

   [326] T Documents, T11, page 131.

6. The Agency’s concession is appropriate and the criterion under section 34(1)(e) of the NDIS Act is satisfied.

   Section 34(1)(f): Is SDA most appropriately funded through the Scheme?

7. At the hearing the Agency disputed ‘whether or not the NDIA or the NDIS is the appropriate facilitator’ of the supports HTDD requests.[327]

   [327] Transcript, page 13 lines 45-47; page 14 lines 10-12.

8. The Agency in this regard refers to clause 7.2 in Schedule 1 of the Support Rules which I address below.[328]

   [328] R9 at [17].

9. Schedule 1 to the Support Rules provides guidance in respect of whether supports are most appropriately funded though the NDIS. Clause 7.3 provides that Schedule 1 ‘sets out considerations relevant to whether a support should be considered to be more appropriately provided or funded through another service system’.

10. Notation to Clause 7.3 provides that the considerations in Schedule 1 are to be derived from the Principles to determine the responsibilities of the NDIS and other service systems dated 19 April 2013 (the ‘Applied Principles’).[329]

    [329] This has been updated as of 27 November 2015 with no changes to the relevant text; see >

    Paragraph 6 the Applied Principles relates to ‘Housing and Community Infrastructure’ and relevantly provides as follows:

    1. Social housing providers will be responsible for providing accessible accommodation for people in need of housing assistance in line with existing allocation and prioritisation processes, and consistent with universal design principles and liveable housing design standards as outlined in the National Disability Strategy 2011-2020, including appropriate and accessible housing for people with disability, routine tenancy support, and ensuring that new publicly-funded housing stock, where the site allows, incorporates Liveable Design features.

    ………………………….

    …………………………

    6. The NDIS is also responsible for user costs of capital in some situations where a person requires an integrated housing and support model and the cost of the accommodation component exceeds a reasonable contribution from individuals.

    ……………………………………...

11. The National Disability Strategy 2011-2020 has been superseded by a document entitled Australia’s Disability Strategy 2021-2031 (the ‘Disability Strategy’).

12. The Disability Strategy recognises that ‘In many cases, more than one level of government has some responsibility for a support, service or system.’[330] The Disability Strategy includes a table on government roles and responsibilities in respect of the systems and services available to persons with a disability. This table provides that primary responsibility for the administration of the NDIS lies with the Australian Government. The table further provides that the NDIS is ‘jointly governed and funded by the Australian, state and territory governments’.[331]

    [330] Appendix 4, Australia’s Disability Strategy 2021-2031: ‘Roles and Responsibilities of Governments’.

    [331] Australia’s Disability Strategy 2021-2031: ‘Australian Government and shared government services’.

13. Acknowledgement and identification of the requirement of Commonwealth and State governments to work together can also be found in the Queensland Housing and Homelessness Action Plan 2021-2025 (the ‘Action Plan’). The Action Plan provides that in respect of ‘Housing Supports’ the Queensland Government will:

    ‘Work with the National Disability Insurance Agency to assist Queenslander to access and maximise National Disability Insurance Scheme packages and Specialist Disability Accommodation.’

14. Relevant also is the schedule contained in Part 8 of the Applied Principles which is titled ‘Indicative roles of the NDIS and other parties - Housing and community infrastructure’. Included in this schedule is the proviso that the NDIS will be responsible for:

    ‘User costs of capital in some circumstances, including for disability-specific housing options’

    ……

    ‘The NDIS is also responsible for user costs of capital in some situations where a person requires an integrated housing and support model and the cost of the accommodation component exceeds a reasonable contribution from individuals.’

15. Contained also in Schedule 1 of the Support Rules, in respect of whether ‘housing’ as a support is most appropriately funded through the Scheme, are the following provisions:

    7.19 The NDIS will be responsible for:

    (a) supports to assist a person with disability to live independently in the community, including by building their capacity to maintain a tenancy, and support for appropriate behaviour management; and

    (b) home modifications for accessibility for a person in private dwellings; and

    (c) home modifications for accessibility for a person in legacy public and community housing dwellings on a case-by-case basis but not to the extent that it would compromise the responsibility of housing authorities to develop, maintain and refurbish stock that meets the needs of people with disability; and

    (d) user costs of capital in some situations where a person requires an integrated housing and support model and the cost of the accommodation component exceeds a reasonable contribution from individuals.

    7.20 The NDIS will not be responsible for:

    (a) the provision of accommodation for people in need of housing assistance, including routine tenancy support and ensuring that appropriate and accessible housing is provided for people with disability; or

    (b) ensuring that new publicly-funded housing stock, where the site allows, incorporates Liveable Housing Design features; or

    (c) homelessness-specific services including homelessness prevention and outreach, or access to temporary or long term housing for participants who are homeless or at risk of homelessness; or

    (d) the improvement of community infrastructure, ie accessibility of the built and natural environment, where this is managed through other planning and regulatory systems and through building modifications and reasonable adjustment where required.

16. The Agency disputes that HTDD meets the criterion under section 34(1)(f) of the NDIS Act and maintains that the provision of accommodation for HTDD is not the responsibility of the Agency.[332] The Agency also submits that the SDA sought by HTDD ‘is well beyond what might be expected to cure her of the problems that are occasioned by her homelessness’.[333]

    [332] Transcript, page 8 lines 15-19.

    [333] Transcript, page 9 lines 31-33.

17. I am satisfied that HTDD has appropriately sought assistance for accommodation from the Queensland Government through the Department of Communities, Housing and Digital Economy (‘the DCHD’).[334] Having been appraised of HTDD’s disability and her impairments the DCHD have confirmed that they are unable to assist with accommodation for HTDD. This is on the basis of having ‘no stock’ that would meet HTDD’s disability needs, nor any intention to build or acquire a property that would meet HTDD’s disability needs.

    [334] See [130] Reasons for Decision.

18. The Agency did not tender any further evidence to suggest or propose that responsibility in providing accommodation for HTDD fell to any other government or community body aside from the DCHD.

19. On the basis that HTDD’s disability needs cannot not be met by the provision of accommodation through the DCHD, responsibility falls to the Agency for the provision of accommodation which is suitable to HTDD’s disability needs. This process accurately reflects the appropriate interplay between the Agency and a State Government provider such as the DCHD. I am satisfied that HTDD’s disability requirements in respect of suitable accommodation cannot be met by the DCHD or otherwise.

20. In forming this view I have also considered the appropriateness of mainstream rental accommodation for HTDD. I am satisfied that mainstream rental accommodation is not a suitable long-term solution for HTDD and am persuaded by the following considerations:

    ·HTDD has a lengthy history of failed attempts at living in mainstream rental accommodation. These failures include her forfeiting her rental bond,[335] spending most of her time in an alcove underneath the living floor of a house, becoming evicted and being forcibly removed by police.[336]

    ·HTDD cannot reside in accommodation that is not sympathetic to her sensory impairments and mainstream housing will with near certainty include inappropriate structural features.

    ·Even if a landlord was, in any event, willing to make the necessary sensory accommodations on a rental property HTDD would still be subject to routine landlord inspections. For HTDD, being subject to these inspections would adversely affect her mental health in regard to each occasion of inspection with devasting effects lasting several weeks. Further, HTDD’s general contemplation and anticipation of these inspections have an additional ongoing delirious effect on HTDD’s general well-being, levels of anxiety and functional capacity.[337] 

    ·In mainstream rental accommodation HTDD would also not have long-term security of tenure. As a consequence of her autistic trails HTDD struggles with change and is subject to extremely rigid thinking. The reality of having to inevitably relocate at the end of a rental period would in my view also be detrimental to HTDD’s well-being and functional capacity.

    ·Dr Garnett’s evidence was that accommodation for a person like HTDD who is affected by autism needs to be ‘bespoke and tailor-made’.[338] She stated that in her 30 years of experience as a psychologist she has never encountered social housing which incorporated a feature of noise insulation as is required by HTDD to manage her impairments.[339]

    ·Only SDA will provide HTDD with the certainty of specialist disability accommodation that is designed for and sensitive to her impairments and disability related needs.

    [335] Transcript, page 82 lines 2-4.

    [336] Transcript, page 107 lines 10-12.

    [337] T Document, T4, page 26.

    [338] Transcript, page 135 lines 14-15.

    [339] Transcript, page 134 lines 40-47.

21. Finally, I am satisfied that HTDD’s homelessness is not ‘by choice or as a result of maladaptive behaviours (delinquency of drugs)’. HTDD’s homelessness is a direct result of her disability and the absence housing options that will accommodate her disability.[340] HTDD’s circumstances and predicament of homelessness is a by-product of her disability. Her sensory impairments affect at least four of her senses. She is further disabled by her autism and severe anxiety. Dr Blair-West refers to the debilitating effects of these multiple co-morbidities, which leave her disabled to the extent she is unable to reside in mainstream or social housing. For these reasons, which rely on HTDD’s extremely complex disability, I am satisfied it is the role of the Agency to fund ‘disability-specific housing’ for HTDD.

    [340] T Documents, T11, page 185.

22. I do not accept the Agency’s submission. The criterion under section 34(1)(f) of the NDIS Act is satisfied.

23. Based on the evidence I am satisfied that SDA is a reasonable and necessary support for HTDD.

    What is the appropriate SDA for HTDD?

24. Having determined that HTDD is eligible for SDA I am required to determine, as the next task, the SDA building type, SDA design category, and location of SDA that is reasonable and necessary to support HTDD.[341] Section 15(1) of the SDA Rules provides:

    The CEO must determine the following matters for an eligible participant:

    (a) the SDA building type that is appropriate to support the eligible participant (see section 16);

    (b) the SDA design category that is appropriate to support the eligible participant (section 17);

    (c) the area in which the specialist disability accommodation is to be located (see section 18);

    (d) whether the specialist disability accommodation is to be provided as an in-kind support.

    [341] Rule 15(1) SDA Rules.

25. Schedule 1 to the SDA Rules sets out four SDA ‘building types’ and their features, being:

    ·Apartment [no number of residents specified];

    ·Villa, duplex and townhouse [specified as having ‘3 or less residents’];

    ·House [no number of residents specified]; and

    ·Group home [‘distinguished from other houses by having 4 or 5 long-term residents’]

26. Schedule 2 of the SDA Rules sets out the SDA design categories being:

    ·Basic;

    ·Improved liveability;

    ·Fully accessible;

    ·Robust; and

    ·High physical support.

27. On the basis of a finding by the Tribunal that HTDD is eligible for SDA funding under the Scheme, the Agency has made no submission to assist the Tribunal in respect of the ‘specific’ building type, design category or location of SDA that ought to be funded for HTDD under the Scheme.

28. Ms Fox’s opinion is simply that mainstream accommodation would be suitable for HTDD.[342] Her opinion, which I do not accept, also does not assist the Tribunal in relation to this task.

    [342] R7, page 14.

29. Consequently in the context of the requirements of sections 16, 17 and 18 of the SDA Rules I have considered the evidence of HTDD, Mr Barry, Ms Lorimer, Dr Garnett, MF and Dr Blair-West in my determination of what is the appropriate SDA for HTDD.

30. HTDD seeks as a part of her goals, aspirations and objectives stand alone, single occupancy SDA (with a breakout area for her artwork and a garden) in the western suburbs of Brisbane.[343] HTDD would like to rebuild her artwork as a means of not only managing her mental health and dysregulation but also so that she can again re-engage in social and economic participation.[344]

    [343] Rule 16(a); 18(a) SDA Rules.

    [344] Rule 16(f) SDA Rules.

31. HTDD’s evidence is that she can only live alone. She struggles with relationships and interacting with others. She is prone to spontaneous inappropriate behaviours with others despite her best efforts to control her behaviours. She is intolerant of certain noises to the point of severe dysregulation. This includes noises made in the external environment particularly by neighbours, their children and their animals. HTDD is aware and ashamed of her behaviours. She has significant remorse when they occur.[345] Single stand alone, occupancy SDA will mitigate these behaviours on the basis of there being no co-tenant and also sufficient sound barriers.[346]

    [345] Transcript, page 88 lines 15-18.

    [346] Rule 16(h) SDA Rules.

32. HTDD would like to remain within her community in the western suburbs of Brisbane. HTDD’s mother also lives in the western suburbs of Brisbane. Aside from a period of relocation to Lismore HTDD herself has resided predominately in this geographical area. Whilst highly selective of the places she will shop she feels able to access certain shops in her local precinct. She is also connected to a local medical practice in the western suburbs of Brisbane, which includes taking flowers to the practice. Her treating psychiatrist practices within this same geographical precinct.[347] She is also connected to the Art community in Kenmore.

    [347] Rule 16(g) and (m) SDA Rules.

33. On the basis of meeting HTDD’s specific needs, Mr Barry and Ms Lorimer both recommend that SDA funding be provided for HTDD as follows:

    ·Design Category: Robust[348]

    ·Building Type: Villa/Duplex/Townhouse, 1 resident[349]

    ·Location: Queensland Statistical Area Level (SA4), 304[350]

    [348] Rule 17 SDA Rules.

    [349] Rule 16(b); 16(d)-(j) SDA Rules.

    [350] T Documents, T11; T7, page 67.

34. Ms Lorimer’s recommendation of a single occupancy Villa/Duplex/Townhouse Robust category is based on the following considerations:

    ·HTDD’s autism means that she is unable to live with other people;

    ·An ‘Improved livability’ response would be insufficient for HTDD’s needs;[351]

    ·By comparison a ‘Robust’ response is more appropriate in the context of being based on ‘two key design features’. These features are firstly sound insulation[352] to minimise the impact of external noises upon HTDD.[353] Secondly, a breakout space for her artwork;

    ·A villa/townhouse would provide sufficient space for the required breakout space for HTDD to engage in her art[354] which will assist her self-regulation;[355] and

    ·A Robust design category requires certain minimum design requirements that are required for HTDD’s needs.[356] This includes the requirement of not sharing a wall with another resident.[357]

    [351] Rule 17(a) SDA Rules.

    [352] A2(a), page 16.

    [353] A3(a), page 43.

    [354] A7 at [120]; T Documents, T4, page 48.

    [355] A3(a), page 43.

    [356] A3(a), page 44.

    [357] T Documents, T9, page 157.

35. MF recommends a single occupancy SDA duplex/villa/townhouse in order to provide a safe and private residence for HTDD where provision can be made for her sensory impairments.[358]

    [358] Rule 16; Rule 17 SDA Rules.

36. Dr Blair-West’s refers to HTDD’s inability to relate to neighbours in an acceptable way.[359] In support of HTDD’s request for SDA Dr Blair-West relevantly states, ‘I have not seen a stronger argument than the trajectory that HTDD has established now over the last decade or so.’ In his oral evidence he stated ‘there is no way I could ever envisage HTDD living in shared accommodation. She needs her own space. That’s one of the – you know, from where I sit, that’s one of the clear criteria’.[360]

    [359] A5(b).

    [360] Transcript, page 28 lines 19-21; Rule 16(f), (h) and (j) SDA Rules; Rule 17 SDA Rules.

37. Dr Garnett’s evidence was that ‘individual accommodation was likely to be the best’.[361]

    [361] Transcript, page 188 lines 37-39.

38. Counsel for HTDD submits that the amount of the funding to be included in the HTDD’s plan should be based on the following SDA characteristics: [362]

    ·SDA Building Type: Villa/Duplex/Townhouse, 1 bedroom/resident.

    ·Design Category: Robust (with breakout space).

    ·Location: Queensland Statistical Area (SA4), 304 (QLD – Brisbane – West).

    [362] A7 at [123].

39. Having considered the evidence with regard to the provisions of the SDA Rules[363] I consider that this submission is reasonable, persuasive and appropriate.

    [363] Rule 15,16, 17 and 18 SDA Rules.

1. Stand alone, single occupancy SDA will be sympathetic to HTDD’s impairments.[364] It will minimise the impact of her sensory overload. HTDD’s episodes of dysregulation will be more manageable with further benefits to her mental health and levels of anxiety. She will have respite from intolerable sensory stimuli. She will no longer be burdened by a constant state of anxiety by continually anticipating painful and disturbing stimuli. She will have a safe, stable and long-term tenure in a residential environment responsive to her disability. Within this environment she will be able to re-build her functional capacity with dignity, privacy and access to the other supports which she needs.

   [364] Rule 18 SDA Rules.

2. A Robust design category is required to provide HTDD the sound barriers and breakout space she requires to function and self-regulate. She will be able to manage ongoing relationships in her community and the people that live around her including neighbours. HTDD stated in this regard, ‘I want to be able to live in the community and…to be friendly, to be understanding. I don’t need to be aggressive and upset’.[365]

   [365] Transcript, page 88 lines 21-23.

3. SDA in the Brisbane-West geographical area will also enable HTDD to remain connected to the few supports that she has including her mother, daughter and granddaughter who live in the Brisbane-West area. She will also be able to continue with her routines which are safe to her and access places in local community in which she feels comfortable in the context of her impairments.

4. Pursuant to section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) the decision under review is set aside and the matter is remitted to the Agency for reconsideration with a direction that within 28 days of this decision HTDD’s statement of participant supports specifies for Specialist Disability Accommodation as follows:

   ·SDA Building type: Villa/ Townhouse, 1 resident

   ·Design Category: Robust (with breakout space)

   ·Location: Queensland Statistical Area (SA4), 304 (QLD – Brisbane-West).

I certify that the preceding 334 (three hundred and thirty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins.

.........................[SGD]..........................

Associate

12 April 2024

Applicant representatives:                 Mr Jonathan Bird, Counsel - Pro Bono

Mr Mitchell Skipsey, Solicitor – Pro Bono

(Public Interest Advocacy Centre)

Respondent representatives:             Mr Matthew Golan, Counsel

Mr James Fyfe, Solicitor

(Minter Ellison)

Hearing Dates:   13, 14 and 15 December 2023

Date final submissions received:      2 April 2024