Isherwood and National Disability Insurance Agency - [2021] AATA 3061

Isherwood and National Disability Insurance Agency [2021] AATA 3061 (27 August 2021)
Division:GENERAL DIVISION
File Number(s): 2019/7660 and 2020/2025
Re:Felicity Isherwood
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth and Member G Hallwood
Date:27 August 2021
Place:Adelaide

The reviewable decisions made by the National Disability Insurance Agency on 11 November 2019 and 30 March 2020 are affirmed pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth).
..................[SGND]......................
Senior Member B J Illingworth
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – Applicant with Dravet syndrome, epilepsy, intellectual disabilities, autism spectrum disorder – Reasonable and necessary supports – Home modification and repairs – Vehicle purchase and modification – Funding for current dog – Funding of a future seizure alert dog – Whether plan to be fully self-managed – Decision under review affirmed
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
McGarrigle v National Disability Insurance Agency [2017] FCA 309.
Secondary Materials
Guideline for Persons Giving Expert Opinion Evidence, Administrative Appeals Tribunal, 30 June 2015
Including Specific Types of Supports in Plans Operational Guideline, National Disability Insurance Agency.
National Disability Insurance Scheme (Supports for Participants) Rules 2013.
REASONS FOR DECISION
Senior Member B J Illingworth and Member G Hallwood
27 August 2021
Introduction

The applicant sought review of two internal review decisions of a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) (the respondent) dated 11 November 2019 and 30 March 2020 in relation to the applicant who was born on 4 August 1998.
The applicant’s mother, Ms Belinda Isherwood, (Ms Isherwood) was the applicant’s litigation guardian and plan nominee and acted for and on behalf of the applicant, including at the hearing before the Tribunal. She was assisted by her daughter. The respondent was represented by Mr d’Assumpcao of Howard Zelling Chambers.
Background
11 November 2019 decision – matter number 2019/7660
On 13 July 2018, Ms Isherwood requested, pursuant to s100 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act), an internal review of the applicant’s new plan dated 18 April 2018. The request included to self-manage the plan. The internal review decision dated 11 November 2019 declined the request. The delegate decided:
... your plan was changed to self-manage on the 29/03/2019. There is no required need to change your plan as you are in process of creating a new plan.[1]
30 March 2020 decision – matter number 2020/2025
[1] T2, page 24.
On 29 March 2019 a plan was approved for the applicant. Ms Isherwood requested, pursuant to s100 of the NDIS Act, an internal review of the decision to approve the statement of supports contained in that plan.
On 30 March 2020, the delegate in the internal review decision decided to fund some but not all of the supports requested.
Ms Isherwood lodged at the Tribunal on 23 November 2019 and 6 April 2020 applications for review of the 11 November 2019 and 30 March 2020 decisions respectively.
The Applicant’s National Disability Insurance Scheme (NDIS) plans
Applicant’s Plan of 18 April 2018
The applicant’s goals as included in the NDIS Plan commencing 18 April 2018 (the First Plan) were to be reviewed by 18 April 2019 and are listed in Part 2 of the NDIS Plan. The goals she wished to work towards during the term of the plan are:[2]
My First Goal is:
During this plan: I would like areas in my home and outside my home modified so that I can live more independently and safely. This includes my bathroom, kitchen and my back yard.
My Second Goal is:
During this plan: I would like to attend Riding for the Disabled competitions and attend weekly practice sessions.
[2] Exhibit A, page 82.
The applicant also identified her longer-term goals and aspirations as:
Goal: I would like to attend the Special Olympics. I am skilled at riding a horse.
Relates to: Social and community activities
Goal: I want to continue attending classes at TAFE to fulfil my dream of becoming a Hollywood actress. I need assistance [with] literacy and understanding what the lecturer needs me to do.
Relates to: Learning
Goal: I want to learn to read and write so that I can move forward with my career.
Relates to: Learning
Goal: I have equipment that may need maintenance due to its age.
Relates to: Daily life
Goal: I would like to take a trip to Queensland so that Sparkles (my epilepsy detection dog) and I can go through refresher training. In the future, Sparkles will retire and another service dog will be required[3].
Relates to: Health and wellbeing
[3] Ibid.
Several supports were approved (subject, in some cases, to obtaining quotes and/or prior assessments) and budgets provided for in Part 3 of the First Plan including:
Assistive Technology: including major repairs to wheeled mobility equipment (scooter and wheelchair), and repairs to bathroom equipment (shower chair) and repairs to other equipment – $357.35;
Improved daily living: therapeutic support (including assistive technology). Assessment by qualified professionals (OT and building construction professional) for the provision of home modifications consistent with the provisions of the NDIS Home Modifications FAQs to bathroom, kitchen, inside of house and outside of house – $12,514.00;
Home modifications: approval of funding for modification of…bathroom, kitchen and outdoor area requires an assessment and recommendation from suitably qualified professionals plus appropriate quotations for construction – $1.00;
Support coordination: time limited assistance to strengthen ability to connect with mainstream and community supports and establish service agreements and bookings with support providers – $692.52;
Transport: level 2 transport – assistance with transportation costs as unable to use public transport safely – $2,472; and
Core supports: this includes $1,021 of funding for assistive technology with the remainder of the funding in the support area being flexible to enable maximum independence in personal activities of daily living – $17,845.50[4].
[4] Ibid, pages 83-85.
The approval letter of the First Plan dated 19 April 2018 confirmed that self-management of funding had been approved for the following supports: improved daily living, support coordination, home modifications, consumables, daily activities, and social community and civic participation.
On 13 July 2018, Ms Isherwood lodged a request on behalf of the applicant for an internal review of the First Plan. The reasons provided for the request were:
·Missing details out of my plan such as not adding correct information or using my wording.
·Adding information that is not correct.
·Putting that I want part self-managed and the other half done by agency. I / my nominee have stated that we want self-managed only
·Have not put in all of my diagnosis.
·Not writing in all of my short term / long term goals.
The Applicant stated that the outcome sought was a new plan coordinator and for the plan to be exact and have all the correct information on it.
On 11 November 2019, the NDIA determined that there would be no change to the plan management. The reason for this decision was that the plan was changed to self-managed on 29 March 2019 and that there was no required need to change the plan as the creation of a new plan was in process.
Applicant’s Plan of 29 March 2019
The applicant’s goals as included in the NDIS Plan commencing 29 March 2019 (the Second Plan) which were to be reviewed by 28 June 2019 are listed under the heading ‘[the Applicant’s] goals’ and generally restate the goals identified in the Applicant’s plan of 18 April 2018.
This three-month Second Plan provided a total core support budget of $5,079.37 and a total capacity building supports budget of $3,301.63. The capacity building supports in the Second Plan also included funding for “Assessment by qualified professionals (OT and building construction professional) for the provision of home modifications consistent with the provisions of the NDIS Home Modifications FAQs to bathroom / kitchen / inside of house / outside of house”.
The approval letter of the Second Plan confirmed that self-management of funding had been approved for the following supports: improved daily living, support coordination, consumables, daily activities and social community and civic participation.
Ms Isherwood’s complaint on behalf of the applicant in relation to the Second Plan identified several concerns which may be summarised as:
(a) the Plan was developed without the Applicant’s input and did not address the Applicant’s needs and wants;
(b) the Plan did not include home modifications;
(c) the Applicant’s family are not listed as her supports;
(d) the Plan failed to include the purchase and modification of a new vehicle;
(e) the Plan did not include training of the current seizure response dog or provision of a replacement seizure response dog;
(f) there was a reduction in the support coordination budget;
(g) the Plan contained errors; and
(h) there were concerns over what constitutes Riding for the Disabled SA supports and activity fees.
On 30 March 2020, the NDIA provided details of the outcome of the internal review request in relation to Plan 2. The internal review approved funding: to obtain quotes to replace the existing wheelchair and for minor repairs it may require; and, funding for two weeks Short Term Accommodation to be used to assist with the development of skills for the applicant to achieve her goals. The internal review also found that there was insufficient evidence: to determine the appropriateness of the home modifications requested; and to determine the appropriateness of the vehicle modifications requested. This decision resulted in a new plan which included the approved supports[5].
[5] Exhibit B, pages 8-9.
LEGISLATION AND GUIDELINES
The NDIS is established by the NDIS Act and the NDIA administers the NDIS.
The objects of the NDIS Act are set out in section 3 and make particular reference to the purpose of providing reasonable and necessary supports for participants in the Scheme.
Subsection (3)(1) provides in part that the objects of the Act are to:
...

(c) support the independence and social and economic participation of people with disability;
...
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports;
…
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability…
In giving effect to the objects, regard must be given to, amongst other things, ‘the need to ensure the financial sustainability’ of the Scheme and ‘the provision of services by other agencies, departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.[6]’
[6] NDIS Act s 3(3).
Section 4 of the NDIS Act sets out general principles to guide decisions and actions taken under the Act. Relevantly, those principles include:
…
(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.

(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports
…
(11) Reasonable and necessary supports for people with disability should:
(a)   support people with disability to pursue their goals and maximise their independence; and
(b)   support people with disability to live independently and to be included in the community as fully participating citizens; and
(c)   develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment
…
(15) Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.
A participant’s plan and reasonable and necessary supports
Section 33 of the NDIS Act provides for the content of participant plans as follows:
Matters that must be included in a participant’s plan
(1) A participant’s plan must include a statement (the participant’s statement of goals and aspirations) prepared by the participant that specifies:

(a) the goals, objectives and aspirations of the participant; and

(b) the environmental and personal context of the participant’s living, including the participant’s:

     (i) living arrangements; and

     (ii) informal community supports and other community supports; and

     (iii) social and economic participation.

(2) A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:

    (a) the general supports (if any) that will be provided to, or in relation to, the participant; and

    (b) the reasonable and necessary supports (if any) that will be funded under the National
Disability Insurance Scheme; and

  (c) the date by which, or the circumstances in which, the Agency must review the plan under
Division 4; and

(d) the management of the funding for supports under the plan (see also Division 3); and

(e) the management of other aspects of the plan.
Reasonable and necessary supports
Section 34(1) of the NDIS Act provides that, for the purposes of specifying in the statement of participant supports the reasonable and necessary supports that will be funded under the scheme, the CEO must be satisfied that:
(a) the support will assist the participant to pursue the goals, objectives and aspirations in the participant’s statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is most appropriately funded or provided through the NDIS and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or

(ii) in accordance with the reasonable adjustments required under a law dealing with discrimination on the basis of disability.
If one of the above requirements in s 34(1) (a) – (f) is not satisfied, then the particular item is not a reasonable and necessary support.
In McGarrigle v National Disability Insurance Agency, Mortimer J stated with respect to the question of whether a support is reasonable and necessary[7]:
Whether a support is ‘reasonable’ requires a different assessment to whether a support is ‘necessary’. Again, it is not necessary in the context of these proceedings to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s.34(1)(a) and (b) and (d). The word ‘reasonable’ would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1), rather, it is to illustrate the different work that each concept does as an adjective in the phrase ‘reasonable and necessary supports’.
[7] [2017] FCA 309, [91] – [93].
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules) deal with the assessment and determination of ‘reasonable and necessary supports’ that will be funded under the Scheme. The Support Rules form part of the legislation.
The CEO of the NDIA has issued an Operational Guideline relevant to the provision of home modifications[8] and assistance animals[9] in NDIS plans to be taken into account by the Tribunal unless there is good reason not to, such as inconsistency with the legislation.
[8] T14, pages 123 – 165.
[9] Including Specific Types of Supports in Plans Operational Guideline, National Disability Insurance Agency.
ISSUE
The issue before the Tribunal was whether for the purpose of s34 of the NDIA Act the requested supports not approved by the delegate are “reasonable and necessary”.
FACTS
The respondent’s Statement of Facts, Issues and Contentions (SoFICs) detailed some background facts which were not in dispute, and which we will briefly summarise.
The applicant was born on 4 August 1998. She resides with her mother and two sisters at the mother’s home in Hallett Cove, South Australia. The applicant’s mother and one of her sisters are the legal guardians of the applicant under the Guardianship and Administration Act 1993 (SA).
The applicant’s primary disabilities are Dravet syndrome, epilepsy, intellectual disabilities and autism spectrum disorder.
The applicant has been a participant in the Scheme since 18 September 2017[10].
[10] T3, pages 25-26.
The applicant’s plan has an approximate funding of $93,000. We note the respondent understands this has not been utilised since its approval on 30 March 2020.
The applicant’s mother provides the primary day-to-day assistance to the applicant including showering and toileting. The respondent understands there are no other support workers or carers who assist the applicant or her mother.
The respondent in the SoFICs summarised the requested supports which include home modification and repairs as follows:
(i)bathroom ($32,720 plus GST);
(ii)linen cupboard ($2,180 plus GST);
(iii)kitchen ($36,780 plus GST);
(iv)laundry ($12,382 plus GST);
(v)applicant’s bedroom ($19,830 plus GST);
(vi)front door ($19,980 plus GST);
(vii)steps inside ($19,940 plus GST);
(viii)area outside of the house ($19,940 plus GST);
(ix)gates ($1,940 plus GST);
(x)bricking areas ($5,290 plus GST);
(xi)veranda-areas ($39,940 plus GST);
(xii)swimming pool (which has not been installed) ($35,940 plus GST);
(xiii)driveway ($6,410 plus GST);
(xiv)shed ($4,040 plus GST); and
(xv)front porch ($35,980 plus GST).
In addition, the applicant requested Seizure Response Dog funding now, and in the future, and a new motor vehicle and modifications, but without specifications of the requested funding.
The applicant provided the following reports in support of her application:
(i)Report of occupational therapist Wayne Allen dated 7 June 2018[11];
(ii)Report and quotation of Rocksolid Construction Pty Ltd undated but approximately June 2018 – estimated total repair cost of $293,982[12];
(iii)Report and quotation of Dolphin Homes dated 15 July 2018 – estimated repair costs $379,370[13];
(iv)Various letters certificates, certification and primary and alternative handler cards for assistance dog, Sparkles[14];
(v)Letter from Dr Chris Jenkins, general practitioner dated 4 March 2020[15]; and
(vi)Medical Report of Dr Chris Jenkins dated 19 October 2020[16].
The Hearing
[11] Exhibit J.
[12] Ibid.
[13] Exhibit C.
[14] Exhibit E.
[15] 2020/2025, T1(E), page 39.
[16] Exhibit G.

It is helpful to here summarise the opening of both parties.
The respondent
The respondent in opening relied on the SoFICS. The respondent submitted that the issue in this matter was whether the Tribunal could be satisfied that the supports that are sought are reasonable and necessary in accordance with s34 of the Act. To assist the applicant, counsel helpfully summarised s34 and its meaning together with the objects and purpose of the Act.
The respondent explained the two concepts – namely, what will be provided and what will be funded – and correctly submitted that the Tribunal needs to be satisfied of each of the six criteria in s34(1)(a) – (f) of the Act, and that there is no residual discretion to exclude any one of the six criteria.
The respondent submitted that, having regard to the evidence, the Tribunal could not, at this time, be satisfied that the supports claimed by the applicant were reasonable and necessary. There was a need for independent, objective and current evidence which was absent in this matter.
There was an absence of probative evidence directed to each of the criteria. The nature of the support sought fell into three categories, namely (i) home modification, (ii) motor vehicle purchase and modifications, and (iii) requests in relation to an assistance animal. These supports are to be informed by the legislation and also the policy which informs decision-makers how to reach the correct or preferable decision. That policy sets out a number of guidelines, including the planning guidelines and guidelines with respect to assistance animals. While not bound by policy or guidelines, the Tribunal must have cogent reasons should it wish to depart from the policy[17]. It was submitted that the policy applied in this matter. The Tribunal agrees there is no cogent reason to depart from the policy in this matter.
[17] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
As to the proposed home modifications, they were quoted as costing approximately $293,000.00, and some of which would not be regarded as a reasonable and necessary supports, such as, for example, the laundry which the applicant does not access [for the purpose of laundering]. The respondent explained why it took issue with the reports provided by the applicant as it is difficult to distinguish between those modification expenses that were part of the wear and tear of the house, as opposed to those modification expenses that were needed to support the applicant. The respondent submitted the importance of maintaining the financial sustainability of the Scheme to ensure the availability of funds to those who may seek access to the Scheme in the future.
The respondent submitted that the Agency’s position has always been that it wanted to be satisfied that the claimed supports were something more than mere wear and tear. The respondent submitted that the Agency has offered to fund both functional assessments and a home assessment report which has been met with some resistance by the applicant. The absence of those assessments means that the respondent is not in a position to identify as reasonable and necessary, any one of the supports claimed by the applicant. Hence, there has been no independent assessment for and on behalf of the respondent and those reports provided by the applicant arguably do not solely identify reasonable and necessary supports for the applicant, and extend to identifying some general wear and tear of the property. Further, the requested assessments were also to assist the Tribunal in coming to the correct or preferable decision.
There was no dispute with respect to the applicant’s various medical conditions. However, it was submitted that there was no link between a functional capacity assessment or home assessment report of the applicant and the builder’s report, from which the Tribunal can be satisfied that any claimed support was reasonable and necessary. An example was the claim in respect of the bathroom. It was twice the subject of previous contracts for renovation entered into by the applicant’s mother, yet the bathroom is not complete. How the claimed completion of the renovation is linked to the applicant’s functional capacity is not apparent on the evidence. The question is what the applicant needs and that remains an issue.
The applicant
The applicant presented her written opening. Ms Isherwood said that the home is all for her daughter, the applicant. The laundry has water coming out of the walls because the applicant has been using the laundry to shower for approximately six years while trying to get the contracted bathroom works completed. The mother said she had to fight for everything the applicant has needed.
Ms Isherwood said that the applicant is scared of strangers, and she will not survive being placed in an independent living environment. Her seizures are caused by stress and if she were to live in an independent facility, she would not survive. What underpinned her application was a desire to ensure that the applicant can continue living in her current home and not be placed in an independent facility where she would not survive.
Ms Isherwood detailed issues she had to deal with when the applicant was at kindergarten, including her presentation immediately before having a seizure which was not understood and misinterpreted by the kindergarten staff as behavioural issues.
Ms Isherwood detailed issues at school, for example, when attending a swimming pool, and the unsatisfactory care that was given to the applicant which placed the applicant at risk. Ms Isherwood was critical of the school and the support workers, resulting in a change of school. Again, there were issues with that new school and the supports and care of the applicant. She referred to a number of other issues that arose during the applicant’s schooling, including the applicant’s interaction with another student, seizures she had at school, and Ms Isherwood’s conflict with the school staff. Ms Isherwood removed the applicant from that new school, returning her to the original school, however she had ongoing issues and dissatisfaction with the school and the carer. Ms Isherwood removed the applicant from school and home schooled the applicant for six years. She described issues with the Department of Education and others in being permitted to home school the applicant.
In 2014 the applicant had a support dog, Sparkles. The applicant requested to return to school. The applicant’s sister, Ms LI, assisted in that transition back to school. Again, Ms Isherwood had issues with the school and, consequently, her sister Ms LI became the medical and support person for the applicant.
The Evidence
Ms LI – Applicant’s sister
Ms LI provided a statement dated 22 February 2021[18] and gave oral evidence.
Statement dated 22 February 2021
[18] Exhibit F.
Ms LI was born in 1992. She lives with her mother and the applicant and her occupation is that of disability support worker. She said that she and her mother Ms Isherwood have both Enduring Powers of Attorney and Advanced Care Directives with respect to the applicant. Ms LI detailed the applicant’s goals which include:
(a)to have home modifications to help her become more independent, with supervision from her family and seizure response dog and home modifications to feel safe. She summarised both internal and external renovations;
(b)to have a swimming pool in the backyard to allow access to an activity she enjoys and to feel safe;
(c)to have house maintenance to help ensure her home is in good condition as she is unable to do this;
(d)to have a new car and modifications to enable her to access the community safely;
(e)to have her family as her only support to help her with everyday needs (no outside support workers);
(f)to have a vegetable patch put in so that she can plant and maintain vegetables with the help of her family;
(g)to have her family and Sparkles, her seizure response dog, help her with accessing the community;
(h)to attend horse riding and compete in competitions – such as at the Special Olympics and around the world;
(i)to become a Hollywood and Australian actress;
(j)to go on holidays (within Australia and overseas);
(k)to have her own horse so she can compete, as well as equipment and a trailer for a horse and horse transport overseas for competitions; and
(l)to have her scooter, wheelchair and other equipment to help her to get around the house and out in the community.
Ms LI summarised various traumatic school events involving the applicant from reception to year 12. Following issues with the schools and her horse riding coach, Ms LI said the applicant is unable to accept, trust or feel safe with anyone other than family members and her seizure dog, Sparkles. Outside support is not an option.
Ms LI referred to past events when the applicant has been in the care of others. She and her family do not feel comfortable leaving the applicant in the care of others.
Ms LI referred to the applicant being abused, lied to and treated poorly when at school and horse riding. She and the members of her family have had to fight for the applicant’s needs. Ms LI was critical of the plan co-ordinator and the struggle to be heard with respect to the applicant’s needs and goals, and where she wants to go in her life. She accused the NDIA of writing plans without the applicant and her family’s consent or knowledge and which are not in the applicant’s best interests. She was critical of the Scheme and NDIA generally.
Ms LI said the applicant has been without a bathroom for six years and had been using a tent, bucket and hose to have showers in the laundry. The applicant is unable to use an outdoor shower due to changes in the weather. The bathroom was altered to improve access for family members and ambulance officers in the event of the applicant having a seizure. It was then modified to join the bathroom and toilet because the applicant suffered a tonic-clonic seizure while in the toilet, hitting her head on the door frame.
Ms LI said the bathroom had not been completed due to incorrect flooring and issues with builders assessing what is required for the applicant’s safety. She also said the applicant was unable to access the backyard due to stairs and railings being steep and the railing being unsteady. A ramp was preferred.
Ms LI said that as the applicant gets older, her needs change, and the request for things to be done around the home is to help the applicant achieve comfort, security and independence. This will also allow ambulance officers improved access. Modifications would assist in the applicant’s daily living, including hanging out or recovering washing, preparing her own meal in the kitchen or on the barbecue.
A new car and modifications are to help the applicant enter and exit the car with more ease. The current car is 11 years old and cannot be modified. The applicant is unable to use other forms of transport and a new vehicle will assist the applicant to access the community.
Ms LI said that the applicant requires constant care 24 hours a day, in all aspects of daily living.
Ms LI’s evidence
Ms LI is the eldest of her siblings and is 29 years of age. The applicant is 22 years of age. There are two other sisters.
The Tribunal asked Ms LI to describe the applicant and how she goes about her daily life. She said that if she were to appear before the Tribunal, the applicant would be in a wheelchair. The applicant is able to walk but not for long distances because it causes exhaustion. She can walk a short distance but not where stairs are involved. She could walk less than a quarter of the distance around her school oval. To the extent she can walk up and down stairs, it is very slow and exhausting. She can navigate the stairs into the back garden of their home very slowly while holding onto the rail. A family member needs to be with her and on occasions she may need to be held while walking up or down the stairs.
The applicant is not comfortable around new people so she would not talk to the Tribunal. She usually does not talk to people but will speak to family members who will then answer on her behalf if she has something to say.
On a good day, the applicant can speak well and clearly. However, on days when she is having seizure activity, her speech may be less clear, and she may need to repeat herself. She does not have any friends. To the extent she formerly had friends, they were to do with her horse riding or school and the friendships were very brief. Since stopping horse riding and school the applicant has had no social interaction. She last had friends to the house on her 18^th birthday. Her only social contact is when she attends her TAFE courses or attends her acting course, which she currently attends every Thursday. Ms LI said they attend acting classes with her, and she is doing very well. The applicant has an ambition to go to Hollywood to act.
The applicant was an accomplished horse rider but if she was about to have, was having, or recently had a seizure, it would be difficult for her to go horse riding. The Tribunal asked Ms LI to explain her accomplishment as a horse rider. She said that she does dressage, does walking and is learning to trot. She competed in the special horse riding Olympics in 2010 where she did quite well. She wanted to continue to do that. It was held near the airport. That was a national event and she used a horse provided by her horse riding centre. She no longer attends that centre and transferred to another centre but stopped riding in 2016 due to “abuse towards her”. That horse riding school was for those with disabilities. There are plans to return to horse riding, but they need to find a suitable horse riding school and, if possible, a school that provides services to the disabled.
At school, there were difficulties with people in the school. The applicant enjoyed the environment of learning, but she struggled with the support workers and some of the students. The Tribunal referred Ms LI to her statement in which she detailed six incidents under the heading ‘School Trauma.’ Ms LI witnessed incidents two, three and six. Incident two occurred when Ms LI and her grandmother went to pick up the applicant. The applicant walked past them and appeared not to recognise them. Her carer was nowhere to be seen. Once in the classroom, the applicant sat down and had a tonic-clonic seizure. Incident three was an occasion when the applicant was on a special diet. This teacher timed her eating and drinking and wrote the details on a whiteboard displayed to others. The applicant was told she needed to hurry up and was too slow and the support worker did not ensure she ate all her food which was important in the prevention of seizures. The applicant suffered a tonic-clonic seizure as a consequence of the teacher and support worker not letting her finish her eating. Incident six occurred in year 10 at high school. Ms LI told the support worker the applicant was having a tonic-clonic seizure. The support worker did nothing, was on her telephone and Ms LI had to step in and administer medication. As for incidents one, four and five, the applicant told the family about those occasions.
The Tribunal asked about the condition of the bathroom during the past six years. There was only one bathroom in the house and it has been under renovation. The family will shower in the laundry. There was an outside toilet and shower that had been provided. The applicant always used the laundry because it is too hard to use the outdoor facility and because of the climate. When the applicant showers, someone is always present. The applicant can wash herself, but that person assists by passing items to her such as shampoos and conditioners. She may use the person for support because she gets sore legs and there is nowhere to sit down. The person will also help dry the applicant and assist with dressing.
The bathroom was originally being “redone” which started about six years ago. It was intended to make it bigger so that the applicant could have more room and, if necessary, ambulance officers could access bathroom. Subsequently, it was intended to join the bathroom and the toilet because the applicant had suffered a seizure and hit her head on the doorframe. The work was solely for the applicant’s benefit to make it more comfortable for her should she have a seizure while in the bathroom.
Ms LI said that there had been a couple of contractors engaged on the bathroom renovations. It stopped and started because the work was not done properly. One contractor installed the incorrect floor height which impacted upon the applicant. The second contractor, when spoken to about not complying with the plans, would react by, for example, putting a hole in the wall. The bathroom is still in a state of disrepair and is unusable. The family currently use a camping toilet.
The kitchen is usable but there are issues with the cabinet doors. The hinges have been redone but the cabinets are falling apart due to age and they are not safe for the applicant because they might fall off. Kitchen drawers pull out because the stoppers are broken. The oven wobbles and sometimes does not start properly. The applicant enjoys cooking but does not cook much because of the unsafe nature of the kitchen. Someone has to be with her, and it is a small space and inconvenient for multiple people to be present together in the kitchen. Sparkles will be in the kitchen with her too.
Sparkles is 9 years of age. The applicant has a close relationship with Sparkles and Sparkles is always with the applicant. This gives the applicant comfort and support when the applicant is not feeling safe around people. Sparkles assists with the applicant’s medical condition by alerting family members of a pending seizure, including up to one or two days before the seizure occurs and also when the seizure is occurring.
When a seizure occurs, they have to make a note of the time it commenced. They will start a timer and record observations of the applicant during the seizure. If the seizure is a tonic-clonic seizure, they may administer medication and arrange for the attendance of an ambulance. The frequency with which an ambulance is called will vary from twice a month to a longer period of time, including greater than six months.
The ambulance officers struggle to get their equipment through the front door of the house. They have to walk down the passageway into the lounge room, which is not a large room, or alternatively into the bedroom which is also difficult for them to access due to the size of the doorway. The ambulance officers will use a slide sheet to get the applicant on the bed which gives rise to the applicant having back pain the following day. They also have a wheelchair type device that they use but they struggle to get this piece of equipment in and out of the house. They tend to leave the stretcher on the front porch because it is too difficult to get into the house.
The applicant will be taken to Marion shopping centre once a month or once every two months. On those occasions she will travel in a wheelchair which has to be pushed because it is not automated. She has a four-wheeled electric gopher but that is difficult to take out. On a good day, she uses the gopher very well, but she will need assistance in prompting and directing such as judging corners. This is also the case when she is inside the house. She rarely uses the gopher around the suburban streets. She may, for example, use it to go to the shops and walk Sparkles but someone will remain home in case the applicant telephones to be collected. They would then drive to pick her up and to bring the gopher home. They have a trailer for the gopher.
In respect of the request for a new vehicle, it is to help the applicant get in and out of the vehicle with greater ease; and if she has a seizure it is necessary that somebody be with her. The current vehicle lacks room and it can be cramped when that occurs. Access into and from the vehicle is difficult and the applicant requires assistance. The current vehicle is a Kia Grand Carnival. The vehicle needs to be replaced and a new vehicle is required. The current vehicle is unable to be modified due to its age and design.

Even though she can walk, the applicant still needs assistance, particularly with balance and getting into a comfortable position and manipulating the seatbelt.
The applicant is generally housebound. The gopher and trailer were last used about two years ago.
The applicant’s mobility fluctuates such that on some days she would be worse, another day will be better. From an overall perspective, her condition is slightly worse because she becomes exhausted more quickly.
The Tribunal asked Ms LI what was the most important of the requested supports that needed to be undertaken. Ms LI said that all of the requested supports are important because the applicant feels like she does not have a lot of independence, and that things are never going to work out because they have been taken away from her, such as the bathroom and horse riding.
Ms LI said that the house is not deteriorating but some areas do not feel safe anymore, particularly the laundry where the family and in particular the applicant has been showering for the past six years which has resulted in tiles lifting due to water damage; or taps around the home that are difficult for the applicant to turn on or off.
The applicant’s last seizure was last night.
In cross-examination, Ms LI said she was currently in part-time employment as a disability support worker. She said that she worked 30 hours a week and agreed that for a significant period of the working week she would be away from the home.
The bigger tonic-clonic seizures will occur perhaps monthly and on occasions less frequently, but she can have little seizures every day. The little seizures can last from a few seconds and up to half an hour. The tonic-clonic seizures last between three minutes to one to two hours.
Ms LI said she had been present in the house when the applicant suffered a seizure and when she had a seizure in the car. The last incident in the car was about two months ago at a time when Ms LI was driving. She pulled over and assisted her mother and the applicant. She could not remember for how long the seizure lasted. It could have been 10 to 20 minutes.
Insofar as the applicant is effectively housebound, she is always in the company of someone. She will usually remain inside and not be outside.
Counsel asked Ms LI if she was generally familiar with what funding is received from the Scheme. She said she was. The family all discuss the applicant’s needs and the use of those funds. When asked whether funds currently received could be used for some of those claimed supports such as the bathroom, Ms LI said that from her understanding there was not enough money to undertake work in the bathroom to get it to a usable condition.
Prior to the Scheme coming into effect, the family did not receive state-based funding other than to assist with the renovation of the bathroom. When asked to explain the stop-start work on the bathroom, Ms LI said that her mother was involved with that work. One problem included the work not being done in accordance with the plans and what the applicant required. Ms LI said she was present for some of the discussions with the contractors and her mother also told her about other issues that arose.
Ms LI was asked about her statement. She said she typed it. Counsel suggested it bore similarity to the other documents produced and referred to the applicant’s SoFICS. She said that she edited that document which was prepared by her mother.
Ms LI was referred to the report of Dr Jenkins which, it was suggested by counsel, appeared to contain stylistic similarities. She was asked if she played a role in drafting that report. She replied that she was present when they spoke to the doctor and gave her some information about the applicant. When asked if she provided anything in writing to Dr Jenkins for the purpose of her report, Ms LI said they provided the doctor with the builder’s report and the applicant’s goals but most of her communication was verbal and when her mother was present. Counsel asked if anything was provided electronically to Dr Jenkins. She said not that she was aware of, but her mother may have.
Ms LI said that she was familiar with an occupational therapist report prepared by Mr Wayne Allen in 2018. Ms LI was asked if she was involved in providing Mr Allen with information for the purpose of his report. She said she was present when Mr Allen attended the house and when he asked questions about the applicant. Counsel asked if Ms LI provided any physical or electronic documents to Mr Allen. She said that she personally did not, but she believed the goals were presented to him.
When Mr Allen attended the home, the applicant was present. Ms LI saw the applicant in his presence. She was uncomfortable with him and would not talk to him at all and stayed in her seat and would not eat or drink whilst he was there.
In response to the Tribunal, Ms LI said her mother presented Mr Allen with the applicant’s goals and the 2018 NDIS plan. The Tribunal also asked if, when Mr Allen was at the house, he carried out any functional assessment. She said he tried to engage with the applicant in talking and eating and drinking, and he asked if he could see her walking around, but she refused to engage with him.
Mr Danny Gardiner – Rocksolid Contruction Pty Ltd
Mr Gardiner of Roksolid Construction Pty Ltd provided a renovation report in relation to the applicant’s home following a property inspection on 19 July 2018[19].
[19] Exhibit J.
Mr Gardiner said at the time he was a registered occupational health and safety assessor. He was asked by Ms Isherwood to look at the property. She had some building work started but not completed. She explained she was not satisfied with the way the building work had been carried out. She said that she had a disabled daughter and she wanted to make the home compliant for the use of her daughter.
The incomplete work was the main bathroom. It had been stripped, a new floor and bath installed. No tiling or waterproofing had been done. He believed the first fix plumbing had been done. Ms Isherwood was insistent that the drain was in the incorrect position and created an unstable surface for her daughter. Mr Gardiner said that he would endeavour to position the grate drain at one end of a fall to avoid different drainage falls in opposite directions. This is then safer for the participant to stand on. He opined that the drain was incorrectly positioned.
Other rooms in need of repair included the kitchen. It was in a severe state of disrepair with not enough room for a wheelchair. Ms Isherwood was using the laundry for the applicant to shower. Laundry tiles were leaking and needed redoing. It was also in a state of disrepair. There were steps in the house that were not compliant with Living Housing Australia Rules and there was no realistic way to overcome the steps by replacing them with a ramp. The doors would be better if widened. There were exterior issues with drainpipes and gutters leaking.
Ms Isherwood wanted a swimming pool which could be achieved. That would be subject to planning approval. They required wiring between an outside shed and the house for lighting and powering the shed. There was also an issue with the front door and entrance. Ms Isherwood said that if her daughter was ill, she would have to stand outside in the cold so she could help her daughter get into the ambulance, and if the weather was poor, waiting for an ambulance outside was not satisfactory.
Mr Gardiner said that a lot of the work was general wear and tear inherent in an old property. The kitchen was in bad condition as was the laundry. There had been repairs to the guttering, but the guttering was still not working properly. A lot of the items were old, worn out and in need of replacing.
The fence is an old corrugated asbestos fence, broken and cracking in parts. The fence is shared by Ms Isherwood and her neighbour and normally the cost of the fence would be shared with the neighbour. The existing fence would need to be removed in a controlled, expert manner.
The steps at the back of the house were not a good idea for a disabled person and a ramp would be preferable.
Mr Gardiner went back to the house prior to giving evidence. Nothing has been done since his report. This is a concern, particularly in respect of the bathroom. The toilets are portable toilets at the back of the house. He said it has been an unfortunate length of time to live in those conditions.
The cost of repairs, given the passage of time since the renovation report, would have increased by approximately 20%.
Mr Gardiner did not discuss any of the recommendations with the applicant. He has never spoken to her. She was there on both occasions when he attended, but she appeared very shy and withdrawn and she took no part in his assessment of the property. His interaction with the applicant was virtually zero.
He said that he was asked to provide an opinion of what could and should be done to the property to make it as user friendly as possible, so he gave his opinion on everything he was asked to look at.
Medical Evidence
Occupational Therapy Report of Mr Wayne Allen dated 7 June 2018[20]
[20] Exhibit J.
A Home Modification Report dated 7 June 2018 prepared by Mr Wayne Allen, occupational therapist, was provided to the Tribunal.
Mr Allen’s report describes a series of recommended home modifications that are based on a set of goals and wishes provided to him by Ms Isherwood as representing what would be good for the applicant in terms of her goals and safety.
The home modifications, repairs and maintenance requirements listed in Mr Allen’s report are similar in nature to renovations in Mr Gardiner’s quote following his inspection of the property over a month later which he estimated would cost $293,292. Mr Allen summarised the modifications to include the following:
Front driveway
a)Resolve 50mm threshold between driveway and street gutter with 1:8 gradient ramping
b)Replace rocks with retaining wall
Front entrance
a)Berger Jet Dry Non-Slip Paint application to outdoor tiles of front landing
b)Installation of an outdoor carport coming off the front of the house to cover the ramp and driveway
c)Removal of the existing air conditioner (it is not used) and making good the cavity
d)Provision of external lighting, noting to be compatible with the carport when in place.
e)Review effective options to eliminate the risk of the screen door blowing closed. Belinda requested this include replacing the front door and screen with sliding doors·
Storage shed and power issues
a)Resolve the sliding door issue as required: this may require replacing the door track, runners, or providing a new sliding door mechanism.
b)Resolve power issues to both power to the shed and the amperage requirements of the home.
Wet area
a)Multiple issues to complete partially completed home modifications.
Bedroom access
a)Relocate built in wardrobe to wall where bed is currently positioned
b)Relocate linen cupboard to area outside of wet area
c)Replace winder windows with sliding windows (ideally both bedrooms)
Bedroom 2 repair
a)Repair to the gyprock and making good of the paint
Kitchen
a)Resolving the gas pipe positioning, as recommended upon review by a suitably qualified tradesperson
b)Review options for ensuring the oven is secure and not susceptible to moving
c)Options may include placing the oven into an integrated cabinet
d)Fixing the cupboard doors and drawers so they are on secure and sturdy hinges
Indoor steps
a)Provision of a matching 800mm timber rail parallel to the existing rail in place
b)Provision of 2 x 800mm rails at the kitchen stairs
c)Provision of step Berger Jet Dry non - slip Paint
Rear doorsteps
a)Provision of a 300mm vertical rail installed at a height of 1000mm on the brick doorframe immediately adjacent the sliding door
b)Berger Jet Dry Non-Slip Paint (1070mm width) on each of the 5 steps will provide greater stability
c)Replacing the-existing fencing at the-steps with a bannister rail and mid - rail with a continuous height of 950mm, returning at the landing into the brick wall. Note a footing will need to be created and removal of several pavers at the bottom of the steps
Side paved area
a)Provision of a veranda of sufficient size to cover the rear steps, as well as extending out adequately to cover the paved side of the home
b)Repair or replace existing barbecue
c)Resolving existing slope of paving
d)Adequate outdoor lighting will be required to also be considered for this area
e)Replace existing fencing in the side / rear of the home to address asbestos and disrepair issues
Proposed Pool
a)Consideration for funding of a medium - sized pool to be installed in the rear yard
b)Repair to side gate
Additional home repairs
a)Gutter replacement
b)Roof repair
c)Painting
d)Laundry floor
Mr Allen’s report is comprehensive in relation to home modifications that Ms Isherwood has described to him as necessary based on what she believes would be best for the applicant. While some proposed work is new, there is a significant focus in the report on Ms Isherwood’s (Belinda) expressed dissatisfaction with building work previously performed in the home[21]:
Belinda noted some wood appeared to be water damaged in the course of the work completed to date…
Belinda raised concerns regarding the size of the drain pipe fitted under the bath and it being an angled pipe to link the bath waste with the floor waste…
Belinda has requested the original floor screeding be redone as there were concerns regarding the original fall of the floor, with the potential for pooling…
Belinda noted that the adjacent bedroom and kitchen walls were damaged at the time that the wall cavity was being constructed, and both require repair…
Belinda has a strong preference for silicon not to be used in the final construction process.
Belinda reported that she was under the impression a ceramic spa bath would be installed, whereas a fibreglass spa bath was put in place.
[21] T5, pages 38 – 40.
Mr Allen’s report described the Applicant’s medical background referring to “a medical summary completed by Dr S. Clarke dated 17/11/16”. That medical summary was not before the Tribunal.
In the absence of a functional assessment of the applicant by Mr Allen, and in the absence of any medical report informing Mr Allen of the applicant’s functioning, Mr Allen’s report can be accepted as a reflection of Ms Isherwood’s opinion of the applicant’s functional capacity needs and, to some degree, an expression of the applicant’s wishes. Accordingly, only limited weight can be given to this report because it is underpinned by Ms Isherwood and her family’s opinions and observations of the applicant, including the reliability of that evidence. Mr Allen’s report does not assist the Tribunal in deciding whether the home modifications listed are reasonable and necessary in accordance with s34 of the Act.
The Tribunal received two reports from Dr Jenkins. As we refer to later, Dr Jenkins was summonsed to give evidence, which evidence was wholly unsatisfactory as was the contents of the report dated 19 October 2020 which she did not author. We will first deal with medical reports called for by the Tribunal after the hearing.
Following the hearing, and given the absence of reliable medical evidence before the Tribunal, the Tribunal requested the parties produce the medical reports of Dr Michael Harbord and Dr Norton, as referred to by Dr Jenkins in evidence, and Dr Clarke, as referred to by occupational therapist Mr Wayne Allen. Ms Isherwood provided three reports, namely:
(i) report of Dr Michael Harbord, pediatric neurologist, dated 9 May 2013;
(ii) joint report of Dr Kenneth Meyers, honorary epilepsy fellow, and Professor Ingrid Scheffer, pediatric neurologist and epileptologist, dated 17 November 2016 addressed to Dr Sally Clarke. We infer this is the report that was provided to Mr Allen who incorrectly attributed this report to Dr Clarke. It did not report on the functional capacity of the applicant; and
(iii) report of Dr Graham Norton, neurologist, dated 8 April 2020;
Report of Dr Michael Harbord, paediatric neurologist, dated 9 May 2013
Dr Harbord reviewed the applicant “regarding her intractable epilepsy and intellectual disability with Dravet syndrome”. Her EEG was normal indicating she did not have lots of unrecognised brief seizures.
Dr Harbord opined that the applicant:
…is currently having 3 generalised tonic clonic seizures per month, and these can last from 7 to 15 minutes, so usually do require treatment with intranasal midazolam. She also has much more frequent daily absence seizures with repetitive eye blinking, and the instructions are for her to have intranasal or buccal midazolam if these persist continuously for more than 15 minutes.
Joint Report of Dr Myers and Professor Scheffer dated 17 November 2016
On 17 November 2016, Dr Myers and Professor Scheffer provided a report to the applicant’s then general practitioner, Dr Sally Clarke. Dr Clarke was a general practitioner who worked in the same practice as Dr Jenkins and whom the applicant consulted from time to time.
This report confirms the diagnosis of Dravet syndrome with SCN1A mutation and sets out the applicant’s current medications, seizure history including current symptoms, medical impression and a plan for further assessment of the applicant’s condition.
Relevantly to this matter, the applicant:
(a)has experienced well over 100 tonic-clonic seizures since she was six months old but has not had one of these seizures since 2014;
(b)has myoclonic jerks since she was 14 months of age and currently has approximately two per day and has experienced three events consistent with drop attacks but never involving injury (at the time of the report);
(c)has had staring spells many times a day from infancy and these are continuing;
(d)has, over the last five years, developed an event with stiffening of both legs, arms and torso as well as some associated shaking, lasting from 30 to 120 minutes; occurring up to five times a week; and
(e)has experienced an event with stiffening and twisting of her hand and arm on one side with this occurring two to four times a month in association with the prolonged episodes.
The report describes the prolonged events, including leg extension and general stiffening, as the most frequent type of event for the applicant and goes on to say these events have some features of psychogenic nonepileptic seizures, but that this would need to be confirmed by testing. The report states that the remainder of the applicant’s seizures appear to be under relatively good control. The report ends with a plan that includes the applicant being admitted to hospital for long term video-ECG monitoring to determine if the events are epileptic seizures.
There is no further report from Dr Myers and Professor Scheffer with respect to the recommended monitoring and the results but monitoring of those results are referred to in a report of Dr Norton described below.
Report of Dr Graham Norton dated 8 April 2020
Dr Graham Norton is staff neurologist at Lyell McEwin Neurology Clinic and provided a report dated 8 April 2020 to Dr Christine Jenkins, the applicant’s GP. This report relevantly states that the applicant’s Dravet syndrome has been ‘proven genetically and clinically’ and is ‘not the severe form’. He goes on to say that ‘there are significant issues with behaviour’ and that ‘there is no doubt that [the applicant] has major issues and Attention Deficit Disorder…’. Dr Norton further describes letters from 2014 onwards from a psychiatrist (unnamed) who suggests the Applicant has ‘a “complex diagnostic picture”, associated with her Dravet syndrome and intellectual delay. She has anxiety and has been labelled as having an oppositional disorder as well’.

Dr Norton then summarised the results of Professor Scheffer’s testing at Austin Hospital, Victoria stating:
After prolonged monitoring of several days, it was felt that the episodes which were causing concern were in fact functional and behavioural and were not true epileptic seizures in the accepted sense.
Dr Norton reported:
...indeed it would appear that it has been many, many years since this young woman has had what I would have called a generalised tonic clonic seizure or myoclonic jerks and that those episodes of which the family complain, are not epilepsy.
The Tribunal notes that Dr Norton’s report, which is addressed to Dr Christine Jenkins, predates Dr Jenkins’ report before the Tribunal by some six months.
Reports of Dr Christine Jenkins dated 4 March 2020 and 19 October 2020
Report of 4 March 2020
This report was very brief and reads as follows:
This is to certify that: Miss Felicity Isherwood has seen me over many years.
I confirm that she suffers from Dravets Syndrome, Epilepsy, Intellectual Disabilities and Autism.
These conditions are permanent and ongoing.
Felicity’s needs include home modification & maintenance, a car, someone to be with her at all times (this must be a family member only) and her seizure response dog.
Report of 19 October 2020
Dr Jenkins had provided a signed 12-page report dated 19 October 2020 titled “AAT Doctors Assessment / report”. The report provides a diagnosis for the applicant of Dravet syndrome, epilepsy, intellectual delay and autism and states:
(a)[The applicant] experienced her first seizure at 6 months of age
(b)There is an ongoing pattern of seizure presentations regularly changing
(c)Intubation may be required with severe "Grand Mal" - type seizure events
This report details the issues associated with the applicant’s medical conditions:
Dravet syndrome, also known as Severe Myoclonic Epilepsy of Infancy (SMEI), is a severe lifelong form of epilepsy that begins in the first year of life with frequent and/or prolonged seizures. Common issues associated with Dravet syndrome, as experienced by many with this condition and some of which Felicity has/does experienced:
(a)Prolonged seizures and frequent seizures
(b)Developmental delays
(c)Movement and balance issues
(d)Orthopaedic conditions
(e)Delayed language and speech issues
(f)Sleep disturbance with difficulties getting comfortable and settled
(g)Has some tendency’s [sic] of sensory integration disorders
(h)Disruptions of the autonomic nervous system (which regulates things such as body temperature and sweating)
The report lists medications and current treatments:
[The applicant’s] medication regime is under ongoing review and changing as required. Her current medications are:
(a)Topiramate
(b)Clonazepam
(c)Midazolam (PRN) When required
The current treatment options are limited, and there is a requirement for constant care and monitoring.
Dr Jenkins’ report, as well as describing issues related to Dravet syndrome, also describes common issues associated with epilepsy, intellectual disability/developmental delay, and autism. The report states that these are all permanent, long-lasting conditions that may change in presentation over the applicant’s life, however, will always be a factor in how she is able to do daily tasks such as needing 24/7 care by her family. The report then sets out detailed reasons for the applicant to receive funding for all of the supports requested by the applicant.
Oral evidence of Dr Christine Jenkins
Dr Jenkins was due to give evidence before the Tribunal by telephone on 22 March 2021 at 11.00am. The Tribunal attempted to ring the surgery on eight occasions from 11:00am to 11.30am but the telephone number was engaged. During that period, the Tribunal also sent to the surgery an email advising that the Tribunal was endeavouring to contact Dr Jenkins but received no reply.
Ms Isherwood was also unable to contact Dr Jenkin’s during that time. Due to further difficulties in arranging a time for Dr Jenkins to give evidence by telephone, she was summonsed to give evidence and appear in person before the Tribunal.
Dr Jenkins appeared before the Tribunal on 18 May 2021 and confirmed that she has been the applicant’s treating general practitioner ‘since she was born’. Dr Jenkins did not bring with her the medical practice notes in relation to the applicant. She did, however, bring with her the medical report of 19 October 2020.
Dr Jenkins indicated that she sees the applicant three or four times a year with the most recent appointment about two weeks before the hearing.
Dr Jenkins said that she sees the applicant for:
general practice things, and filling out paperwork, and prescribing medication, when she was a child when she got sick, helping advocate for her when she was a student at the …. School, all that sort of stuff.
Dr Jenkins indicated that she never sees the applicant alone; she is usually with her mother and her sister or multiple sisters. Dr Jenkins said that recently the applicant does not respond to her questions verbally but that she ‘indicates her responses to her family members who then interpret’. When asked how the applicant indicates her responses Dr Jenkins told the Tribunal she uses gestures and that the family knows what she wants most of the time and she is quite capable of disagreeing if she wanted.
Dr Jenkins was asked the reason for the consultation two weeks ago. Dr Jenkins answered: ‘I forget’. She could not recall any one consultation she had with the applicant in the 22 years she had been her consulting general practitioner.
Dr Jenkins offered that the applicant last came in using her wheelchair, with her assistance dog and two family members. Dr Jenkins could not recall any recent consultations when she had seen the applicant with respect to any pain or discomfort. Dr Jenkins, when asked if there were any conditions for which she was consulted by the applicant, responded: ‘coughs and colds when she was a child, prescriptions’.
When asked about any conditions she had seen the applicant for as an adult, Dr Jenkins responded: ‘all her various different conditions but nothing acute’. When asked if she could recall any consultation in particular when the applicant had to communicate what the problem was and why she was seeing Dr Jenkins, Dr Jenkins responded: ‘No, because her family tells me’. When asked for an example of something that the family had told her that they were there to see her about, Dr Jenkins stated: ‘background for writing reports, a form for the special Olympics’. When asked if she could provide an example of when the applicant had been to see her for medical treatment in relation to a condition, Dr Jenkins replied: ‘no’. Dr Jenkins indicated that the applicant’s mother would do most of the communicating, including telling the doctor what they were there for, what the applicant’s capacity and capability is, and the report was prepared using material provided by the applicant’s mother and her sisters. Dr Jenkins said that the applicant’s mother and sisters were her information source in relation to the applicant.
Dr Jenkins told the Tribunal that she had spoken to the applicant’s previous and now retired paediatric neurologist, Dr Michael Harbord, many years ago when the applicant was a child. Dr Jenkins told the Tribunal that she thought a functional capacity assessment had been completed for the applicant but could not recall by whom or when this was done.
Dr Jenkins indicated that she had received reports and recommendations in terms of treatment and medication from Dr Harbord up until a few years ago. Dr Jenkins told the Tribunal she thought she had made a referral to Dr Norton, the applicant’s current paediatric neurologist, and may have received a letter back from him although she cannot recall.
The most recent form Dr Jenkins remembers completing for the applicant was a Special Olympics form in which she stated that the applicant could compete in the Special Olympics with help. The Tribunal notes, according to Ms LI, this was in or about 2010. Dr Jenkins stated that she had not witnessed the applicant riding a horse but that her family had told her that she had not fallen off or had a seizure while riding and that she enjoys riding. Dr Jenkins did not know how often the applicant rode or whether she was riding at the moment, but thought it was a few years ago that she last rode.
In answer to a question from the respondent’s counsel, Dr Jenkins told the Tribunal that the applicant’s sister prepared the majority of the report dated 19 October 2020. When asked what part of the report she did prepare, Dr Jenkins answered: ‘I asked for advice from the family because I don’t live with them, and [I] certainly checked everything’. When asked whether, apart from turning her eye over it and applying her stamp, she had prepared the report, Dr Jenkins answered ‘No’.
Dr Jenkins told the Tribunal that any professional attending the applicant’s house would be impeded in assessing her function because the applicant would not participate because she would not cooperate. Dr Jenkins confirmed that she had not witnessed the applicant’s behaviour at home for many years, since she was a child.
When asked by the Tribunal if the diagnosis contained in the report of 4 March 2020[22] was her diagnosis, Dr Jenkins said that it was not. She went on to say autism is usually diagnosed by a paediatric neurologist or a psychologist and Dravet syndrome is a very rare thing only ever diagnosed by a paediatric neurologist and that she had received reports over the years with those diagnoses.
[22] (2020/2025) T1(E), page 39.
Consideration
The fundamental issues in this hearing were the nature and extent of the applicant’s functional capacity as a consequence of her agreed medical conditions, and whether the claimed supports were reasonable and necessary supports to be funded by the Scheme.
Insofar as the applicant sought review of the internal review decision dated 11 November 2019, which declined the request for the applicant’s plan to be self-managed, the applicant’s plan was changed to a self-managed plan from 29 March 2019. The evidence presented to the Tribunal did not address that aspect of the application for review, nor invite the Tribunal to make any other decision other than the general issue in relation to the reasonable and necessary supports.
The evidence before the Tribunal was directed to whether the disputed plan supports contained in both applications for review were reasonable and necessary.
The respondent through counsel Mr d’Assumpcao in his opening made very clear the respondent’s position that there was, at this time, an absence of independent objective and current evidence upon which the Tribunal could be satisfied that the claimed supports were reasonable and necessary as required by s34(1)(a) – (f) of the Act. Further, the respondent submitted that insofar as there was evidence about the condition of Ms Isherwood’s home, there was a lack of evidence to distinguish between whether the requested home modifications were reasonable and necessary supports consequent upon the applicant’s medical condition, or general wear and tear expenses that were reasonably expected to be paid, for example, by the family.
The Tribunal received a letter from the applicant titled “Letter from Applicant declining OT full functional assessment” dated 2 October 2020[23], which said that the applicant did not agree to an occupational therapy full functional assessment and listed 10 reasons for that refusal. It was clearly a document authored by the applicant’s mother and or family members. Amongst other things, the reasons included:
(a)The existing occupational therapy report dated 7 June 2018 is still relevant, and nothing has changed;
(b)The doctor’s report dated 4 March 2020 from Dr Jenkins confirmed that the occupational therapist and builders’ reports are still current and represent the applicant’s needs; and
(c)The applicant does not want and does not feel comfortable with anyone watching her perform daily functions and referred to trauma and difficulties experienced by the applicant at school and with support workers and teachers, TAFE lecturers and horse-riding coaches.
[23] Exhibit D.
The contents of Dr Jenkins’ report dated 4 March 2020 are referred to above. We are not satisfied that, on its face, the report confirms that Dr Jenkins is saying that the occupational therapy and builders’ reports are still current to the applicant’s needs. That is an interpretation that Ms Isherwood places on the report that is unsupported by evidence. For example, Dr Jenkins had not witnessed the applicant at home since she was a child. As will be referred to later, the Tribunal has serious concerns about the reliability of Dr Jenkins and the evidence she presented to the Tribunal.
However, the occupational therapy report was obtained at the request of the NDIA for the purpose of a functional capacity assessment. The applicant’s representatives chose Mr Wayne Allen. The applicant would not cooperate with the occupational therapist who was unable to observe any aspect of the applicant’s functional capacity. Hence, the report including the applicant’s functional capacity was based on information provided by Ms Isherwood and her family and was not founded on any medical evidence about the applicant nor any independent observation of the applicant or independent corroborative evidence about the applicant and her functional capacity.
The occupational therapist received from the family a list of the applicant’s goals, and other information from Ms Isherwood and the family, which he used to prepare his report. The age of the report is arguably not fatal in terms of accepting its content. It is the foundation of the report that, for the reasons we will explain later, go to the probative value of its content.
After hearing the evidence of Ms LI and before hearing evidence from Mr Gardiner and Dr Jenkins, the respondent invited the applicant to consider permitting the respondent to obtain an assessment of the applicant’s home and, if possible to minimise any fear the applicant would face, that Dr Jenkins be invited to be involved in that assessment, the cost of which would be paid by the respondent. The hope was that such an assessment may assist in resolving some, if not all, of the issues between the parties, or at the very least assist the Tribunal when considering what were reasonable and necessary supports as required by s34(1)(a) – (f) of the Act, and provide something in the nature of functional capacity evidence that may be referable to the supports in dispute.
The Tribunal invited Ms Isherwood to consider that request and indicated that the Tribunal would grant an adjournment of the hearing to give her time to take some advice, speak to her family and make an informed decision, and, if agreed, undertake that home assessment. Ms Isherwood did not want to obtain advice or speak to her family and declined the respondent’s invitation. The hearing continued.
Mr Gardiner said that he was asked to provide an opinion of what could and should be done to the property to make it as user-friendly as possible, and he therefore gave his opinion on everything he was asked to look at. Hence, as can be seen from his report, it included a broad range of repairs which included guttering, drainpipes, wiring to the shed, replacement of the fence, driveway repairs, in addition to more significant repairs to the bathroom, laundry, and kitchen.
Mr Gardiner said that a lot of the work requested was general wear and tear inherent in an old property. The property was built in 1976. The kitchen was in bad condition and did not accommodate wheelchair access. However, there is no evidence before the Tribunal that the repairs to the kitchen are any more than a renovation, given the passage of time, to replace a kitchen that is old and worn out. There is no evidence before the Tribunal about kitchen renovations that are specific to the needs of the applicant given her disabilities, and whether wheelchair access imposed an additional cost that was reasonable and necessary and satisfied the criteria in section 34(1)(a)-(f) of the Act.
Similarly, with the bathroom. The report of the Occupational Therapist Mr Allen says that the Domiciliary Equipment Services commenced wet area modifications to the home for the applicant’s ongoing safety. It is reported that Ms Isherwood understood the continuation of the works to complete the wet areas will be assumed by NDIS, but there is no evidence of that arrangement. Mr Allen reported a significant number of issues with the bathroom, details of which were provided to him by Ms Isherwood.
Renovations to the bathroom have been the subject of building contractor disputes for over six years between Ms Isherwood and those engaged to perform the work. Ms Isherwood may have a grievance in relation to the location of the drain as suggested by Mr Gardiner, but it is not the function of the Scheme to make good privately contracted renovation works that have not been performed to an appropriate standard.
There may be aspects of the renovations that need to be considered specific to the applicant’s needs that are reasonable and necessary. That, for example, might include accommodating wheelchair access, grab rails, non-slip flooring, a shower seat, and other items necessary to ensure the applicant’s safety. However, there is no independent evidence before the Tribunal about those renovations relevant to the applicant’s specific needs that are reasonable and necessary supports in consequence of her particular disability and that comply with s 34(1)(a)-(f) of the Act.
The failure to have a functioning bathroom for six years has resulted in the deterioration of the laundry in consequence of its use as a substitute bathroom. This has resulted in water damage and leaking. However, the production of a list of renovation costs to the laundry does not, on its face, or by the mere fact that the applicant lives in the family home, translate to those renovation costs being reasonable and necessary supports for the applicant pursuant to s34(1) of the Act.
This is similarly the case with each of the items referred to in the renovation cost of Mr Gardiner. This is not a criticism of Mr Gardiner. He has satisfied the brief given to him by Ms Isherwood to go through the house and cost all renovations and repairs to make the home compliant for the use of her daughter. He was told by Ms Isherwood that one of her daughters had a disability requiring full time care. The family want to remain in the home and care for the applicant and want the home to be more accessible and suitable for the applicant’s needs.
However, re-wiring the shed, replacing the shed door and existing barbeque, repairs to the driveway, refencing, replacing rocks on the edge of the driveway and building a retaining wall are just some further examples of the extensive list of renovations sought by Ms Isherwood and her family and, in relation to which list, there is an absence of independent evidence linking the applicant’s disabilities and functional capacity to those renovations.
The applicant is also requesting a swimming pool. Mr Gardiner reported that the applicant:
…would love to swim regularly as substantially [sic] improved her wellbeing however [she] finds it extremely hard to go to the beach or a public swimming pool as she’s unable to regulate her body heat.
He also referred to the temperature change when entering and exiting the car as being too extreme and consequently the applicant is prevented from being able to leave the house to swim. He also referred to the challenges of moving her wheelchair on the sand and challenges taking the applicant’s seizure response dog to swimming centres.
Those comments in Mr Gardner’s report are clearly the view expressed by Ms Isherwood and family members and not supported by Mr Gardner’s own observation or independent evidence from an appropriately qualified practitioner. We note similar comments about the benefit to the applicant in the building quote of Mr Brian Moir of Dolphin Homes dated 15 July 2018[24].
[24] Exhibit C.

There is an absence of independent evidence about the nature and extent of the applicant’s use of and need for a wheelchair, particularly in and around the home, and which are referable to the proposed renovations. The applicant’s ability to walk in and around the home may also be a relevant consideration.
The report of the occupational therapist also refers to the applicant gaining “considerable therapeutic benefit from floating on water, even for short periods of time”, which is not expressed as his opinion and is also not supported by independent evidence, and relies on the opinion of Ms Isherwood and family members. The occupational therapist also reports the family considered installing a medium-sized aboveground pool and commenced ground works, but the project was discontinued. The report is a restatement of the opinions of Ms Isherwood and the family and is not linked to an independent functional capacity assessment which the occupational therapist was qualified to perform but was not able to do as the applicant would not engage with him.
Importantly, the Operational Guideline for home modifications reads:
the NDIS will generally not fund the installation of swimming pools (including hydrotherapy) and spas.
There is no independent evidence based on a functional assessment of the applicant that supports the installation of a swimming pool. The Operational Guideline is not an absolute prohibition to the funding of swimming pools but provides a general expectation that such cost will not be funded by the Scheme. Given the paucity of evidence in relation to why in the unique circumstances of the applicant the Scheme should provide funding for the installation of a swimming pool, we are satisfied that the Operational Guideline and the general prohibition applies in the circumstances of this matter. There is no basis upon which the Scheme should fund a swimming pool as a reasonable and necessary support.
The applicant has requested the NDIA fund the purchase of a new motor vehicle. The Operational Guideline relevant to vehicle modifications provides that the NDIA must be satisfied, amongst other matters, that the vehicle modifications represent value for money and, before funding vehicle modifications, the NDIA will consider the effectiveness of those modifications having regard to a number of considerations, including whether the modifications have been prescribed by a suitably qualified occupational therapist. The Guide also provides that the NDIA will generally not fund the purchase of a motor vehicle.
Once again, the Guide is not an absolute prohibition to funding the purchase of a new motor vehicle but provides a general expectation that the purchase cost of a new motor vehicle will not be funded by the Scheme.
Similarly, there is a paucity of independent evidence about the need for a new motor vehicle modified and suited to the applicant’s needs. There is evidence from Ms LI explaining the issues the family have with the current motor vehicle but again, in the absence of independent evidence addressing the applicant’s functional capacity and the unsuitability of the current motor vehicle, and the need for a replacement motor vehicle and its customisation to meet the applicant’s special needs, we are not satisfied that a new motor vehicle is a reasonable and necessary support and that the requirements of s34(1)(a)-(f) of the Act are satisfied.
The applicant has also sought within the program of support, funding for an assistance dog. Once again there is a paucity of evidence directed to the applicant’s current need and purpose for such funding or the cost sought. There is no evidence before the Tribunal about the working life of Sparkles. The evidence of Ms LI is that Sparkles assists with the applicant’s medical condition by alerting family members of a pending seizure, including up to one or two days before the seizure occurs and also when the seizure is occurring. However, the joint medical reports of Dr Meyers and Professor Scheffer and particularly Dr Graham Norton need to be considered when having regard to the funding of an assistance dog.
Dr Norton did say that the applicant continues to have episodes of prolonged unawareness, complaints of being dizzy, having a headache and having intermittent abnormal smells and tastes and will then switch off. These symptoms again have been present for many years. In referring to the testing as recommended by Dr Myers and Professor Scheffer, Dr Norton opined:
After prolonged monitoring of several days, it was felt that the episodes which were causing concern were in fact functional and behavioural and were not true epileptic seizures in the accepted sense.
…
…indeed it would appear that it has been many, many years since this young woman has had what I would have called a generalised tonic clonic seizure or myoclonic jerks and that those episodes of which the family complain, are not epilepsy.
He continued:
... I think [the applicant’s] mum is somewhat confused about the concept of stress-related events in the diagnosis of epilepsy and still uses that term in her discussion with me.
Hence, the evidence of Ms LI and the submissions of Ms Isherwood about the applicant’s ongoing seizures, including tonic-clonic seizures, suggest that the family may not have a clear understanding of the applicant’s complex medical condition and, by extension, the need for and nature and training of an assistance dog specific to the applicant’s needs.
There is no evidence before the Tribunal about any handover from Sparkles to another dog, when that is likely to occur, from where the dog will be sourced, the nature of any training and engagement with the applicant, and associated costs.
The Operational Guideline – Assistance Animals provides guidance to the NDIA in the provision of assistance animals. There is no evidence that a proposed dog meets the definition of an assistance animal as contained within the guideline, albeit an example of a Medical Alert Animal is ‘an epilepsy seizure dog’. Epilepsy seizure dogs are intended to assist the person having a seizure by alerting the caregiver to the seizure, by moving in a way to protect the person having a seizure, or by activating an alarm.
The extent of the evidence before the Tribunal that Sparkles alerts the family of the pending seizure including up to two days before they occur, when viewed against the medical opinion that the applicant has not suffered a tonic-clonic seizure for many years, and that the applicant’s observed conditions were arguably functional and behavioural and not true epileptic seizures in the accepted sense, raises a number of questions about whether the applicant satisfies the requirements of the operational guidelines with respect to an assistance dog.
Again, there was a paucity of evidence addressing that funding for an assistance dog is a reasonable and necessary support, and further evidence needs to be presented before the Tribunal can be satisfied that an assistance dog is a reasonable and necessary support.
Underpinning the applicant’s application was the report of Dr Jenkins. The Tribunal is very concerned about that report and the reliability of Dr Jenkins.
Dr Jenkins was unable to give evidence about any consultation she had with the applicant over the 22 years that she was her general medical practitioner. The contents of her report did not contain factual observations made by Dr Jenkins of the applicant in her day to day life. She had not relevantly observed the applicant at her home and her principle role was to write scripts and fill in forms such as for the Special Olympics which occurred some years ago. She did not make any medical diagnosis of the applicant and relied on the diagnosis of the specialist medical practitioners consulted by the applicant.
Hence, Dr Jenkins’ report was the signing off on information provided to her by the family and not observations she made and opinions she reached in a diagnostic setting. The reported triggers that can give rise to a seizure, the applicant’s presentation when suffering a seizure, manual handling requirements, accommodation requirements, daily living activities, current equipment, new vehicle modifications, together with the other observations raised in the report were the opinions and observations of Ms Isherwood and her daughter Ms LI and not of Dr Jenkins.
All Dr Jenkins could speak to was the applicant’s presentation in her surgery with family members and the manner in which the applicant communicated with her. Dr Jenkins had not engaged with or observed the applicant outside of her surgery setting. To sign a report that she had not authored, in relation to factual circumstances about which she made no observation, was wholly unsatisfactory.
The report was not Dr Jenkins’ report and was not an informed medical opinion.
Of particular concern is that Dr Jenkins must have known that, insofar as the report referred to the applicant’s seizures and to tonic-clonic or myoclonic seizures, the report from Dr Norton, previously received by her, clearly indicated that the applicant had not suffered from such a seizure for a number of years and that the episodes observed were in fact arguably functional and behavioural and were not true epileptic seizures. To not refer at all to Dr Norton’s report, and to merely sign off on a prepared statement authored by the applicant’s family as her report, was wholly unsatisfactory and apt to mislead the Tribunal as to the applicant’s medical condition and needs. It is particularly disappointing to the Tribunal that Dr Jenkins’ report titled “AAT Doctors Assessment / report” was not an expression of her observations and diagnosis of the applicant and was not a report prepared by her from her own knowledge or as provided to her by medical specialists.
The Tribunal is reminded of the Administrative Appeal Tribunal Guideline for Persons Giving Expert Opinion Evidence (AAT Guideline). It would appear that Dr Jenkins did not receive a copy of the Guideline when engaged to give the report. The AAT Guideline includes:
Guideline 3 ‘Duty to the AAT’ provides:
A person giving evidence based on his or her special knowledge or experience in an area:
(a) has an overriding duty to provide impartial assistance to the AAT on matters relevant to the person’s area of knowledge or experience;
(b) is not an advocate for a party to a proceeding.
Guideline 4 ‘Reports’ provides:
4.1. A written report prepared for the purpose of proceedings in the AAT must include the following information either in the body of the report or as an annexure:
(a) details of the person’s area of knowledge and his or her qualifications and/or experience;
(b) the letter of instruction or details of the questions or issues the person was asked to address in the report as well as a reference to any documents or other materials the person was given to consider;
(c) details of any facts and assumptions that inform the report and the sources for the factual information in the report;
(d) reasons for any opinion that is expressed.
4.2. Where relevant, the written report must also include the following information either in the body of the report or as an annexure:
(a) details of any examinations, tests or other investigations upon which the person has relied in preparing the report as well as the identity, qualifications and experience of the person who conducted any examinations, tests or investigations;
(b) details of any literature or other material relied on particularly in preparing the report.
4.3. If the person preparing the report believes that his or her opinion is not a concluded opinion or the person is unable to reach a concluded opinion for any reason, this must be stated in the report. Where the person believes the report may be incomplete or inaccurate without some qualification, that qualification must also be stated in the report.
4.4. A person preparing a report must make it clear when a particular question or issue falls outside his or her field of knowledge.
Dr Jenkins was engaged through Ms Isherwood who did not have experience in the conduct of proceedings before the Tribunal and we do not criticise her for not producing the AAT Guideline to Dr Jenkins. But the Guideline highlights the important function of an expert witness in providing evidence based on his or her special knowledge or expertise, and that such evidence be impartial and not advocate for a party.
There was no evidence of any examination, test or other investigation upon which Dr Jenkins relied, if not in preparing the report, then by adopting its content and by signing the document placed before her by the applicant’s family.
The Tribunal does not accept Dr Jenkins as a reliable expert witness upon whose opinion the Tribunal can rely.
CONCLUSION
To the extent that the Tribunal received evidence about the applicant’s functional capacity, that evidence was from her sister Ms LI or as communicated to the occupational therapist Mr Allen, the builder Mr Gardiner, and Dr Jenkins by the applicant’s family. That asserted functional capacity has not been the subject of independent and current assessment by an appropriately qualified practitioner.
Further, to the extent that Ms Isherwood and Ms LI continue to refer to the applicant suffering seizures including tonic-clonic seizures, the medical evidence before the Tribunal indicated that is not the case and, arguably, there are functional and behavioural issues which impact upon the applicant’s behaviour.
The views expressed by family members about the applicant and her needs may be understood given their love and dedication to her and strong desire to improve her life, but the Tribunal needs evidence other than from family members to be reasonably satisfied about the applicant’s functional capacity and reasonable and necessary supports.
Ms Isherwood refused the invitation during the hearing to permit a home assessment to occur with the assistance of Dr Jenkins. This was unfortunate, particularly after subsequently hearing the evidence of Dr Jenkins, whose evidence the Tribunal does not rely.
Ms Isherwood’s explanation for the refusal to permit anyone to undertake the home assessment was in part, that the applicant does not engage with strangers, distrusts others and would be upset by others attending the home. Yet the applicant attends TAFE classes regularly, albeit with family members. She is studying to become an actress. She has previously engaged in horse riding, albeit not since about 2016. One of the reasons provided for the need for a swimming pool is so that the applicant can have her friends come over. Hence, she has demonstrated some capacity to engage with or be in the presence of others.
There are inquiries that the NDIA must undertake to ensure that requested supports are reasonable and necessary, and that public funds are used in accordance with the objects of the Act and satisfy the reasonable and necessary criteria referred to in s34(1)(a)-(f) of the Act.
The applicant’s complex issues must be distressing to Ms Isherwood and her family. They have coped with a lot of issues. It is clear that the family, and in particular Ms Isherwood, has been in dispute with the applicant’s kindergarten, schools, riding school, TAFE, together with building contractors engaged to work on their home and the NDIA. As Ms Isherwood said in her opening and Ms LI said in her evidence, they have had to fight for everything for the applicant. It would appear that it is that approach which has driven the manner in which the proceedings and the interaction with the NDIA have been conducted.
Clearly Ms Isherwood’s home is in need of repair. That the applicant has not had the benefit of a functioning bathroom for six years is a serious concern. However, the Tribunal received no evidence about the use of those funds available under the applicant’s current plan, save that Ms LI said there was not enough money to meet the cost of the bathroom modifications. Again, the question of the bathroom repairs was further compounded by the absence of any independent reliable evidence about the applicant’s functional capacity and the requested supports in dispute.
The list of home renovations was very long and generally in the nature of wear and tear home repairs or replacements. But the fact that Ms Isherwood has a daughter with disabilities living in the family home does not mean that the wear and tear expenses are to be met by the Scheme. If that were the approach to funding such requests for supports, it would arguably result in the Scheme not being financially sustainable and ensure the availability of funds to those who may seek access to the Scheme.
As we have said, the evidence in relation to the applicant’s current functional capacity comes solely from Ms Isherwood or Ms LI or members of their family as communicated to others such as the occupational therapist Mr Allen, Dr Jenkins and Mr Gardiner. Ms Isherwood’s assessment of the applicant’s various conditions and their impact upon her, albeit genuinely held, do not necessarily accord with the available medical opinion as indicated by Dr Norton who has reported that there are functional and behavioural aspects to the applicant’s presentation.
Hence, the Tribunal agrees with the respondent’s submission that there is a lack of independent, objective and current evidence upon which the Tribunal could be satisfied that the claimed supports were reasonable and necessary as required by s34(1)(a) – (f) of the Act.
The applicant’s assistance dog was put in place before the Scheme came into operation. In respect of the request for an assistance dog to be included in the plan supports, once again there is a lack of evidence before the Tribunal. The fact that the applicant currently has an assistance dog does not mean, in the absence of evidence, that automatically a plan should include now or in the future funding for an assistance dog. The Tribunal must have regard to s34(1)(a)-(f) of the NDIS Act as further elaborated by the Support Rules.
Rule 5.1 of the Support Rules provides that a support will not be provided or funded under the NDIS if:
it is likely to cause harm to the participant or pose a risk to others; or
it is not related to the participant’s disability; or
it duplicates other supports delivered under alternative funding through the NDIS; or
it relates to day to day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
Section 14.6 of the Including Specific Types of Supports in Plans Operational Guideline - Assistance Animals states that the NDIA will generally not provide funding to train a dog before it has become a qualified assistance animal. The reasons include the lack of a guarantee that the dog will complete the training successfully. Assistance dogs must satisfy the public access test and medical requirements pursuant to the Disability Discrimination Act 1992. The NDIA will only recognise training organisations that are listed on the Assistance Dogs International (ADI) website, that is, dogs that are ADI accredited. In South Australia, the regulatory body under the Dog and Cat Management Act 1995 (SA) prescribes accreditation bodies for accrediting assistance dogs. There are organisations that have the ADI accreditation that do not meet the NDIS requirements for state registration.
It is not apparent on the evidence before the Tribunal what the applicant is asking the Tribunal to provide in the program of supports which may include for example, ongoing funding for accreditation of Sparkles or the cost associated with a transition to a replacement assistance dog, as it related to the applicant’s disability.
The applicant through her representatives needs to engage with the NDIA with respect to the assistance dog supports sought by the applicant, including how the assistance dog is related to the applicant’s disability. In circumstances where the applicant’s medical condition is viewed differently by Ms Isherwood and her family to the opinion of Dr Norton, further clarification of her condition is required, and that the role and function of an assistance dog is relevant to her disability and is reasonable and necessary.

The applicant’s request for a new motor vehicle lacks evidence in support of the request. It is insufficient for Ms Isherwood or the family to request a new motor vehicle without evidence supporting the request which satisfies s34(1) of the Act and the Guide. As we have referred to above, the Guide provides that the NDIA will generally not fund the purchase of a motor vehicle and that the NDIA must be satisfied, amongst other things, that the modification represents value for money and that the modifications have been prescribed by a suitably qualified occupational therapist.
Once again, the Tribunal would be assisted by a functional capacity assessment or at the very least an assessment by an appropriately qualified practitioner who is not reliant solely on information provided by Ms Isherwood and the family in coming to an opinion.
Similarly, the applicant’s request for a swimming pool is unsupported by evidence and there is no basis upon which the Tribunal should not have regard to the Operational Guidelines which provide that:
the NDIS will generally not fund the installation of swimming pools. The provision of a swimming pool is not a reasonable and necessary support within the meaning of s34(1) of the Act and the Guide.
Counsel for the respondent said in opening:
having regard to the evidence, the Tribunal could not at this time be satisfied that the supports claimed by the applicant were reasonable and necessary. There was a need for independent, objective and current evidence which was absent in this matter.
There was an opportunity given to Ms Isherwood to adjourn the hearing to enable further assessment to be performed in an endeavour to place before the Tribunal evidence which may support the application and as required by s34(1) of the Act. The Tribunal offered Ms Isherwood that opportunity and she declined. The Tribunal again during the hearing invited her to reconsider her opposition to an assessment. She remained adamant that no third party was going to be permitted to conduct an assessment.
The Tribunal is not satisfied on the evidence about the functional capacity of the applicant and that the requirements of s34(1)(a)-(f) are satisfied. Further, insofar as Mr Allen, Mr Gardiner and Dr Jenkins have expressed an opinion about the applicant including functional capacity, each opinion is based on information provided by Ms Isherwood and her family and not independent observation. Dr Norton’s opinion following an assessment of the applicant, suggest there are functional and behavioural issues impacting upon the applicant and that episodes of which the family complain are not “true epileptic seizures in the accepted sense.”
We accept that the opinions of Ms Isherwood and Ms LI are genuinely held, however, the Tribunal is not satisfied that this is reliable evidence about the applicant’s medical condition, giving rise to her presentation and what are reasonable and necessary supports in accordance with s34 of the Act.
We are left with the impression that Ms Isherwood and Ms LI have approached the issue of the program of supports on the basis that they have had to fight for everything for the applicant in the past and this is no exception. There appears to be an unfortunate suspicion and resistance to engage collaboratively with NDIA to achieve a desired outcome to the benefit of the applicant.
After the hearing, we asked for copies of those other medical reports to which we have referred. Unfortunately, they did not assist the Tribunal other than to give a general overview of her condition and in part a diagnosis different to the view of the applicant’s family about her medical condition over the last few years.
The evidence before the Tribunal was unsatisfactory. We agree with the respondent’s submission that there was a lack of independent, objective and current evidence from which the Tribunal could be satisfied, at this time, that the claimed supports were reasonable and necessary.
DECISION
The decisions the subject of the applications for review are affirmed.

I certify that the preceding two hundred and fifteen (215) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth and Member G Hallwood

..................[SGND]..........................
Dated: 27 August 2021

Date of hearing: 22 March 2021, 18 May 2021

Advocate for the Applicant:
Ms Belinda Isherwood (Applicant’s mother)

Counsel for the Respondent
Mr Paul d’Assumpcao

Date of hearing:	22 March 2021, 18 May 2021
Advocate for the Applicant:	Ms Belinda Isherwood (Applicant’s mother)
Counsel for the Respondent	Mr Paul d’Assumpcao