James and National Disability Insurance Agency - [2023] AATA 2991

James and National Disability Insurance Agency [2023] AATA 2991 (15 September 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number:2022/4336
Re:Ronald James
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member K Buxton
Date:15 September 2023
Place:Brisbane

The decision under review is set aside. The matter is remitted to the Respondent with a direction that:
a)the “statement of participant supports” in the plan dated 28 February 2022 is to include sufficient funding to meet the maintenance expenses for the Applicant’s assistance dog, with effect from 28 February 2022;
b)all other supports (except those funded on a one-off basis) be replicated on a pro-rate basis until the reassessment date; and
c)the reassessment date is 15 September 2024.

..............................[SGD].....................................
Senior Member K Buxton
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – application for review of decision to approve statement of supports in participant plan – whether support is reasonable and necessary – maintenance for assistance dog – decision under review set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Klewer v National Disability Insurance Agency [2023] FCA 630
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Pavlakis and National Disability Insurance Agency [2023] AATA 2485
Secondary Materials
Explanatory Memorandum, National Disability Insurance Scheme Bill 2012 (Cth) 1
National Disability Insurance Scheme Operational Guideline – Assistance Animals including Guide Dogs 20 June 2022
REASONS FOR DECISION
Senior Member K Buxton
15 September 2023
INTRODUCTION

The Applicant has applied to the Tribunal,[1] pursuant to section 103 of the National Disability Insurance Scheme Act 2013 (“the NDIS Act”), for review of a decision of the National Disability Insurance Agency (“the NDIA”) dated 21 April 2022.[2] In broad terms, the decision concerned the NDIA’s refusal to include various funded supports.
[1] Joint Hearing Bundle (HB), A1, p. 1.
[2] HB, A1, p. 9, which confirmed an earlier decision made on 28 February 2022: HB, A1, p. 68.
The Applicant is 68 years of age and is a participant of the NDIS. He lives with bipolar disorder, a visual impairment and rheumatoid arthritis, chronic anxiety and chronic obstructive pulmonary disease. For some years the Applicant has enjoyed the companionship and support of his dog, Spike, an Affen Pinscher. Spike has been trained by the organisation “MindDog Australia” (MindDog). The Applicant has stated that he previously received funding through the NDIS to assist with the costs of maintaining Spike until his plan was re-issued in February 2022. On and from that date no provision was made for the costs of Spike in the Applicant’s plan. The Applicant seeks a decision that maintenance costs for Spike be specified in the statement of participant supports to be included in his plan.
On 28 February 2022 the NDIA approved a Statement of Participant Supports (SPS) for the Applicant under subsection 33(2) of the NDIS Act for the two-year period 28 February 2022 to 28 February 2024. The SPS specified total funding of $200,294.78 including funding for core supports in the amount of $166,967.74. Funding for certain supports requested by the Applicant, being funding for the maintenance of an assistance dog and for a motorised scooter, were determined not to be reasonable and necessary supports pursuant to subsection 34(1) of the NDIS Act. The decision under review, made on 21 April 2022, confirmed the 28 February 2022 decision and it is from this decision that the Applicant applied to the Tribunal for review.
In February 2023 the parties reached a partial agreement about supports to be funded and requested that the Tribunal remit the decision for reconsideration pursuant to section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), noting the NDIA’s intention to recommend to a delegate that funds for a motorised scooter be included in reasonable and necessary supports specified in the Applicant’s SPS in accordance with subsection 34(1) of the NDIS Act. On 16 February 2023, the Tribunal remitted the decision to the NDIA and as a result of the remittal, on 1 March 2023, the total funding specified in the SPS was increased, pro rata, to $60,316.31 for the six-month period from 1 March 2023 to 30 August 2023. The re-made decision included $6,649.81 in capital supports to fund the mobility scooter, but no funding for an assistance animal, and all previous supports were continued on a pro-rata basis until 30 August 2023.
By operation of section 42D of the AAT Act, the reconsidered decision of 1 March 2023 became the reviewable decision. The Respondent submitted that, by that decision, it had provided the Applicant with “a new plan”.[3] However, because section 48 of the NDIS Act had not been engaged, and for the reasons set out in the decision of Pavlakis and National Disability Insurance Agency[4] (Pavlakis), that decision cannot operate as a “new” plan. When exercising powers on remittal, the delegate can only make a decision that is open to the Tribunal on review, and that review is limited to a reconsideration of the approved Statement of Participant Supports in an existing plan. This approach is consistent with the Respondent’s submission that the Tribunal is to stand in the shoes of the CEO’s delegate and to re-exercise the functions of the delegate subject to the same statutory constraints as the delegate.[5]
[3] HB p. 178, Respondents SFIC [8].
[4] [2023] AATA 2485 (10 August 2023) see [14] to [39].
[5] HB p. 178, Respondents SFIC [15] and the cases there referred to: Esber v The Commonwealth (1992) 174 CLR 430 at 440. See also Le v Comcare [2014] AATA 291 at [43], Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419.
This leads to a question about the scope of this review, given that, so long as a valid new decision has been made following the remittal, this process is now an application to review the new decision.[6] For the reasons explained above, to the extent that the 1 March 2023 decision purports to operate as a new plan, that part of the decision is beyond power. If, as a result of erroneous aspects of the reconsidered decision made on 1 March 2023, there has effectively been no decision, the deeming provision in subsection 42D(7) of the AAT Act would operate so that the decision is taken to affirm the earlier decision. However, where, on reconsideration, a decision-maker has erroneously misconstrued its own task and arrived at a reviewable decision that is partially ultra vires, such as by purporting to decide to issue a new plan without the statutory power to do so, that erroneous aspects of the decision does not operate to constrain the extant review jurisdiction of the Tribunal to conduct a de novo review.[7] As stated in Pavlakis, where a decision is partly ultra vires the erroneous aspect may be severable from the balance of the decision.[8] The Tribunal has adopted that approach in this case.
[6] By operation of subsection 42D(4) of the AAT Act.
[7] Pavlakis at [26].
[8] Esposito v Commonwealth [2015] FCAFC 160 at [110] per Allsop CJ. Fick and Perram JJ.
Having regard to the terms of the 1 March 2023 decision, the Tribunal finds that the updated funded supports and reassessment date are sufficiently identifiable in the document evidencing that decision and that each of these aspects of an approved Statement of Participant Supports is expressly provided for in subsection 33(2) of the NDIS Act. The preferable interpretation of that decision is, therefore, that the 1 March 2023 decision has the effect of setting aside the earlier reviewable decision and substituting a decision to approve a Statement of Participant Supports with specification of updated funded supports and re-assessment date. The other aspects of the document, being the apparent suggestion that a new “participant’s plan” has been issued and asserting a new date of effect of 1 March 2023, are not within the decision-making power of the delegate as they are not authorised under subsection 33(2) of the NDIS Act. They are, therefore, of no effect.
The Tribunal’s jurisdiction to undertake a full merits review of the original decision is retained, albeit with the benefit of clarity that there is no dispute between the parties with respect to the additional supports that now form part of the reviewable decision. The Tribunal’s task is to conduct the review having regard to the description, provided by the Full Federal Court (Justices Rangiah, Perry and Abraham) in QDKH by his litigation representative BGJF v National Disability Insurance Agency[9] of the preparation of a Statement of Participant Supports as; “a collaborative process: the CEO is required to “facilitate” the preparation of a participants plan (section 32(1)) and to prepare the SOPS “with” the participant (section 33(2))”. The CEO is to then “approve” the Statement of Participant Supports. The scope of the Tribunal’s review is, therefore, determined by reference to the scope, now, of the 1 March 2023 decision which, in turn, is informed by the scope of the power under section 33(2) of the NDIS Act.[10]
[9] [2021] FCAFC 189, at [10(d)].
[10] Ibid at [10(b)].
This factual situation differs from that before the Tribunal on review, and subsequently considered by the Federal Court on appeal, in the recently decided Klewer v National Disability Insurance Agency[11] (Klewer). In that case, Justice Raper observed that, “the effect of the power under section 42D is such that the Tribunal’s function transmogrifies from being one about the former plan to be being about the new plan”.[12] In addition to the observations, made above, to the effect that such a review involves a reconsideration of the decision to approve a Statement of Participant Supports in a plan, rather that a review of a plan itself, the observation of Justice Raper would lead to surprising and unintended consequences if a review application, properly constituted, was “transmogrified” by the decision-maker on reconsideration into a review about a different period of time, or with an otherwise narrowed scope, in a way that compromised an Applicant’s review right that had existed up until the reconsidered decision was made. In practical terms, this would impact supports such as that sought by the Applicant in this case, where an allowance is available to participants for maintenance of an assistance animal if that support is reasonable and necessary under section 34(1) of the NDIS Act, and where the Applicant has met such costs himself pending the outcome of this review.
[11] [2023] FCA 630.
[12] Ibid at [201].
The key factual difference between this case and Klewer can be seen from her Honour’s various observations that Mr Klewer had not “run his case” on the basis that he was seeking retrospective re-imbursement for supports that should have been funded prior to the date of the reconsidered decision. To the extent that observations are made in that case about the impact of a reconsideration under section 42D on any “retrospective re-imbursement” to an Applicant for reasonable and necessary supports from the date of the relevant original decision, those observations are not binding upon the Tribunal as they did not from part of the ratio of the Court’s decision.
The concept of “retrospective re-imbursement” of a reasonable and necessary support is not one found in the NDIS Act. Where, on review, the Tribunal is considering whether a support is reasonable and necessary, and from when that funded support should be specified in the Applicant’s Statement of Participant Supports, there is no room for such an unhelpful descriptor. The relevant question for the Tribunal in such circumstances will be, “from what date the support should be specified in the Statement of Participant Supports”. The correct or preferable date of effect for each funded support will be a question of fact in each case. Consistent with the reasoning in Pavlakis; “this may date as far back as the CEO’s original decision if aspects of the SPS are to be specified for the supports which should have been specified in the original decision, particularly where the participant has already been meeting the cost. However, for forward looking issues, such as management of funds, re-assessment dates and funding for support not yet paid for by the participant, it may be necessary to expressly stipulate that these supports are to be funded from the date of the decision and not earlier.”[13]
[13] Pavlakis at [38].
It follows that all supports which could have been considered by the delegate in the original decision, made on 28 February 2022, can be reconsidered in this review application, notwithstanding that the reviewable decision is now the decision made on 1 March 2023. The only issue that remains for determination by the Tribunal is whether sufficient funding to allow for the maintenance of the Applicant’s dog, Spike, as an assistance animal can be considered a reasonable and necessary support to be included in the Applicant’s SPS.
The Applicant seeks funding for Spike as a dog that has been trained to assist him with some of his needs and is recognised by a qualification that allows for the Applicant to be accompanied by Spike in public places. In New South Wales, where the Applicant resides, assistance animals are recognised under the Companion Animals Act 1998(NSW) so long as they meet the test identified in section 9(2) of the Disability Discrimination Act 1992 (Cth) (the DDA) which provides statutory protection from discrimination against those with a disability and extends those protections to those with a disability who are utilising assistance animals. Subsection 9(2) of the Act defines an assistance animal as follows:
(2)For the purposes of this Act, an assistance animal is a dog or other animal:
(a)accredited under a law of a State or Territory that provides for the accreditation of animals trained to assist a persons with a disability to alleviate the effect of the disability; or
(b)accredited by an animal training organisation prescribed by the regulations for the purposes of this paragraph; or
(c)trained:
(i)to assist a person with a disability to alleviate the effect of the disability; and
(ii)to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.
The Applicant has arranged for Spike to undertake a program of training with the MindDog organisation and to pass the PAT, which addresses hygiene and behaviour in public places.
The parties consented to this Application being determined on the papers, and without the need for an oral hearing. On 21 July 2023 the Respondent lodged with the Tribunal a joint tender bundle containing all relevant information provided by both parties in this case. In reaching its conclusion, the Tribunal has considered the documents provided by the Respondent under subsection 37(1) of the AAT Act together with the evidence set out in the bundle, which has been marked in the proceeding as exhibit one. On 30 August 2023 the Application was listed before me for consideration.
For the reasons which are set out below, the decision under review is set aside. The matter is remitted to the Respondent with a direction that the “statement of participant supports” in the plan dated 28 February 2022 is to include sufficient funding to meet the maintenance expenses for the Applicant’s assistance dog, in accordance with the NDIS Pricing Arrangements and Price Limits, from 28 February 2022.
As the re-assessment date in the decision under review has now passed, the Tribunal finds that a new reassessment date a year from now on 15 September 2024 is to be specified, and the other reasonable and necessary supports (save for those funded for one-off expenses) be replicated on a pro-rata basis until reassessment.
RELEVANT LEGISATION
The NDIS statutory framework
The objects and principles of the NDIS Act are set out in Part 2 of the NDIS Act. Subsection 3(1) of the NDIS Act relevantly includes:
(1) The objects of this Act are to:
…
(c)support the independence and social and economic participation of people with disability; and
(d)provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and
(e)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f)facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(g)promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the mainstream community;
…
Section 4 of the NDIS Act sets out the General Principles guiding actions under the NDIS Act and they relevantly include:
(1)People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
(2)People with disability should be supported to participate in and contribute to social and economic life.
(3)People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(4)People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5)People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
…
(8)People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives.
…
(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 mainstream community and in employment.
…
(15)In exercising their right to choice and control, people with disability require access to a diverse and sustainable market for disability supports in which innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of those supports is promoted.
(16)Positive personal and social development of people with disability … is to be promoted.
Section 17A of the NDIS Act contains principles relating to the participation of people with disabilities including:
(1)People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.
…
(3)The National Disability Insurance Scheme is to:
(a)respect the interests of people with disability in exercising choice and control about matters that affect them; and
(b)enable people with disability to make decisions that will affect their lives; and
(c)support people with disability to participate in, and contribute to, social and economic life.

The functions of the agency are set out in section 118 of the NDIS Act and include the following relevant functions:
(1)The Agency has the following functions:
(a)to deliver the National Disability Insurance Scheme so as to:
(i)support the independence, and social and economic participation, of people with disability; and
(ii)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(iii)ensure that the decisions and preferences of people with disability are respected and given appropriate priority; and
(iv)promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and inclusion in the mainstream community;
…
Reasonable and necessary supports in participant’s plans
Chapter Three of the NDIS Act deals with individual plans under which reasonable and necessary supports will be funded for participants in the scheme. Section 31 of the NDIS Act sets out the principles relating to the preparation, review and replacement of a participant’s plan. These principles are generally reflective of the General Principles set out in section 4 and expressly include, amongst other things, that these processes should:
(a) Be individualised; and
(b) Be directed by the participants; and
…
(j)Facilitate tailored and flexible responses to the individual goals and needs of the participant.
Section 33 of the NDIS Act deals with the contents of a participant’s plan. Subsection (1) sets out the requirements with respect to the participant’s statement of goals and aspirations, including that they are prepared by the participant. Subsection (2) applies to the statement of participant supports which must also be included in the plan, and which must be prepared with the participant and approved by the CEO. Subparagraph 33(2)(b) provides:
2A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
…
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
…
Subsection 33(5) of the NDIS Act states that the matters to which the CEO must have regard in deciding whether or not to approve the statement of participant supports are as follows:
(5)In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a)have regard to the participant’s statement of goals and aspirations; and
(b)have regard to relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)apply any methods and have regard to any criteria prescribed by the National Disability Insurance Scheme rules in relation to the manner in which the reasonable and necessary supports will be funded; and
(e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f)have regard to the operation and effectiveness of any previous plans of the participant.
Subsection 34(1) of the NDIS Act provides, with respect to reasonable and necessary supports, as follows:
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i)as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The term “support” is not given a meaning in the NDIS Act. A “support” is defined in section 9 of the NDIS Act as including “general supports”, being those defined in subsection 13(2) as the kind of supports provided by the Agency itself. However, the term “support” and the phrase “reasonable and necessary” are not further defined in the NDIS Act. In McGarrigle v National Disability Insurance Agency [2017] FCA 308 at 91 (McGarrigle), Mortimer J observed, with respect to those words:
[91] Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (“the Rules”) made pursuant to subsection 35(1) of the NDIS Act provides further guidance with respect to the assessment of reasonable and necessary supports that will be funded. Pursuant to section 209 of the NDIS Act, the Rules are a legislative instrument and are therefore binding to the Tribunal. In this case the relevant rules include:
Value for money
3.1In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a)whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(c)whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d)for supports that involve the provision of equipment or modifications:
(i)the comparative cost of purchasing or leasing the equipment or modifications; and
(ii)whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e)whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f)whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
…
Effective and beneficial and current good practice
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
3.3In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary, seek expert opinion.
General criteria for supports
5.1A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
The NDIS Operational Guidelines provide detailed policy to assist the NDIA in exercising its functions and powers in making decisions relating to the approval of specific types of supports in participant plans. Although this policy is not binding upon the Tribunal, it should be applied by the Tribunal unless it is inconsistent with the provisions of the NDIS Act: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. Part 14 of the Operational Guidelines deals expressly with assistance animals and is referred to in more detail below.
ISSUE AND DECISION UNDER REVIEW
The issue to be decided by the Tribunal is whether funding for the maintenance of Spike, as an assistance animal, is a reasonable and necessary support pursuant to section 34 of the NDIS Act.
The Respondent submitted that funding for Spike, as an assistance animal, was not reasonable and necessary and, in particular, would not provide value for money, having regard to section 34(1)(c) and Support Rule 3.1, and would not be effective and beneficial, having regard to section 34(1)(d) and Support Rule 3.2.
The Applicant submitted that the criteria of subsection 34(1) of the Act are satisfied with respect to the provision of funding for an assistance animal. The Applicant has relied on the evidence of his treating medical and allied health specialists to demonstrate that the support would assist him to pursue his goals, assist him in undertaking various activities and is likely to be beneficial to him.
EVIDENCE
The Applicant provided the following documentary evidence relevant to the funding sought for Spike
a)Updated Medical Questionnaire, prepared by Dr Jonathan Coldwell, dated 7 June 2022;
b)Letter from Renee Murphy, Occupational Therapist, dated 18 May 2022;
c)Public Access Test for a Psychiatric Service Dog performed by MindDog, dated 8 November 2021;
d)Letter regarding the qualifications and details of MindDog, from Gayl O'Grady, Manager of Training and Dog Support dated 28 July 2022;
e)Letter regarding the certification and suitability of the Applicant's animal, from Maylene Dacy and Cath Phillips of MindDog, date 28 July 2022;
f)Applicant's response to the Respondent's Statement of Issues, dated 25 July 2022;
g)Letter from Dr James Alexander, Registered Psychologist, dated 12 August 2022;
h)Supplementary letter from Dr James Alexander, Registered Psychologist, dated 1 September 2022;
i)Document compiled by the Applicant outlining interactions between the Applicant and the Agency in relation to Assistance Animal funding, during the period 28 January 2020 – 15 July 2022;
j)NDIS Assessment template – Assistance animal completed by the Applicant's occupational therapist, Renee Murphy, dated 24 October 2022;
k)Statement of Sean Penney, Disability Support Services, dated 9 March 2023;
l)MindDog credentials and handler licence, undated; and
m)Website link to ABC News, 'Calls for NDIS to fund trainings for assistance dogs', published on 8 December 2022
The Respondent summonsed documents from the organisation trading as MindDog but did not refer to those documents in submissions. The Tribunal notes that those documents set out the timetable and training diaries over the period from 28 June 2019 when the Applicant first applied to have Spike enter the MindDogs program,[14] through his first and second visits, on 7 November 2019 and 9 April 2020, through to his first successful PAT on 29 October 2020. The documents also evidence subsequent successful annual PAT accreditations on 8 November 2021 and 10 November 2022.
[14] HB p. 340.
The Applicant’s participant plan approved in February 2022, lists the following goals:
Short-term Goals:
During the plan period I will find stable accommodation suitable for my disability needs.
During this plan I want to maintain my ability to live independently
Medium or long-term goals:
I want to improve my overall health and wellbeing by improving my core strength and movement. This will reduce the among of falls and injuries I have on a regular basis.
I want to improve my community access so I have the opportunity to meet people in my local area.
The Applicant lives in rented accommodation. Although he has qualified for public housing, lack of availability means that he continues to rent a home in the private market. The Applicant has stated that he previously received funding through the NDIS to assist with the costs of maintaining Spike until his plan was re-issued in February 2022 but that he has not been granted this funding from that date. In his response to the Respondent’s statement of issues [15] the Applicant referred to the report of Renee Murphy, Occupational Therapist, dated 18 May 2022 and stated that he was seeking the monthly maximum level of funding provided for in the NDIS Pricing Arrangements and Price Limits, then being $238.45 per month.[16]
[15] HB B4, p. 199.
[16] Described by the Applicant as the allowance for maintenance of an assistance animal without the production of receipts. The Operational Guideline identifies a figure of $2,725 per annum, paid as part of the core supports.
The opinions of the Applicant’s treating specialist team were not challenged by the Respondent, either in submissions or through gathering of alternative opinions through additional assessments. It was not submitted by the Respondent that the witnesses exaggerated the Applicant’s needs or inaccurately described them. The whole of the medical evidence, when considered collectively, paints an overwhelmingly convincing picture that the Applicant’s physical and psycho-social needs, considered having regard to his participant’s goals, would be supported by an assistance animal. The conclusions expressed in the reports of the various medical witnesses are summarised in the following paragraphs.
In the letter from Renee Murphy, Occupational Therapist, dated 18 May 2022, Ms Murphy outlined the role Spike has undertaken in accompanying the Applicant “everywhere” including during community OT appointments and AT trials. Ms Murphy stated:
Ronald states that Spike ‘gives me a reason to get up in the morning’ and ‘without Spike, I would be really depressed’. Spike senses when Ronald is feeling mentally or physically unwell. He is protective of Ronald and will approach him and stay beside him when he senses that Ronald is unwell. Spike is required as a Ronald’s assistance dog so that Ronald can continue to participate in community and social activities as well as daily activities such as self-care tasks. Funding an assistance dog is ‘Value for money’ compared to the cost of increased formal supports that would be needed in place of Spike. Without his assistance dog, Ronald would require daily formal support to be motivated to shower, dress, eat, take his medications, and access the community.
Ms Murphy identified the following three tasks undertaken by Spike in rendering assistance to the Applicant:
a)    Reassure you in times of extreme anxiety such as helping you to leave your home when you’re too frightened to go out;
b)    blocking or being a barrier to other people if needed; and
c)    help you find your way around safely, including stopping at kerbs and stairs.
The respondent noted that Ms Murphy stated that the Applicant is:
…dependent on his support worker to assist him to travel to appointments and to go to the pharmacy and shops. On the days that (the Applicant) doesn’t have a support worker, he is isolated a home.
The Respondent submitted that this evidence was consistent with the conclusion that “animal assistance is unlikely to reduce the Applicant's dependence on support workers to assist with accessing the community and home tasks.”[17] However, the Tribunal notes that Mr Murphy’s evidence about the Applicant’s dependence on support workers was expressly identified by her as being to physical mobility issues, not his dependence on human carers for psycho-social support in order to leave his home. Now that the Applicant has (recently) been provided with funds for a mobility scooter, this aspect of his mobility has been addressed. Ms Murphy had also noted that the Applicant walks his dog every day, again suggesting that the Applicant was relying on support workers for access to the broader community through transport and access, rather than for support of a psycho-social nature to leave his home which, according to Ms Murphy, he is able to obtain with Spike.
[17] Respondents SFIC [40], HB A3, p. 189.
In October 2022, Ms Murphy undertook a further assessment and completed and NDIS pro forma entitled “Assessment Template – Assistance Animals”. It appears that this form had not been filled out when the Applicant initially sought review of the subsection 33(2) decision. It may be that the reason that this form, a further OT assessment, evidence from the Applicant’s treating specialists, from the MindDog organisation and from the Applicant’s broader support team were not provided by the Applicant to the NDIA earlier is because the NDIA had previously arrived at the decision that Spike should be recognised and funded as an assistance dog and had specified funding for his maintenance in the Applicant’s previous plan. It may have been reasonable for the Applicant and those assisting him to assume, at the time review was sought, that whatever previous evidence had assisted the NDIA to arrive at that conclusion would be used to arrive at the same conclusion in the Applicant’s new plan. The Respondent has not directly addressed, in its submissions, why the Applicant was previously funded and the basis upon which his costs are no longer reasonable and necessary, which is unfortunate. However, the Tribunal does not draw any adverse conclusion from the fact that the Assessment Template was not provided earlier by the Applicant.
Having provided the information above in her letter of May 2022, Ms Murphy provided the following further information in the October assessment about tasks which Spike performs as an assistance animal:
a)Response to assist Ronald with emotional regulation by jumping onto Ronald’s lap and nudging him until Ronald pats him.
b)Response to Ronald waking in pain. Spike jumps on the bed and nudges Ronald until he pats him. Ronald is distracted from his pain and is able to sometimes fall back asleep.
c)Spike nudges Ronald until he gets up in the morning. Otherwise, Ronald would stay in bed all day, not shower, eat or leave the house. Because of Spike, Ronald is able to get up and complete his self-care routine.
d)Spike has passed several PATS. He attends all community settings with Ronald, reducing Ronald’s anxiety around social and community participation and inviting conversation and social connection.

The Respondent submitted that the evidence as to tasks to be undertaken by Spike was “inconsistent”, and the Tribunals notes that the tasks to be performed in the May letter differ from those in the October Assessment. The October assessment sets out a number of additional background facts leading to the identification of the four tasks listed above, which were relevant in October 2022. The better interpretation of Ms Murphy’s evidence is that these four tasks are different from, and in addition to, the tasks identified by Ms Murphy in May 2022. In addition, Ms Murphy set out the basis for the emotional support provided by Spike to motivate the Applicant to get up each day and opines that Spike’s presence reduces the need for human carers to provide this support for the Applicant and reduces the Applicant’s reliance upon regular psychology supports through on-hand emotional regulation support.
In a letter dated 28 July 2022, Gayl O’Grady, Manager of Training and Dog Support at MindDog, set out an explanation of the MindDog program generally, as an organisation that trains psychiatric assistance dogs and their handlers. The Applicant and his dog Spike are enrolled in that program, and Ms Catherine Philips, executive chair of MindDog, stated in a further letter:[18]
“…mindDog oversees the training of, and certifies, Australian psychiatric assistance dogs. The Commonwealth Disability Discrimination Act 1992 (The Act) guarantees the rights of all assistance dogs and their handlers.”
[18] See letter from Ms Philips, Executive Chair of MindDog, dated 28 July 2022, HB B6, p. 202.
On 12 August 2022, Dr James Alexander, Consultant Psychologist, provided a letter addressed to the NDIA expressing his concern with the withdrawal of funding for the costs of caring for Spike. Dr Alexander noted that Spike was a certified and approved Assistance Dog and is required to undergo an annual Public Access test to continue to be certified for this purpose. In a further letter, dated 1 September 2022, Dr Alexander identified the following functions undertaken by the assistance dog to support the Applicant:
a)Reassures him in times of extreme anxiety, such as helping him to leave his home when he is too frightened to go out;
b)blocking or being a barrier to other people if needed; and
c)helps him find his way around safely, including stopping at kerbs and stairs.
Mr Sean Penney, a support worker and carer for the Applicant, provided a written statement dated 9 March 2023. Mr Penney stated that the Applicant and Spike were “inseparable” and provided insight into the Applicant’s psychiatric disorder which causes him anxiety and negative “self-talk”. He stated, from his observations, that Spike appears to mitigate those negative feelings by providing companionship by which the Applicant can anchor his thoughts. He also reported that the Applicant walks Spike every day, providing him with routine, purpose and a sense of responsibility. Mr Penney observed that the social interactions the Applicant has involving the dog, and other dog owners, have given the Applicant greater confidence in public and made him feel part of the community.
A letter from Dr Ash Collins, General Practitioner, dated 11 June 2019,[19] certified that the Applicant suffers from chronic anxiety and relies heavily on the support of his dog to enable him to participate in the community and for self-management. He stated that the Applicant relies physically and emotionally on the dog.
CONSIDERATION
[19] Included in the summonsed material from MindDog, HB p. 344.
Findings of fact
The Tribunal has considered the substantial medical and other evidence before the Tribunal that is summarised above and in addition to the discussion below as to each aspect of section 34 of the NDIS Act, makes the following findings about the threshold issue whether Spike can be considered an assistance animal for the purpose of funding his maintenance:
(a)The Applicant has psychosocial impairments arising from bipolar disorder and chronic anxiety and physical impairments arising from his visual impairment, rheumatoid arthritis and chronic obstructive pulmonary disease.
(b)As a result of these limitations, the Applicant is challenged in his emotional self-regulation, both when at home and in the community. He also lacks confidence and self-motivation. The Tribunal is satisfied the Applicant would benefit from the support of an assistance animal as a result of these psycho-social limitations;
(c)The Applicant’s physical impairment adds to the complexity of his disability. The Tribunal is satisfied that the Applicant would benefit from an assistance dog accompanying him in the community, particularly to stop at stairs and kerbs, and to support his routine and self-regulation at home.
(d)The Applicant’s dog, Spike, has undergone a year-long training program with MindDog. The information from MindDog demonstrates that Spike has received training, between June 2019 and October 2020, to assist the Applicant with support for his psycho-social needs and his passing of the PAT indicates he is trained for assistance in public places. Therefore, the definition of an “assistance animal” in the DDA, and particularly that set out in section 9(2)(c), has been met.
(e)The Applicant has benefitted from his assistance dog for many years, and the cost of maintaining this dog has been funded under the NDIS in a previous plan. Spike provides support of the Applicant’s choice and is tailored to the Applicant’s needs, as supported by the recommendations of his team of medical and allied health professionals.
(f)The Applicant seeks further independence and community participation. The Tribunal is satisfied that the Applicant requires the support of his assistance dog in furthering the aspects of his goals relating to independence, community participation and minimising risk of injury.
Subsection 34(1)(a): Will the support assist the Applicant to pursue the goals, objectives and aspirations included in her statement of goals and aspirations?
The Applicant’s goals include maintaining his independence and improving access in the community. The evidence demonstrates that his assistance dog’s tasks include limiting the Applicant’s fall risk whilst in the community by altering him to the presence of steps or kerbs. The dog also acts as a barrier for the Applicant when this is needed in the community. The dog’s task of assisting with the Applicant’s confidence and self-regulation will also support this goal.
The Tribunal accepts the conclusions drawn by the various medical and allied health professionals as set out above, which are consistent with these conclusions. Accordingly, the Tribunal finds that the requirements of subparagraph 34(1)(a) of the NDIS Act are met.
Subsection 34(1)(b): Will the support assist the Applicant to undertake activities, so as to facilitate her social and economic participation?
The Tribunal considers that the Applicant’s social and economic participation includes his community contact, walks with Spike and day-to-day activities. The combination of physical and psycho-social needs identified above can be supported by the tasks Spike can undertake for the Applicant. The Applicant engages in negative self-talk, and frequent prompting from Spike assists in re-focussing and supporting the Applicant’s confidence. His morning routine is assisted by the presence of Spike.
For these reasons, the Tribunal considers that the requirements of subparagraph 34(1)(b) of the NDIS Act are met.
Subsection 34(1)(c): does the support represent value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support?
Support Rule 3.1 provides additional “value for money” considerations in determining whether the support meets section 34(1)(c).
There is no evidence before the Tribunal of comparable supports which would achieve the same outcome for the Applicant at a substantially lower cost. The Applicant is not seeking the costs of training the animal and seeks only assistance from the scheme with the maintenance of an existing animal which he has purchased, registered and trained. There is no evidence of any alternative support that could provide the same outcomes of motivating and regulating the Applicant to assist with his chronic anxiety and bipolar disorder. The Tribunal is satisfied that an assistance animal will be of long-term benefit to the Applicant and it will likely reduce the need for carers, including in the morning to ensure he is out of bed and in a routine. In the community, there is no suggestion that human carers presently support the emotional regulation of the Applicant to provide the same outcome that he achieves with Spike, and even if that could be achieved, that could certainly not be achieved for less than $300 per month.
Weighing all of the evidence, the Tribunal finds that the support represents value for money in that the costs are reasonable, relative to both the benefits achieved and the cost of alternative support.
Subparagraph 34(1)(d): will the support be, or likely to be, effective and beneficial having regard to current good practice?
Support Rule 3.2 provides additional considerations in determining whether the support is effective and beneficial under section 34(1)(d). The consensus of expert opinion in this case supports, overwhelmingly, the importance to the Applicant of his assistance animal in supporting his disability related needs. The Applicant’s lived experience, amplified by the evidence of his support worker, Mr Penney, is consistent with the Applicant being an ideal candidate to care for, and be supported by, the assistance animal.
Having regard to the relevant evidence, the Tribunal finds that the support is likely to be effective and beneficial for the Applicant, having regard to current good practice.
Subsection 34(1)(e) and (f):
Neither party submitted that the support was not reasonable, taking account of what families, carers and networks might reasonably provide or that the support was more appropriately to be funded or provided by other than the NDIS. The Tribunal is satisfied that the support meets both subparagraphs of section 34(1).
Subsection 34(2): the Rules
In addition to Support Rules 3.1 and 3.2 discussed above, Rule 5 of the Support Rules includes general criteria for supports and specifies which supports will not be funded or provided. Relevantly, Support Rules 5.1 provides as follows:
General criteria for supports
5.1A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
Mortimer J in McGarrigle, with respect to the Rules, states as follows:[20]
[43] The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) to (7) constrain the rule-making power to preserve the federal characteristics of the NDIS The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Rules) are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.
[20] McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [43].
The primary issue advanced by the Respondent in relation to the Rules appears to be that Spike is the Applicant’s pet dog. If so, it may logically follow that the cost of his maintenance is a household or day-to-day cost that will not be funded under the scheme. The Tribunal accepts that Spike was a pet first and has become a trained assistance animal later in his life. It will not be the case that every animal who is the pet of a participant under the scheme, and who later receives training, will meet the statutory criteria for funding under the scheme. However, in this case, and having regard to the evidence about the Applicant’s specific needs and the animal’s capacity to support him, the Tribunal finds that Spike’s costs are not part of the Applicant’s day-to-day needs.
The Respondent submitted that the Applicant was already supported by a psychologist who could provide him with strategies to cope with his anxiety and negative self-talk. This submission seems to ignore the fact that one strategy already in place is the use of Spike as an assistance animal, and that this was seen as reasonable and necessary by the Applicant’s General Practitioner, Psychologist and Occupational Therapist. There is no evidence before the Tribunal that supports the Respondent’s submission of duplication of the kind contemplated in Rule 5.1.
The Tribunal is satisfied that funding for the maintenance of an assistance dog is not inconsistent with the Rules.
Operational Guidelines
The Tribunal is to consider firstly the provisions of the NDIS Act and the Rules, then, if not inconsistent, will consider the Operational Guidelines. As part of the current Operational Guidelines, The Respondent has chosen to adopt conclusions arrived at in a report, dated 30 September 2016, prepared by the School of Psychology and Public Health at La Trobe University. In that report, an assistance animal is defined as an “animal that is trained to perform at least three tasks or behaviours which mitigate the effects of a person’s disability.”
The NDIS Act and Support Rules set out extensive requirements that must be met before a support can be funded. However, the adoption of a limitation on a support that is otherwise reasonable and necessary in every sense of the legislative requirements, because the support does not meet an additional criteria which the NDIA seeks to impose, must only be undertaken with caution. The legislative intent is that, once a support meets the statutory criteria, including the support rules, it is a support that can be funded under the scheme. There are further practical issues with the imposition of the requirement that the assistance animal perform three tasks. If the assistance animal performed only one task, but in doing so represented a support that was reasonable and necessary, rejection on the basis that the assistance animal did not perform three tasks would be inconsistent with the NDIS Act and Support Rules. For example, an assistance dog for a vision-impaired participant may only perform the task of physical guidance. This one task may be an essential support. Further, the mechanism for evaluating the separation of tasks is unclear. For example, if an assistance animal performs such physical guidance in three different settings (home, public transport and whilst walking in public) is this three tasks, or one task performed three different ways? Section 34 is inclusive in its approach to supports that are reasonable and necessary. Further, the Act requires a flexible, tailored and appropriate response to each participant’s needs. Therefore, it is difficult to reconcile the binding provisions of the NDIS Act with this imperfect and problematic aspect of the Operational Guidelines. For these reasons the Tribunal considers that it is not proper to have regard to the aspects of the Operational Guidelines that seek to limit the mechanism for an assistance animal only on the basis that it does not perform three tasks if the statutory requirements are otherwise met. For completeness, the Tribunal notes that Spike performs multiple tasks for the Applicant that assists to support him in relation to his disability and would meet this aspect of the guidelines in any event.
The Respondent submitted that there was insufficient evidence to demonstrate compliance with the part of the Operational Guidelines providing that an animal can only be funded if it has been trained by an “accredited assistance animal provider”. The Guideline offers no assistance on the nature of the required accreditation, noting only that the provider may be registered with the NDIS Quality and Safeguards Commission.
There is no information in the material about whether MindDog is an “accredited assistance animal provider”. There is no information to suggest that MindDog provides animals at all. The only information available to the Tribunal suggests that MindDog is a training organisation. MindDog asserts that it provides training so that an animal can meet the relevant Commonwealth statutory requirement for assistance animals and the information provided to the Tribunal is consistent with that assertion. If MindDog was operating outside an applicable “accreditation” standard, the Tribunal would have expected that the Respondent demonstrate this through evidence. There is no evidence available to the Tribunal to counter the assertion in the material that MindDog trains assistance animals in the manner provided for in the DDA. The Tribunal notes that this aspect of the Operational Guideline seeks to impose the requirement of “accreditation” where that is not required in order for an animal to be recognised under the DDA.[21] Section 9(2) of the DDA provides three pathways, two of which require training with an “accredited” trainer and the other requires “training” (without specificity as to the accreditation of the trainer). In those circumstances, the Operational Guideline goes further than relevant commonwealth legislation to impose a on a training organisation a standard of accreditation that is intended to apply to the providers, rather than simply the trainers, of assistance animals. The Tribunal finds that this aspect of the guidelines goes beyond what is necessary to determine if the support is reasonable and necessary and is inconsistent with the statutory requirement that reasonable and necessary supports be funded. For these reasons the Tribunal considers that it is not proper to have regard to the aspects of the Operational Guidelines that seek to impose a further limitation upon funding for an assistance animal if the trainer of that animal is not “accredited”, where the statutory requirements are otherwise met.
[21] Nor is it required in the Companion Animals Act 1998 (NSW), which adopts the definition of assistance animal from s.9 of the DDA.
Other matters
For completeness, subparagraph 3(3)(b) of the NDIS Act requires regard to be had to the need to ensure the financial sustainability of the National Disability Insurance Scheme. In addition, subsection 4(17) sets out:
17It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to the need to ensure the financial sustainability of the National Disability Insurance Scheme.
There was no evidence before the Tribunal and no submissions made regarding the financial sustainability of the National Disability Insurance Scheme and no basis to conclude that, in the particular circumstances of this case, funding the maintenance costs for Spike, of less than $3,000 per year, is likely to have an adverse impact on the sustainability of the NDIS.
CONCLUSION
For the reasons set out above, the Tribunal is satisfied that funding to enable the maintenance costs of Spike, as an assistance animal for the Applicant, meets the requirements of a reasonable and necessary support as defined in the NDIS Act.
DECISION

The decision under review is set aside. The matter is remitted to the Respondent with a direction that:
a)the “statement of participant supports” in the plan dated 28 February 2022 is to include sufficient funding to meet the maintenance expenses for the Applicant’s assistance dog, with effect from 28 February 2022;
b)all other supports (except those funded on a one-off basis) be replicated on a pro-rata basis until the reassessment date; and
c)the reassessment date is 15 September 2024.
I certify that the preceding 70 paragraphs are a true copy of the reasons for decision of Senior Member K Buxton.
.............................[SGD]..................................
Associate
Dated: 15 September 2023
Date listed for determination:             30 August 2023, On the papers
Applicant:  Mr Ronald James
Solicitor for the Respondent:             Ashurst