JJGZ and National Disability Insurance Agency

[2021] AATA 2702

JJGZ and National Disability Insurance Agency [2021] AATA 2702 (5 August 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2020/3307

Re:JJGZ  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:5 August 2021

Place:Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – where applicant diagnosed with Zlotogora-Ogur Syndrome – natural therapies – naturopathy – natural supplements – whether requested supports are reasonable and necessary pursuant to subsection 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) – whether supports represent value for money – whether supports relate to disability – no disadvantage principle – decision under review affirmed.

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 31, 33, 34, 103, 209

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

CASES

McGarrigle v National Disability Insurance Agency [2017] FCA 308

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12)

REASONS FOR DECISION

Dr L Bygrave, Member

5 August 2021

INTRODUCTION

1. The applicant is 37 years old. Since 3 August 2016, the applicant has been a participant in the National Disability Insurance Scheme (the NDIS) based on his disability of Zlotogora-Ogur Syndrome.

2. The matter under review relates to the applicant’s NDIS plan for the period from 15 November 2019 to 14 November 2020, which did not include his requested funding for ‘natural therapies’ and ‘vitamin and mineral supplements’.[1]

   [1] Exhibit T-T4, page 39.

3. The applicant sought review and, on 13 May 2020, the respondent determined that ‘funding for natural therapies and supplements’ and ‘funding for private health insurance’ for the applicant were not reasonable and necessary supports.[2]

   [2] Exhibit T-T2, page 26.

4. On 31 May 2020, the applicant applied for review to the NDIS Division of the Administrative Appeals Tribunal (the Tribunal). I am satisfied that, pursuant to section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act), the Tribunal has jurisdiction to review the decision made by the respondent on 13 May 2020.

5. The matter was heard by the Tribunal in Sydney on 14 July 2021 by videoconference. While the applicant declined to attend or provide evidence at the hearing, he was represented by Mr Stephin Hargreave, an independent advocate. The applicant’s mother also gave oral evidence at the hearing. The respondent was represented by Ms Sian McGee, counsel.

   RELEVANT LEGISLATION

   The NDIS statutory framework

6. The objects and principles in the Act provide guidance on the interpretation of the statute. Section 3 sets out the objects of the Act, which relevantly include:

   ·giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12);

   ·supporting the independence and social and economic participation of people with disability;

   ·enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and

   ·facilitating the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability.

7. Paragraph 3(3)(b) of the Act also notes that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.

8. Section 4 outlines general principles guiding actions under the Act, which include affirming that 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. Subsection 4(11) of the Act further provides that:

   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 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.

9. Pursuant to subsection 209(1) of the Act, the Minister may make rules prescribing matters under the Act. Relevant to this matter, the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Support Rules) form part of the legislation.

10. Operational Guidelines have also been drafted by the Chief Executive Officer (the CEO) of the National Disability Insurance Agency (the NDIA): the relevant Operational Guideline for this matter is the Planning Operational Guideline (the Planning Guideline). I note that Operational Guidelines represent government policy and should be applied unless there is good reason not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.

    Reasonable and necessary supports

11. Chapter 3 of the Act outlines provisions for participants and their plans. Section 31 lists principles relating to participants’ plans: these include that the preparation, review and replacement of a participant’s plan should, so far as reasonably practicable, be individualised and underpinned by the right of the participant to exercise control over their own life and maximise the choice and independence of the participant. Plans should also facilitate tailored and flexible responses to the individual goals and needs of the participant.

12. Matters that must be included in a participant’s plans are set out in section 33 of the Act. Pursuant to paragraph 33(2)(b) of the Act, plans must include a statement that specifies the reasonable and necessary supports that will be funded under the NDIS.

13. Subsection 34(1) of the Act sets out the criteria for the funding of reasonable and necessary supports as follows:

    Reasonable and necessary supports

    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.

    [emphasis added]

14. Subsection 34(2) of the Act provides that the NDIS rules ‘may prescribe methods or criteria to be applied’, or matters to which the CEO (and therefore the Tribunal) is to have regard, in deciding whether or not he or she is satisfied of the matters mentioned in subsection (1).

15. The Support Rules that commenced on 1 July 2013 are made for the purpose of sections 33 and 34 of the Act, and are about the assessment and determination of the reasonable and necessary supports that will be funded for participants under the NDIS. Relevantly:

    ·Rule 3.1 states that the following matters (amongst others) are to be considered in deciding whether the support represents ‘value for money’ in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support:

    (a)whether there are comparable supports which could 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; … [emphasis added]

    ·Rule 3.2 stipulates that, in deciding whether the support is likely to be ‘effective and beneficial’ for a participant, the available evidence of the effectiveness of the support for others in like circumstances is to be considered. This evidence may include published and refereed literature, and any consensus of expert opinion; and/or the lived experience of the participant or their carers; and/or anything the NDIA has learnt through delivery of the NDIS.  

    ·Rule 5.1 sets out the ‘general criteria for supports’ and stipulates that a support will not be provided or funded under the NDIS if:

    (a)it is likely to cause harm to the participant or pose a risk to others; or

    (b)it is not related to the participant’s disability; or

    (c)it duplicates other supports delivered under alternative funding through the NDIS; or

    (d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs. [emphasis added]

    ·Rule 7.5 outlines the ‘health’ supports that the ‘NDIS will not be responsible for’:

    (a)the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions; or

    (b)other activities that aim to improve the health status of Australians, including general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post-acute services), preventative health, …; or … [emphasis added]

    EVIDENCE

16. The applicant and the respondent confirmed at the hearing that the sole supports in dispute to be determined by the Tribunal are funding for the natural therapies listed below:

    ·naturopathy (monthly appointments): 12 hours per year at $120.00 – $150.00 per hour = $1,440.00 – $1,800 per year; and

    ·natural supplements: Bio-enhanced Curcurmin, Olive Leaf Extract High-Strength, Selenium Max – Magnesium – Zinc Complete, Cranberry Capsules and Saw Palmetto, Stress Ease, Bilberry Capsules, Vitamins B Complex – C – D3 – E, Liver Tonic – Cabot Health Livertone Plus, L Glutamine, Cod Liver Oil, Sleep Easy, Kidney Tonic, Liverdoctor N-Acetyl-L-Cysteine, CoQ 10, Oregano Oil and Black Seed Oil, Digestive Enzymes, and Probiotics. Cost of these identified natural supplements is ‘[a]pproximately $8,000.00 per year’.[3]

    [3] Applicant’s Statement of Facts, Issues and Contentions dated 25 May 2021, paragraph 10.

17. In view of these confined issues, the evidence focuses primarily on the applicant’s disability of Zlotogora-Ogur Syndrome, and supports of naturopathy and natural supplements. I have also set out the oral evidence of the applicant’s mother due to the limited medical evidence.

    Medical evidence – the applicant’s disability of Zlotogora-Ogur Syndrome

18. In a medical letter dated 26 July 1993 addressed to the applicant’s parents, Dr ‘A’ and Associate Professor ‘B’ (Department of Medical Genetics, The Prince of Wales Children’s Hospital) stated that it was ‘very likely’ the applicant had Zlotogora-Ogur Syndrome in view of his features of ‘sparse hair, extra nipple and syndactyly of his fingers’ and noted he does not have a ‘cleft lip and palate’.[4] Dr ‘A’ and Associate Professor ‘B’, in a separate letter also dated 26 July 1993 addressed to a dental specialist, described the applicant as having ‘a mental retardation syndrome associated with sparse hair, abnormal teeth and hands syndactyly’ that ‘fits the clinical description’ of Zlotogora-Ogur Syndrome.[5]

    [4] Exhibit ST-ST6, page 175.

    [5] Exhibit ST-ST6, page 176.

19. Dr ‘C’, a clinical geneticist, provided a medical report dated 25 July 2016 that noted the applicant has a ‘rare disorder’ known as Zlotogora-Ogur Syndrome, which accounts for his ‘sparse hair, small widely spaced teeth, syndactyly and learning difficulties’.[6] Dr ‘C’ observed the applicant ‘has lifelong complex medical needs to manage this condition’ and listed individuals and services that ‘are currently or have been involved in his care’.[7] This list included a specialist gastroenterologist, Dr ‘D’ (a ‘medical doctor’ and ‘nutritionist’), a general practitioner, a skin specialist, Mr ‘E’ (a ‘holistic health practitioner’), a urologist, a podiatrist, a specialist for his ‘dry eye syndrome’ and Ms ‘F’ (a clinical psychologist).[8]

    [6] Exhibit ST-ST3, page 151.

    [7] Exhibit ST-ST3, page 152.

    [8] Exhibit ST-ST3, page 152.

20. In this report, Dr ‘C’ also described the general features of Zlotogora-Ogur Syndrome as:

    … a congenital disorder characterized by sparse and twisted hair (pili torti) and absent or sparse eyebrows, hypohidrosis (reduced sweating), dry skin, palmoplantar keratoderma (thickened skin), abnormal teeth (delayed eruption, microdontia/ hypodontia, and anodontia (missing teeth), facial dysmophism (protruding and malformed ears, small jaw, bilateral cleft lip and palate), cutaneous syndactyly (fingers and toes) and transverse crease on the palms. Abnormal nails or onychodystrophy may be present. Additional features including intellectual disability, deafness, hypoplastic lacrimal puncta, nipple anomalies, genitourinary abnormalities…, and lumbar lordosis may be observed.[9]

    [9] Exhibit ST-ST3, pages 151-152.

21. This clinical description by Dr ‘C’ is identical to information from ‘orphanet’, a ‘reference portal for information on rare diseases’ that also lists the symptoms people with Zlotogora-Ogur Syndrome may have.[10]

    [10] Exhibit ST-ST9, pages 203-210.

22. The applicant’s advocate also filed three articles from research journals that refer to the genetic structure of Zlotogora-Ogur Syndrome and clinical features;[11] this material is consistent with the information provided in the medical report by Dr ‘C’.

    [11] Exhibit ST-ST8.

    Medical evidence – the applicant’s natural therapies

23. Mr ‘E’ is a ‘naturopath, homoeopath, nutritionist, herbalist, remedial therapist, masseur’.[12] In a report dated 18 March 2016, Mr ‘E’ wrote that he was treating the applicant for ‘his liver, IBS [irritable bowel syndrome], sleeping problems, OCD [obsessive compulsive disorder] & nutritional advice’. Mr ‘E’ stated that the applicant needed ‘the remedies & supplements to support this treatment’ and noted there had been ‘a lot of improvement in his health’.[13]

    [12] Exhibit ST-ST1, page 147.

    [13] Exhibit ST-ST1, page 147.

24. Dr ‘D’ is a general practitioner who provided reports about the applicant on 1 August 2016 and 17 September 2020. In her report dated 1 August 2016, Dr ‘D’ stated the applicant suffers from Zlotogora-Ogur Syndrome that ‘causes him to suffer with physical, mental and intellectual disabilities’ and noted:

    [The applicant] needs my ongoing assistance for his large variety of health problems. He requires nutritional supplements regularly that are crucial for his well-being.[14]

    [14] Exhibit ST-ST2, page 149.

25. In a report dated 17 September 2020, Dr ‘D’ further stated:

    [The applicant] has been left without any support since 2016 by his transition to NDIS…from ADHC (Ageing Disability & Home Care), as the NDIS does not approve natural therapies and vitamin supplements. These are vital for [the applicant] as his mucas membrane have not developed normally because of his genetic problem. This causes digestive problems making him intolerant to many prescribed drugs.

    As a pensioner he is not able to afford vitamin supplements and natural therapies resulting in a large decline in his health.[15]

    [15] Exhibit ST-ST7, page 179.

26. Ms ‘F’, a clinical psychologist, provided written reports dated 10 August 2016 and 30 March 2017. In both reports, Ms ‘F’ stated the applicant has ‘a mild intellectual disability which affects verbal comprehension and verbal communication’, and experiences ‘anger at times’, symptoms of ‘severe anxiety and stress’, and ‘symptoms of OCD’.[16]

    [16] Exhibit ST-ST6, page 170.

27. In her report dated 30 March 2017, Ms ‘F’ stated that she had worked with the applicant for 11 sessions from 3 July 2016. Ms ‘F’ described the applicant’s diagnosis of Zlotogora-Ogur Syndrome, noting ‘this illness is accompanied by a number of physical health difficulties, cognitive difficulties as well as predisposition to develop anxiety and other mental health problems’.[17] She stated that the applicant and his mother reported ‘significant improvement’ from therapy with the applicant feeling an ‘increased ability to better manage his symptoms of anxiety, stress, panic OCD… and feelings such as anger and frustration’.[18] Ms ‘F’ opined that the applicant ‘requires further psychological support to better manage his symptoms and increase life-skills and independence’.[19] After outlining the applicant’s progress with psychological therapy, Ms ‘F’ wrote a paragraph in her report stating the applicant ‘needs his therapies to maintain his quality of life’, noting:

    From what I understand, [the applicant] needs his supplements for healthy functioning as well as his other therapies to maintain a healthy standard of living.[20]

    [17] Exhibit ST-ST6, page 172.

    [18] Exhibit ST-ST6, page 172.

    [19] Exhibit ST-ST6, page 172.

    [20] Exhibit ST-ST6, page 173.

28. Dr ‘G’, a clinical psychologist, provided a report dated 7 June 2018 stating that the applicant has a diagnosis of Zlotogora-Ogur Syndrome, ‘which not only results in a number of physical and cognitive difficulties, but also a predisposition for developing significant anxiety and other mental health conditions’.[21] Dr ‘G’ noted that the applicant and his mother ‘experience significant distress with regard to funding for natural therapies, nutrition, natural supplements, necessary equipment and health insurance funding, which has been cut in the transition between ADHC to NDIS’.[22]

    [21] Exhibit ST-ST6, page 174.

    [22] Exhibit ST-ST6, page 174.

    The oral evidence of the applicant’s mother

29. At the hearing, the applicant’s mother provided oral evidence about the history of her son seeking treatment from a naturopath and a nutritionist and taking natural supplements. She explained her knowledge about the applicant’s diagnosis of Zlotogora-Ogur Syndrome and his experiences with natural therapies within the context that she has always lived with the applicant and she attends all his medical appointments with him.

30. The applicant’s mother contended variously that he had taken natural supplements for ‘most of his life’ and had commenced taking natural supplements after he was diagnosed with IBS. She thought that the applicant had started taking natural supplements about ten years ago, when he had seen a naturopath prior to seeking treatment from Mr ‘E’ and Dr ‘D’. The applicant’s mother said natural supplements were ‘vital’ for the applicant’s ‘survival’.

31. The applicant’s mother was referred to the following list of the applicant’s supplements that she provided to the applicant’s advocate and the NDIA:

    -    Bio-enhanced Curcurmin – for his liver and joint problems

    -    Olive Leaf Extract high-strength – for his poor immunity

    -    Selenium Max – Magnesium – Zinc complete – for his liver and immunity

    -    Cranberry Capsules and Saw Palmetto – for his bladder problem

    -    Stress Ease – for his chronic anxiety

    -    Bilberry Capsules – for his eye problems

    -    Vitamins B complex – C – D3 – E – for supporting his overall health

    -    Liver Tonic – Cabot Health Livertone Plus – for his liver problem

    -    L Gluetamine for his digestive problems - Irritable Bowel Syndrome

    -    Cod Liver Oil – for his dry eye syndrome, dry skin and stiff joints

    -    Sleep Easy – for his sleep disorder and restless legs

    -    Kidney Tonic – for his kidney and bladder problems

    -    Liverdoctor N-Acetyl-L-Cysteine – for supporting his liver

    -    CoQ 10 – for supporting his heart

    -    Oregano Oil and Black Seed Oil – for his toenail fungal infection

    -    Digestive Enzymes – for supporting his digestion

    -    Probiotics – for his digestive problems[23]

    [23] Exhibit ST-ST4, pages 155-156.

1. She said these natural supplements were recommended by Dr ‘D’ in 2016, who made some changes to the natural supplements the applicant had previously been taking. She estimated the annual cost of these supplements was approximately $8,000. From this list of natural supplements, the applicant’s mother said that he was currently taking: Olive Leaf Extract High-Strength, Cranberry Capsules and Saw Palmetto, Liver Tonic – Cabot Health Livertone Plus, Cod Liver Oil, Sleep Easy, Liverdoctor N-Acetyl-L-Cysteine (occasionally), Oregano Oil and Black Seed Oil (sometimes), and Probiotics.

2. The applicant’s mother confirmed that the applicant had not seen Mr ‘E’, Dr ‘D’ or any other naturopath or nutritionist since 2017. She said that the applicant’s general practitioner and other specialists declined to provide written reports or give evidence for the purpose of the Tribunal hearing. She explained that the applicant’s treating medical practitioners were ‘not knowledgeable’ about natural therapies and supplements and she was ‘not satisfied’ with their responses when she discussed this with them.  She accepted that the applicant’s NDIS plan had included funding for a dietician since November 2019 and that the respondent had advised this funding could be used ‘flexibly’ for a nutritionist; however, the applicant has not yet utilised this funding to see either a dietician or a nutritionist.[24]

   [24] Applicant’s Statement of Facts, Issues and Contentions dated 25 May 2021, Attachment 1/1.

3. The applicant’s mother said she wanted to take her son to a naturopath so he can get ‘remedies’ and the estimated hourly cost she provided was based on the amount she paid when he last visited a naturopath in 2017.

4. At the hearing, the applicant’s mother provided contrasting oral evidence about the current health and wellbeing of the applicant. She initially said that he was ‘not functioning at all’, had ‘weakened immunity’ and was ‘very lethargic’. She later said that, since the applicant stopped taking natural supplements, he does not have the energy to do the activities that he used to. However, she accepted that the applicant completed an advanced diploma in accounting in 2019 and only stopped taking piano lessons because his NDIS funding was redirected to purchasing natural supplements. The applicant’s mother also indicated that her son’s capacity to leave his home and undertake activities had been restricted by concerns regarding his compromised immunity and the COVID-19 pandemic.

   FINDINGS OF FACT

5. Based on the medical evidence before the Tribunal, I make the following findings of fact:

   ·The applicant was diagnosed with Zlotogora-Ogur Syndrome, a rare congenital disorder, in 1993. His symptoms/conditions due to Zlotogora-Ogur Syndrome are sparse hair, small widely spaced teeth, hands syndactyly, extra nipple and learning difficulties.

   ·In 2016, a report by a clinical geneticist stated the applicant was receiving treatment from a specialist gastroenterologist, general practitioner/nutritionist, general practitioner, skin specialist, holistic health practitioner, urologist, podiatrist, specialist for ‘dry eye syndrome’ and clinical psychologist.

   ·Reports written in 2016 by Mr ‘E’ and Dr ‘D’ provide only brief and general statements that the applicant requires ‘natural supplements’ for his ‘health problems’. I place limited weight on these reports because they:

   owere written more than five years ago;

   oprovide minimal information about the applicant’s symptoms related to his disability of Zlotogora-Ogur Syndrome; and

   odo not name any ‘natural supplement’ or ‘remedy’ or explain how these assist to support the applicant.

   ·Reports written by Ms ‘F’ in 2017 and Dr ‘G’ in 2018 have limited relevance to this matter because, as clinical psychologists, they have no professional expertise regarding whether the applicant’s symptoms/conditions due to his disability of Zlotogora-Ogur Syndrome are assisted by supports of naturopathy and/or natural supplements.

   ·There is no medical evidence before the Tribunal about either the applicant’s current health and wellbeing or any treatment he receives in relation to his disability of Zlotogora-Ogur Syndrome. In particular:

   oThere is no evidence from an appropriately qualified medical practitioner (such as a clinical geneticist, immunologist, or qualified kidney, liver, joint/bone, heart or bowel specialist) that establishes a relationship between the applicant’s conditions/symptoms associated with his disability of Zlotogora-Ogur Syndrome and the symptoms/health conditions for which the applicant takes natural supplements and seeks naturopathy.

   oI place minimal weight on the most recent medical report by Dr ‘D’ dated 17 September 2020 because Dr ‘D’ has neither seen nor treated the applicant since 2016, a period that is more than five years ago.

   ·There is no evidence the list of natural supplements provided by the applicant’s mother set out at paragraph 31 is verified by a naturopath or any other relevant medical practitioner.

   ·There is no evidence (such as quotes) verifying either the cost per hour for a naturopath or the cost of the natural supplements set out in paragraph 31.

   ·The applicant has not utilised NDIS funding provided to visit either a dietician or a nutritionist.

6. Finally, I place limited weight on the oral evidence that was provided by applicant’s mother at the hearing. The credibility of her evidence was undermined by inconsistent facts, emotive language, and an inability to provide clear timeframes for the applicant’s diagnosis of conditions and treatment of natural therapies including seeing a naturopath and taking natural supplements. I also note her oral evidence was not supported by any reports or expert evidence by the applicant’s medical practitioners. Indeed, both the applicant’s mother and his advocate informed the Tribunal that none of the applicant’s treating medical practitioners agreed to give evidence at the hearing.

   CONSIDERATION

7. I now consider the provisions of subsection 34(1) of the Act to decide whether naturopathy appointments and natural supplements are ‘reasonable and necessary’ supports for the applicant. In my consideration below, I have also had regard to the decision in McGarrigle v National Disability Insurance Agency in which Mortimer J provided the following guidance to assess ‘reasonable and necessary supports’ in the Act:

   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] CEO (or the delegate or Tribunal) must either be satisfied that a support has the character of being a reasonable and necessary support, or that it does not. Once a support is identified and described…then the question for the CEO (or the delegate or Tribunal) is whether she or he is satisfied that support, as identified, is reasonable and necessary for that particular participant… That determination can only be made on the basis of probative evidence.[25]

   Paragraph 34(1)(a) of the Act – will the support assist the applicant to pursue the goals, objectives and aspirations included in his statement of goals and aspirations?

   [25] [2017] FCA 308 at [91, 93].

8. The applicant, in his NDIS plan that commenced on 15 November 2019, set out his short-term goal to ‘improve and maintain [his] health and wellbeing’ and advised he will do the following to achieve the goal:

   -    I will continue to follow the professional advise [sic] given to me.

   -    Setting up a routine will allow me to follow the advise [sic] more easily.

   -    Engaging in the community will allow me to improve my physical and social health.[26]

   [26] Exhibit T-T5, page 44.

9. I accept the oral evidence of the applicant’s mother that she wants the applicant to receive NDIS funding for naturopathy appointments and natural supplements because she believes this will improve his health and wellbeing. However, as I have set out at paragraph 36 above, I find there is no evidence from an appropriately qualified medical practitioner that establishes a relationship between the applicant’s conditions/symptoms associated with his disability of Zlotogora-Ogur Syndrome and the symptoms/health conditions for which the applicant takes natural supplements. It follows that I am satisfied there is no medical evidence before the Tribunal that shows natural therapies assist the applicant to pursue the goals stated in his NDIS plan.

10. For these reasons, I am not satisfied the requirement in paragraph 34(1)(a) of the Act is met.

    Paragraph 34(1)(b) of the Act – will the support assist the applicant to undertake activities, so as to facilitate his social and economic participation?

11. In considering whether naturopathy and natural supplements will assist the applicant to undertake activities, so as to facilitate his social and economic participation, I refer to my findings of fact in paragraph 36 above. I find there is no medical evidence before the Tribunal that demonstrates a relationship between the applicant’s conditions/symptoms associated with his disability of Zlotogora-Ogur Syndrome and the symptoms/health conditions for which the applicant takes natural supplements and seeks naturopathy.

12. I therefore cannot find the supports of naturopathy and natural supplements will assist the applicant undertake activities to facilitate his social and economic participation. I am satisfied the requirement in paragraph 34(1)(b) of the Act is not met.

    Paragraph 34(1)(c) of the Act – 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?

13. Rule 3.1 of the Support Rules sets out the relevant matters that are to be considered in deciding whether the support represents ‘value for money’. These include whether there are comparable supports which could achieve the same outcome at a substantially lower cost and/or whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant.

14. I note that the applicant’s NDIS plan from 15 November 2019 to 14 November 2020 included funding for a dietician, which can be used ‘flexibly’, but this funding has not been utilised. I am satisfied there is no other evidence before the Tribunal regarding ‘comparable supports’ and no medical evidence to show that naturopathy and natural supplements will either substantially improve the life stage outcomes for or be of long-term benefit to the applicant.

15. I am not satisfied the supports represent value for money as required by paragraph 34(1)(c) of the Act.

    Paragraph 34(1)(d) of the Act – will the support be, or likely to be, effective and beneficial having regard to current good practice?

16. Having regard to rule 3.2 of the Support Rules, I now consider whether the support of natural therapies is likely to be ‘effective and beneficial’ for the applicant in view of the available evidence. Rule 3.2 requires me to consider published and refereed literature, consensus of expert opinion, and the experience of the applicant and his mother (as his carer).

17. While I accept the oral evidence of the applicant’s mother reflects her experiences and views, as I have set out in paragraph 37, I place limited weight on her evidence because it is not verified by evidence from an appropriately qualified medical practitioner. I particularly note that her oral evidence was not supported by any reports from the applicant’s current treating medical practitioners and none of these practitioners agreed to give evidence to the Tribunal.

18. As I find no evidence that the supports will be or are likely to be effective and beneficial to the applicant having regard to current good practice, I am satisfied the requirements in paragraph 34(1)(d) of the Act are not met.

    Paragraph 34(1)(e) of the Act – does the funding take account of what it is reasonable to expect families, carers, informal networks and the community to provide?

19. I find paragraph 34(1)(e) of the Act is not relevant to this matter.

    Paragraph 34(1)(f) of the Act – is the support appropriately funded through the NDIS?

20. I note that rule 5.1 of the Support Rules sets out the ‘general criteria for supports’ and stipulates a support will not be provided or funded under the NDIS if it is not related to the participant’s disability. Rule 7.5 further stipulates that the NDIS will not be responsible for the clinical treatment of health conditions.

21. As set out in my findings of fact at paragraph 36, I am satisfied that there is no evidence that demonstrates a relationship between the applicant’s symptoms associated with his disability of Zlotogora-Ogur Syndrome and the symptoms/health conditions for which the applicant takes natural supplements and seeks naturopathy.

22. Therefore, I am not satisfied the supports of naturopathy and natural supplements are appropriately funded through the NDIS. I find the requirement in paragraph 34(1)(f) of the Act is not met.

    CONCLUSION

23. For the reasons set out above, I am not satisfied that funding for either naturopathy or natural supplements are a ‘reasonable and necessary support’ as required by subsection 34(1) of the Act.

24. Finally, and for completeness, I note the applicant’s advocate made submissions both in writing and at the hearing that the applicant previously received funding for natural therapies from the ADHC prior to becoming a participant in the NDIS. Therefore, I have considered whether the applicant is entitled to receive funding under the ‘no disadvantage principle’.

25. The Council of Australian Governments Intergovernmental Agreement for the NDIS Launch (the COAG Agreement) made on 7 December 2012 contained the following provisions:

    Continuity of Support

    60 COAG has committed to provide continuity of support to people with disability currently receiving services to ensure that they are not disadvantaged in the transition to the NDIS…

    63 Where the NDIS takes on responsibility for providing continuity of supports for a person under paragraph 62 above the Agency will work with the person to develop a transition strategy for that person. This strategy will:

    (a)ensure no disadvantage in a person’s outcomes — the supports provided by the NDIS will enable the person to achieve at least the same level of social and economic participation (or undertake the same range of activities) as enabled by their previously provided support; and

    (b)the period of this transition will depend on the person’s circumstances and the type of support being provided, and the extent to which there are alternative supports to transition to.[27]

    [27] See Intergovernmental agreements | NDIS accessed on 3 August 2021.

26. In written submissions made on 25 May 2021, the applicant’s advocate noted that prior to the formation of the NDIS, the applicant was funded for natural therapies and supplements by ADHC, who ‘previously had responsibility for disability support funding in NSW’ and with ‘the advent of NDIS…this funding was withdrawn’.[28] Dr ‘D’ also stated in her letter on 17 September 2020 that the applicant has been left ‘without any support since 2016 by his transition to NDIS…as the NDIS does not approve natural therapies and vitamin supplements.’[29]

    [28] Applicant’s Statement of Facts, Issues and Contentions dated 25 May 2021, paragraph 11.

    [29] Exhibit ST-ST7, page 179.

27. I find that, aside from the submission by the applicant’s advocate and general statement from Dr ‘D’ (who has neither seen nor treated the applicant since 2016), there is no other evidence before the Tribunal to show the applicant has been disadvantaged in his transition to the NDIS. I also find there is no evidence before the Tribunal to show that the supports provided by the NDIS have not enabled the applicant to achieve at least the same level of social and economic participation (or undertake the same range of activities) as enabled by his previously provided support.

28. Therefore, I cannot be satisfied the applicant is entitled to receive funding for natural therapies on the basis of the ‘no disadvantage principle’.

    DECISION

29. The decision under review is affirmed.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 5 August 2021

Date(s) of hearing:	14 July 2021
Advocate for the Applicant:	Mr Stephin Hargreave
Counsel for the Respondent:	Ms Sian McGee
Solicitors for the Respondent:	Mr Riley Ingham, HWL Ebsworth Lawyers