JRGL and National Disability Insurance Agency
[2022] AATA 787
•6 April 2022
JRGL and National Disability Insurance Agency [2022] AATA 787 (6 April 2022)
Division:GENERAL DIVISION
File Number(s): 2021/2244
Re:JRGL
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member I Thompson
Date:6 April 2022
Place:Adelaide
The decision under review is affirmed.
.........[Sgnd].....................................................
Member I Thompson
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – review of statement of participant supports – reasonable and necessary supports – applicant sought review of statement of participant supports – request for Ipad and keyboard – decision affirmed
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Cases
McGarrigle v National Disability Insurance Agency [2017] FCA 309.
National Disability Insurance Agency v WRMF [2020] FCAFC 79
REASONS FOR DECISION
Member I Thompson
6 April 2022
INTRODUCTION
The applicant, JRGL, is 12 years old and she will turn 13 in April 2022. She has a physical disability which affects her muscle tone, height, weight and endurance. She resides with her family and attends mainstream schooling in Year 8. As this matter concerns a child, the Tribunal has made an order under s 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth) prohibiting the disclosure of information that might identify her.
JRGL is a participant in the National Disability Insurance Scheme (NDIS). Her latest NDIS plan[1] commenced on 17 September 2020 with a plan review date set on 17 September 2021. A request for internal review was made by JRGL’s mother with regard to funding for assistive technology.
[1] Exhibit T12, p 54
On 15 March 2021 the National Disability Insurance Agency (the Agency) provided written notification[2] of the outcome of the internal review request which was specifically for funding of an iPad Pro 11 inch (2nd Gen). A delegate of the Agency’s CEO explained that the request was denied as funding for the item was not considered to be reasonable and necessary, noting that the primary purpose of the requested device:
… is to support handwriting demands in the classroom setting and at home. The NDIS is not responsible for adapting learning or supports that primarily assist participants’ educational attainment.
[2] Exhibit T2, p 20
The total cost of the requested item is $1,806.50 which comprises:
iPad Pro 11 inch (2nd Gen) $1,499
smart keyboard folio for 11 inch $269
shipping and handling $38.50
In the application[3] to the Tribunal, JRGL’s mother wrote: “my child weighs 20 kg at 12 years old, this means she has limited muscle capacity and fatigues easily. She needs a smaller lighter device than the one she has to be able to keep up and interact with her peers. She is unable to engage in a variety of activities due to her fatigue…. She would be able to use the device we requested to assist her fine, gross, speech and hearing skills as they are all impaired. This also affects her socially.”
[3] Exhibit T1, p 1, dated 12 April 2021
The hearing took place on 10 February 2022. JRGL’s mother attended the hearing by video and gave evidence. Ms Davey represented the Agency. JRGL’s occupational therapist and a school teacher gave evidence by video.
Impairment
JRGL commenced at her current mainstream school at Reception level. The school is part of the Catholic Education system. She has progressed through primary grades and is now in her second year of middle school. A report by her occupational therapist refers to a diagnosis of unilateral hearing impairment and significant delays in her fine and gross motor skills.[4] Her specialist medical practitioner wrote, in 2014 when she was commencing school, that she had “a right tympanic membrane perforation, which is a hole in her eardrum on that side. This has led to a mild conductive hearing loss on the right side only. Given her speech issues and that mild hearing loss she would benefit from being preferentially seated within the classroom so that her left ear faces the teacher.”[5]
[4] Exhibit T6
[5] Exhibit S65, p 475
Reports by her speech pathologist between 2013 and 2016 record details of a speech sound therapy program which was implemented to address her speech sound impairment. A report[6] in June 2014 indicated that she was “at an increased risk for emergent literacy difficulties”. Intensive support was provided in speech pathology under the NDIS trans-disciplinary early childhood service plan, with a report[7] dated 10 February 2015 commenting that the emphasis was on “clinic-based speech sound therapy focused on her articulation and phonology. [The speech pathologist] will also target [her] literacy skills by incorporating phonological awareness activities and writing tasks into therapy sessions.”
[6] Exhibit S32, p 461
[7] Exhibit S31, p 456
In a report[8] dated 24 November 2020 JRGL’s occupational therapist noted that she had a diagnosis of unilateral hearing impairment, her weight and height was below average for her age, and she had significant delays in her fine and gross motor skills. She had received fortnightly occupational therapy support for many years and received speech therapy support in the past. Due to delays in her fine motor skills, the report stated that JRGL requires support in her activities of daily living such as tying her shoelaces, doing up buttons and handwriting.
[8] Exhibit T6, p 28
A letter[9] written by JRGL’s mother in June 2021 refers to JRGL’s difficulties with day-to-day living: “She has always been grossly underweight which has in turn affected her fine and gross motor skill development. Due to her ongoing weight issues she is significantly behind her peers in these areas. As a family we have always done what we could for support including occupational therapy and speech therapy. [JRGL] continues to receive occupational therapy on a fortnightly basis.”
[9] Exhibit A4, p 175
NDIS PLAN (T12)
JRGL’s goals in her NDIS plan dated 17 September 2020 to 17 September 2021 are expressed in this way:
short term goals
to increase my ability to use utensils effectively i.e. using a knife to cut up food
to increase my self-care skills e.g. putting my hair in a ponytail, tying my shoelaces and doing up buttons
medium or long term goals
to be easily understood by others when I speak and to bridge the gap between myself and my peers
to be able to build my endurance and stamina so I can keep up with my peers
to continue support from my OT to improve my fine motor skills and handwriting
The NDIS plan refers to JRGL having one-on-one support at school when she was in Grade 6. It also refers to problems with fine and gross motor skills, that she is very small for her age and wears glasses all the time, and includes a reference to supports that she has under the Australian Hearing Program and administrative issues about funding for that support.
LEGISLATION AND GUIDELINES
The NDIS is established by the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), and the Agency administers the NDIS.
The objects of the NDIS Act are set out in s 3 and make particular reference to the purpose of providing reasonable and necessary supports for participants in the NDIS.
Subsection 3(1) provides in part that the objects of the NDIS Act are to:
...
(c) support the independence and social and economic participation of people with disability;
...
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports;
…
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability …
Section 4 of the NDIS Act sets out general principles to guide decisions and actions taken under the NDIS Act. Relevantly, those principles include:
(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports
…
(11) Reasonable and necessary supports for people with disability should:
(a)support people with disability to pursue their goals and maximise their independence; and
(b)support people with disability to live independently and to be included in the community as fully participating citizens; and
(c)develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment
(12) The role of families, carers, and other significant persons in the lives of people with disability is to be acknowledged and respected
…
(15) Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.
In giving effect to the objects of the NDIS Act, s 3(3) requires that regard must be given to, among other matters, “the need to ensure the financial sustainability” of the NDIS and “the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.”
Subsection 34(1) of the NDIS Act provides that, for the purposes of specifying in the statement of participant supports the reasonable and necessary supports that will be funded under the NDIS, the CEO must be satisfied that:
(a) the support will assist the participant to pursue the goals, objectives and aspirations in the participant’s statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
c) the support represents value for money in that the costs of the support are reasonable relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is most appropriately funded or provided through the NDIS and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with the reasonable adjustments required under a law dealing with discrimination on the basis of disability.
If one of the above requirements in ss 34(1)(a)–(f) is not satisfied, then the particular item is not a reasonable and necessary support.
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules) deal with the assessment and determination of “reasonable and necessary supports” that will be funded under the NDIS. The Support Rules form part of the legislation.
The NDIS Operational Guideline, “Planning” (the Planning Guideline)[10] provides information about funding for school education supports. It provides guidance with regard to school education and delineation of supports generally funded by the NDIS (assistance with daily personal activities), supports which, depending on their purpose, may be funded through the NDIS or by other parties (aids and equipment), and supports which are generally funded by other parties (all aspects of teaching and learning).
[10] Exhibit T15, p 72
It is well-established authority that the Tribunal should apply operational guidelines and government policy unless there is good reason not to do so.
Contentions
Correspondence from JRGL’s parents written in June 2021[11] and August 2021[12] set out the contentions on her behalf starting with the proposition that the iPad and keyboard would support her functional needs and her everyday life. They submit that the size, portability and weight of the requested device, compared with other bulkier devices such as tablets and laptops, would suit her individual needs by decreasing her level of fatigue and increasing her capacity in handwriting, social engagement, community involvement and development of friendships.
[11] Exhibit A4, p 175
[12] Exhibit A 5, p 176
The contentions for JRGL point to particular features of the iPad which include accessibility via direct touch access, its capacity for taking photographs and videos, the facility of talk-to-text, particular apps which are exclusive to the iPad, a longer lifespan and regularity of updates enabling her to access assistive technologies to meet her functional needs.
In its statement of issues, facts and contentions the Agency contended that the requested supports do not meet the criteria under s 34(1) of the NDIS Act and the Support Rules.
There are four limbs to this contention:
(i) The requested supports fall within Rule 5.1 (b) and/or Rule 5.1 (d) of the Support Rules as all children at the school must meet the school’s requirement at high school level to provide and use the suitable electronic device. This is not a requirement which is unique to JRGL as all parents who choose to enrol a child in that high school must make that investment. The school provides recommendations to parents about the most suitable and compatible electronic devices.
(ii) The requested supports do not represent value for money as required under section 34 (1) (c ) of the Act and Support Rule 3.1. Concerns about the weight of the device and JRGL’s physical capacity could be minimised, according to this contention, by other means such as use of a wheeled backpack, reducing the number of movements between classrooms or the distance between classrooms. It is contended that these matters were not fully investigated.
(iii) The requested supports are those which it is reasonably expected that a family would provide under section 34 (1) (e) of the NDIS Act and Support Rule 3.4. According to this contention all children at the school required to use and carry electronic device suitable for the particular, individual student. Accordingly the item in question is one which can reasonably be expected that the family provide as this is an educational need regardless of disability and in the case of JRGL, her care needs are not substantially greater than those of other children of a similar age.
(iv) The fourth limb relates to section 34 (1) (f) and Support Rule 7.14, namely that the requested supports relate primarily to education and it not an NDIS responsibility to personalise learning supports.
EVIDENCE
The oral evidence of each one of the witnesses was honest and constructive.
In evidence to the Tribunal, JRGL’s mother said that there have been improvements in her hearing following surgery in 2018. She no longer receives speech therapy and currently accesses occupational therapy on a fortnightly basis. She has continuing difficulties with gross and fine motor skills with adverse impacts in a range of activities, for example brushing hair and handwriting.
A teacher, who is also in charge of inclusive education at JRGL’s school, gave evidence by video. She confirmed that JRGL has settled in well in the transition from primary to secondary (middle) school. The teacher has a sound understanding of the school’s policy and practice in inclusivity, as she has responsibility for its management, together with an understanding of JRGL’s academic development and progress in the school environment. She was JRGL’s class teacher in 2021. She considered that JRGL had commenced this year, in Year 8, with confidence and is settling in really well. In her oral evidence she confirmed that JRGL is reaching out less for assistance with issues around inclusion. Her mother was guarded in her evidence about progress and thought it was “going all right, I guess, slowly.” She said that her daughter is anxious. Fortunately, she has a strong, close friendship group. Her parents encourage her to good effect to be independent, resourceful and to exercise and maximise her capabilities.
The teacher’s letter dated 15 June 2021 commented that an iPad would assist JRGL in moving between classrooms in the secondary school campus and not tire “from carrying around her large laptop.”[13] The teacher gave evidence about JRGL’s tiredness at school as it was a focus in the discussions about her transition at the beginning of 2021 from the primary school campus to the secondary school campus. She was small for her age and there was concern about her physical resilience. Her mother confirmed that she is still significantly underweight and she is in a lower percentile in her age group for height.
[13] Exhibit H35
The campus which JRGL now attends is described in evidence by the teacher as “quite big” with an estimate that it might be about 400 metres from one side to the other, with the gym set further away. There was a lack of precision in the evidence about distances. On average, the teacher thought that JRGL would presently be required to move between classrooms three or four times each day. The students move to different classrooms for different subjects, rather than the teacher coming to the students’ “core classroom”. English, maths and religion are subjects taught in the same classroom, while sciences and physical education are in other rooms. Going to the maths classroom necessitates taking the maths book together with the laptop and other incidental items personal to the student, for example a drink bottle and a pencil case. Books are not required for other classes and therefore not carried to them. With the exception of going to maths, the computer and a zip folder comprise the standard items to be taken to each class. Presently older students, in Year 9 and above, do not move between classrooms as frequently as the younger students and, if that pattern continues, JRGL will be moving less frequently between classrooms in the years ahead.
The teacher told the Tribunal that she could not recall that JRGL had ever complained about being tired. A support worker is present in each classroom to provide targeted assistance to a student if the occasion arises, without actually being designated to a particular student. JRGL’s mother confirmed that she walks home from school and it takes about 10 minutes. She insists on walking home with her friends.
iPad
JRGL’s occupational therapist conducted a general assistive technology assessment which followed the NDIS template. It was undertaken towards the end of 2020 and preceded the transition to secondary school. The report[14] recommended access to an iPad with keyboard for schoolwork and homework primarily because it is smaller and lighter than a laptop. In addition, it would help to reduce hand fatigue and soreness as an alternative to using a pen. A trial of the iPad was not carried out at the time as the device was not available and also because JRGL had previous experience using an iPad for recreational purposes. The report suggested that there would be increased demand for handwriting in high school. The report was referred to subsequently in a letter[15] from the occupational therapist on 29 June 2021 in which the recommendation for the iPad with keyboard was confirmed.
[14] Exhibit T6, p 18
[15] Exhibit A2, p 162
JRGL’s occupational therapist provided further details in a letter[16] dated 15 September 2021 and set out the results of comparisons between the iPad Pro 11 inch with keyboard (the requested device), the HP Pavilion x360 14 convertible 14-dw1507TU (her current laptop) and a Lenovo ThinkPad E15 Gen 2. After considering numerous matters which included specifications, technical features, applications, size, weight and cost, and doing so in the context of JRGL’s impairments and requirements, the occupational therapist concluded that the iPad Pro 11 inch is the most suitable option.
[16] Exhibit R1, p 177
In a letter[17] dated 26 August 2021 JRGL’s parents explained that she used an iPad when she was younger with various apps which they bought to assist her development. In early 2020 they bought a laptop and a carry bag, which together cost $1,600, and antivirus software for $200. The laptop had the required specifications for her education installed on it. The total cost was $1,800.
[17] Exhibit A5, p 176
JRGL’s school has a “Bring Your Own Device” (BYOD) policy.[18] It applies to all students in Years 7–12. Students are required to bring a personally owned device to school for their learning. In accordance with the school policy, the device must meet certain minimum specifications which are set out in a program handbook for parents. Key features in the comprehensive handbook,[19] which was received in evidence, are concerned with specifications and technical issues, school rules about internet access and use, registration and safety. According to the handbook a rental scheme is in place if parents cannot meet the initial cost to purchase a device, although the teacher in her oral evidence doubted if that scheme still existed at the secondary school level. In the event that families cannot afford a device at all, students can access a school laptop through the school library. That is not an option that JRGL’s mother recommends for her daughter.
[18] Exhibit R2, p 184
[19] Exhibit A3, p 163
The BYOD policy states that it is acceptable for parents to source a device from their preferred vendor. In making that decision they are advised to direct their attention to features which include battery life, weight and portability, screen size, storage capacity, memory and wireless options.[20] Two devices which are suggested on the school order portal[21] appear to reflect pricing across a range between approximately $670 and $1,250, subject to various options and additions. Each of them meet the school’s technical requirements and the demands of the curriculum. Neither of them is favoured by JRGL’s parents on grounds of perceived inferior capabilities across a range of metrics.
[20] As above, p 166
[21] Exhibit R3, p 193
CONSIDERATION
In McGarrigle v National Disability Insurance Agency, the term “support” is described by the Federal Court, per Mortimer J, as “a practical description of the means by which a person with disability is assisted”. [22]
[22] [2017] FCA 306 at [88]
The relevant provisions in the NDIS Act have been set out above. In considering the request for funding for the device, the Tribunal must have regard to the criteria in s 34(1) of the NDIS Act as further elaborated in the Support Rules. As indicated previously, the criteria in s 34(1) are cumulative so that if a requested support does not meet all the criteria it will not be a reasonable and necessary support for the purpose of s 34 of the NDIS Act.
In McGarrigle, Mortimer J stated with respect to the question of whether a support is reasonable and necessary:
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.’[23]
[23] As above at [91]
It is helpful to note comments by the Full Court of the Federal Court in National Disability Insurance Agency v WRMF:[24]
... there is no doubt that the contextual use of the phrase [‘reasonable and necessary supports’] in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies — by reference to the context, objects and guiding principles of the Act and the facts of the case — the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person’s impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.
[24] [2020] FCAFC 79 at [151]
Rule 5.1 of the Support Rules provides 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.
Rule 5.2 of the Support Rules states:
The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b) costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur
Under Support Rules 5.1(a), (b), (c) and (d), the Agency does not provide or fund a support under the NDIS if the circumstances set out in any one of those sub-rules apply. Counsel for the Agency contends that the requested support falls within Support Rules 5.1(b) and (d) as it is not related to JRGL’s disability and it is a day to day living cost which is not attributable to her disability support needs. According to this submission, the school’s BYOD requirement applies to all students and there is an element of choice in deciding the type of device which will be purchased and used at school. JRGL has a laptop which her parents purchased for her in 2020. It is a matter for them and not for the Agency if they consider that a different device would be more suitable for their daughter.
One of the issues related to this submission arises out of the evidence regarding the attributes of the requested support. In the letter[25] from JRGL’s parents the requested support was described as an iPad with “direct touch access (rather than mouse, switch or keyboard)” that makes it “highly accessible” for her. A quotation[26] was provided and the current request was made, however, the request was for the iPad plus a smart keyboard. The recommendations by JRGL’s occupational therapist factor in the keyboard in the context of her impairment. The proposition which the occupational therapist advances is that the iPad with a keyboard will enhance JRGL’s independence and it will assist in her proficiency with tasks that include taking notes, learning in the classroom and doing homework.[27] Noting that proposition, the Tribunal accepts that the request for the iPad and the keyboard together amount to a request for a support which is related to her disability and to her disability support needs.
Whether the support will assist the participant to pursue the goals, objectives and aspirations in the participant’s statement of goals and aspirations: s 34(1)(a) of the NDIS Act
[25] Exhibit A5, p 176
[26] Exhibit T5 , p 26
[27] Exhibit T6, p 28, assessment report dated 24 November 2020
JRGL’s s requested supports address aspects of the medium or long term goals in her NDIS plan,[28] which include the continuation of support from her occupational therapist to improve fine motor skills. The size and weight of the portable device are relevant to aspects of her medium and long term goal to build endurance and stamina and keep up with her peers. The criterion in s 34(1)(a) is met.
Whether the support will assist the participant to undertake activities to facilitate the participant’s social and economic participation: s 34(1)(b) of the NDIS Act
[28] Exhibit T12, p 54
This requirement is met. A theme in the correspondence from JRGL’s parents and from her occupational therapist is the assistance that she may derive in social engagement and building online friendships through use of the requested technology.
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: s 34(1)(c) of the NDIS Act
Rule 3.1 of the Support Rules, provides further guidance as follows:
Value for money
3.1 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, 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 participants 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)
The comparative cost of devices is inconclusive. The evidence of the occupational therapist indicates that cost of the requested support appeared to be within a mid to upper range of cost for devices of this kind. The upper end of that range is somewhat elastic and headed higher depending upon the number and nature of certain specifications and applications installed. The cost of the requested support, without the keyboard, is quoted as $1,349 as at September 2021. An alternative ThinkPad is quoted with a starting cost of $1,255.20 which the occupational therapist described as “one of the lowest cost ThinkPads on the market.”[29] It is less than $100 cheaper than the requested iPad.
[29] Exhibit R1 , p 177
It is important to note that the iPad will be used primarily for school education. The school’s BYOD policy applies to all students. The Planning Guideline[30] states, in part, that:
A support will not represent value for money if the NDIA cannot be confident of the associated benefits which are likely to be achieved for the participant, especially where a reliable means of measuring any benefits is lacking.
[30] Exhibit T15, p 82 [specifically at p 100]
It is a difficult task to assess “value for money” when the future and the development of a young person is weighed against cost. However, the Agency contends that issues concerning the weight of the iPad, such as carrying it to classrooms, the distance between classrooms and various options for minimising the impact of any burdens in that regard, have not been explored sufficiently. The Tribunal agrees with that submission while also acknowledging nonetheless that identifying, trialling and assessing other options would not be a straightforward process.
JRGL’s parents purchased her laptop with knowledge and understanding of the school BYOD policy. She continues to use it at school and the evidence does not indicate that it is an unsatisfactory device in a technical and practical sense. Accordingly, JRGL is presently able to use a satisfactory computer in order to meet the learning requirements at school. Whether or not it is the optimal device is another issue that has not been fully explored, tested and analysed in a way that would suggest with confidence that the cost of the additional or replacement device would bring long-term benefits. In consideration of the matters specified in Support Rule 3.1, the Tribunal is not satisfied that the requirement of value for money is met.
Whether the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice: s 34(1)(d) of the NDIS Act
The documentary and oral evidence given by JRGL’s occupational therapist supports the use of an iPad with keyboard in relation to overcoming and replacing any need for handwriting which is challenging for her both presently and in the long-term and is also a cause of fatigue. The Tribunal is satisfied that the requested supports are likely to be effective and beneficial for JRGL.
Whether 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: s 34(1)(e) of the NDIS Act
Support Rule 3.4 provides, relevantly:
3.4 In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
(a) for a participant who is a child:
(i) that it is normal for parents to provide substantial care and support for children; and
(ii) whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age; and
(iii) the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and
(iv) whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing
As noted, JRGL’s parents purchased the HP Pavilion laptop for her at the beginning of 2020 with a carry bag at a cost of $1,600. Antivirus software cost an additional $200. This is her current laptop which she uses at school and at home.
The evidence about the current laptop does not indicate that it is deficient or problematic in a technical sense. The evidence about the iPad indicates that the parents regard it as a better option between the two devices because it weighs less and would be easier to carry between classrooms. The Tribunal considers that the evidence about comparative weights is not conclusive and not convincing. According to the occupational therapist[31] the iPad weighs 466 grams. But it would come with a keyboard and its weight is not known. The weight of JRGL’s current laptop is 1.61 kg. She carries it between classes in a laptop bag strapped over her shoulder. In evidence, JRGL’s mother acknowledged the current laptop is “not too bad” in terms of its weight as all devices are “much of a muchness” in terms of weight. In her evidence the teacher could not recall any complaints by JRGL about the weight of the laptop and carrying it between classrooms. The teacher confirmed that the movement between classrooms is not for every class. She estimated three to four classroom moves per day, with the possibility that there will be a reduction in those moves over the years to Year 12. The evidence does not indicate that JRGL’s problems with dexterity and fine motor skills cause difficulty in grasping and holding on to a laptop bag.
[31] Exhibit R1, p 177
The requested iPad has access to certain applications. One of them is SnapType which the occupational therapist considers would be helpful for JRGL in her schoolwork and elsewhere. However, SnapType is incidental to the main focus of the required use of the device at school. The evidence about other features such as voice to text was equivocal. The occupational therapist did not test the proposed keyboard in her analysis of JRGL’s request and conceded in evidence that any type of standard keyboard would help with schoolwork. The teacher confirmed that the move away from handwritten work at the school is not only underway but effectively complete, or close to it. Accordingly, the essential question in this review is not concerned with requirements for handwritten work versus work to be undertaken by computer.
The school’s BYOD policy applies to all families and students at the school, after transition from primary school. In accordance with that policy, JRGL’s parents purchased a laptop for her in early 2020. Replacement of that laptop with an iPad and keyboard is a consideration for her parents in accordance with the school policy. In relation to the matters in Support Rule 3.4 the Tribunal concludes that the requirement in s 34(1)(e) of the NDIS Act is not satisfied.
The support is most appropriately funded or provided through the NDIS and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered (i) as part of a universal service obligation; or (ii) in accordance with the reasonable adjustments required under a law dealing with discrimination on the basis of disability: s 34(1)(f) of the NDIS Act
Rules 7.13 and 7.14 of the Support Rules (under the heading Considerations relating to whether supports are most appropriately funded through the NDIS) describe broadly the responsibilities which the Agency, through the NDIS, has for school education and the matters for which it is not responsible in relation to school education, as follows:
School education
7.13 The NDIS will be responsible for supports that a student requires that are associated with the functional impact of the student’s disability on their activities of daily living (that is, those not primarily relating to education or training attainment), such as personal care and support, transport to and from school and specialist supports for transition from school education to further education, training or employment that are required because of the student's disability. Any supports funded by the NDIS will recognise the operational requirements and educational objectives of schools.
7.14 The NDIS will not be responsible for personalising either learning or supports for students that primarily relate to their educational attainment (including teaching, learning assistance and aids, school building modifications and transport between school activities).
Appendix 1 in the Planning Guideline[32] provides that supports which may be provided by other parties include those which are “required primarily for educational purposes (e.g. modified computer hardware, education software, braille textbooks)”.
[32] Exhibit T15, p 122, pp 132–133
Appendix 1 in the Planning Guideline also states that supports in learning that are generally funded by other parties include “learning specific aids, equipment and resources”.
The Tribunal is satisfied that the requested supports are an aid that relate primarily to JRGL’s educational attainment. In those circumstances the NDIS is not responsible for “personalising” the learning or the support.
The Tribunal is not satisfied that the requested supports are most appropriately funded through the NDIS. Accordingly this requirement is not met.
CONCLUSION
For the reasons which have been set out, the criteria in s 34(1)(a), (b) and (d) of the NDIS Act are satisfied. The Tribunal finds that s 34(1)(c), s 34(1)(e) and s 34(1)(f) of the NDIS Act are not satisfied. As all of the six requirements in ss 34(1)(a)–(f) must be fulfilled for a support to be reasonable and necessary, it follows that JRGL’s requested supports are not most appropriately funded or provided through the NDIS.
DECISION
The decision under review is affirmed.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson
....[Sgnd]..................
AssociateDated: 6 April 2022
Date of hearing:
10 February 2022
Advocate for the Applicant:
JRGL’s mother
Advocate for the Respondent:
Ms Julia Davey, Nyland Chambers
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