Kak and National Disability Insurance Agency

Kak and National Disability Insurance Agency [2023] AATA 2004 (11 July 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/6255
Re:Yemin Kak

APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:The Honourable Pru Goward AO, Senior Member
Date:11 July 2023
Place:Sydney

The Tribunal affirms the decision under review made by the delegate dated 7 July 2022, pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
............................[SGD].......................................
The Honourable Pru Goward AO, Senior Member
CATCHWORDS
National Disability Insurance Scheme – reasonable and necessary supports – Operational Guidelines – Rugged Terrain Vehicle (RTV) – value for money – effective and beneficial – Reasonable family, carer and other support – independence – social participation – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013
CASES
Mclaughlin and National Disability Insurance Agency [2021] AATA 496
SECONDARY MATERIALS
Operational Guidelines: Including Specific Types of Supports in Plans Operational Guideline- Overview; the Guidelines
REASONS FOR DECISION
The Honourable Pru Goward AO, Senior Member
11 July 2023
INTRODUCTION

The Applicant, Yemin Kak (referred to in these proceedings as ‘Mimi’), is a 36-year-old woman who was accepted into the National Disability Insurance Scheme (‘the Scheme’) in 2018 on the basis of her Moderate Intellectual Disability with global development delay. She also suffers from congestive cardiac failure and dilated cardiomyopathy which limit her mobility, and hyperplasia of the cerebellum, affecting her balance. She has been diagnosed with Autism Spectrum Disorder, which significantly limits her communication. The Applicant lives in suburban Sydney with her mother, stepfather, and other family members. Her mother works as a psychologist and the Applicant receives a variety of daily carer supports during the week. The Applicant is also prone to “meltdowns” and refusal behaviour. She is unable to complete the tasks of daily living without assistance from family. As a result, she is highly reliant upon her mother and unable to work.
The Applicant sought internal review by the Respondent of her statement of participant supports (SOPS) of 8 June 2022 under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) (‘the Act’).
On 7 July 2022, that review confirmed the original decision and became the decision under review. The Applicant then applied to the AAT (the Tribunal) for external review of the decision under review on 3 August 2022, under s 103 (1) of the NDIS Act.
The Applicant had sought to have several significant additional supports included in her plan of 8 June 2022. These included:
1) the provision of a RTV for use on her family’s rural weekend/holiday property.
2) the installation of a lift at her family’s Sydney residence and major modifications of the bathroom at her Sydney residence.
3) Increased funding for 1:1 support worker assistance for self-care 6 hours per day, 7 days per week, was also sought. In the Applicant’s response to the Respondent’s SOFIC, this was described as 8 hours a day for 7 days a week (without an RTV) or 8 hours a day for 6 days a week, if an RTV is provided.
The hearing before the Tribunal was held on 29 and 30 May 2023. The Applicant was in attendance for the first day but did not appear on the following day. At the commencement of the hearing on 29 May, the Tribunal was advised by the Respondent that the parties were negotiating the terms of an agreement regarding the bathroom modifications, the installation of an internal lift and the provision of additional carer support, including carer support for an additional day. The Respondent was confident that agreement could be reached under s 42D of the Act. The Applicant indicated her unwillingness to have additional carer support on Sundays at the rural property, and certain other supports, such as behavioural intervention therapy.
The Tribunal accepted the Respondent’s advice that the terms of a 42D agreement would be available the following day. However, the signed terms of agreement were not provided to the Tribunal until Monday, 5 June 2023, after the hearing had concluded. Essentially, the Respondent has offered additional carer hours on Sunday, plus travel costs (Sunday support) and the Applicant accepts the additional Sunday support, unless the Tribunal decides that a RTV is a reasonable and necessary support. The home modifications requested, and some additional specialist supports, have been agreed by the Respondent.
With the agreement of the parties, I decided to limit the proceedings to a review of the Applicant’s request for the provision of a RTV on her family’s rural property. I also indicated I would deal with the request for additional carer support as part of the decision, noting here that the parties have now agreed that the provision of Sunday support is conditional upon the RTV not being supported by the Tribunal. I also note that the Respondent’s agreement to fund a lift and bathroom modifications is acknowledgement by the Respondent of the Applicant’s heart condition and hyperplasia of the cerebellum, which limit her mobility and balance.
BACKGROUND
In March 2021, the family purchased a rural property, approximately an hour’s drive from their home, for weekend and holiday use. The property, of 10 acres, includes a house, shed, dam, orchard, vegetable patch and barn and a “love shack”. It is of rocky and uneven terrain, with some slopes.
The Applicant is deeply attached to her mother, who travels to the farm each weekend to relax, work in the gardens and catch up with their extended family. Her mother may do this on any of the days from Thursday to Sunday but is generally there on Sundays. She and her husband prefer to work outside for most of the day, in addition to spending time with family and, regularly, visiting her brother, who lives nearby. The Applicant has attended the farm on occasion, but the Applicant’s representative (the Applicant’s mother) advised she often remains with her carers in the family home and is then brought by them to the farm for a few hours on Sunday afternoons.
While other family members own cars, including a utility vehicle owned by her step-father, the Applicant’s mother, although licensed to drive, does not own a vehicle. It is also noted that the proposed RTV is not for on-road use. The Applicant’s representative also denied that the RTV would be used to transport farm materials or livestock around the property.
ISSUE:
The Tribunal must determine whether the provision of an RTV for the purposes of transporting the Applicant around the family’s rural weekend property, approximately one or two days per week, satisfies the reasonable and necessary requirements in s 34 (1) of the Act.
LEGAL FRAMEWORK
Relevant Legislation
The objects and principles of the Act are set out in Part 3. The requirements of s 34 of the Act, particularly, those of s 34 (1) (c), (d) and (e) are outlined below:
(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;
Criterion under s 34(1)(c) - Value for money
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 (and the Tribunal) 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).
Criterion under s 34(1)(d) - Effective and beneficial
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.
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 take into account, and if necessary, seek expert opinion.
Criterion under s 34(1)( e) - Reasonable family, carer and other support
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;
(b)     for other participants:
(i)     the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and
(ii)     the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:
(A)     the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and
(B)     the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and
(C)    the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and
(iii)     the extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes;
(c)     for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.
CASE LAW
Regarding s34(1c) of the Act, the Respondent relies upon McGlaughlin and National Disability Insurance Agency [2021] AATA 496. In this matter, Deputy President Humphries, refers to the criterion of value for money, concerning the requirements of a reasonable and necessary support, stating:
“Paragraph (c) of the subsection requires that the support represents value for money, but specifically in the context of the goal or goals which the support is designed to achieve”.
EVIDENCE
The Tribunal has had regard to various material before it, including:
·Respondent's Statement of Facts, Issues and Contentions (dated 11 May 2023)
·Applicant's Statement of Facts, Issues and Contentions (dated 17 May 2023)
·Letter from Dr Christopher Tsang (dated 1 August 2022)
·Report of Dr Marina Baita (25 August 2014)
·Letter from Dr Christopher Tsang regarding Applicant (dated 28 November 2022)
·Additional Letter from Dr Christopher Tsang regarding Applicant (dated 23 May 2023)
·Letter from Dr Christopher Tsang regarding Ms Sawtell (dated 28 November 2022)
·Letter of Instruction to Ms Trudie Warner and list of specific questions (30 November 2022)
·Schedule of Applicant's support workers (Undated)
·Report of Psychiatrist Dr Peter Wurth (31 July 2007)
·Medical report from St George Hospital (Undated)
Bundle of evidence filed to Tribunal on 27 April 2023, including:
·Occupational Therapy report of Ms Kara Edwards (dated 25 April 2023)
·ED Discharge Referral report (dated 13 April 2021)
·Applicant’s medical certificate from Dr Amal Ibrahim (dated 1 April 2021)
·Supplementary statement of Ms Wendy Sawtell (dated 26 April 2023)
·Letters from Dr Christopher Tsang regarding both Applicant and her mother (dated 22 March 2023)
·Cardiology report of Dr Alla Waldman (dated 20 April 2023)
·Letter from Dr Alla Waldman (dated 20 April 2023)
·Report from Bankstown/Lidcombe Hospital regarding Ms Sawtell (dated 12 April 2021)
·Additional letter from Dr Christopher Tsang regarding Ms Sawtell (dated 28 October 2021)
·MRI report of Ms Sawtell (dated 16 March 2023)
·NDIS Physiotherapist report of Mr Martin Hall (dated 21 April 2023)
Second bundle of evidence filed to Tribunal on 18 May 2023, including:
·Worker’s Insurance Certificate of Currency (15 November 2022)
·Quote from Paramount Retail Services (dated 15 May 2023)
·Certificate of Currency (dated 7 February 2023)
·Brochure from Kalea Lifts (undated)
·RTV Sale Quote (dated 21 April 2023)
·Quote from Absolute Build Group (dated 18 May 2023)
·Quote from Lifts from Life (dated 12 April 2023)
·T-Documents filed on 5 August 2022
·Supplementary T-Documents filed 22 March 2023
·Further supplementary T-Documents filed 11 May 2023
Oral evidence
The Tribunal heard oral evidence from Wendy Sawtell, Martin Hall, Kara Edwards, Widyan Kabbout and Trudie Warner.
EVIDENCE AND SUBMISSIONS
The Respondent contended that the requirements of subsection 34, particularly (c, d, and e) are not met and therefore the requested support cannot be considered reasonable and necessary.
The first subsection of s 34 of the Act upon which the Respondent relies is s 34 (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.
The Respondent contended that the evidence does not demonstrate that the Applicant can only move around the property with an RTV since the Applicant can currently access some parts of the property on foot, or by car if the destination is close to the driveway. The Respondent referenced evidence that the Applicant had been to the rural property many times and had been able to reach, either on foot or in a vehicle, various locations. The Tribunal accepts that evidence, and the Respondent’s contention that whether she can access the property, either in part, in greater part or at all, is only relevant as to the degree of additional benefit the Applicant would gain from being able to do so in an RTV.
The Respondent identified the possible benefits of an RTV to the Participant to be; (1) increased independence, one of the NDIS principles identified in 1.4 (e) (i) of the Supports for Participants Rules), and (2) increased social participation, also identified in 1.4 of the Rules. The Applicant contended the purpose of the RTV is to enable her social/emotional participation through greater involvement with her family, friends and to spend quality time with her mother. The Applicant further contended that without the RTV, she would be unable to attend the farm for an extended period because of the impact this would have on both her enjoyment while at the property and on her mother's utilisation of the property.
The Applicant contended that the provision of a RTV was value for money compared with the provision of additional carer support on Sundays, which involves penalty rates.
Independence
The Respondent rejects the notion that it will improve the Applicant’s independence: “…as another person is required to operate the RTV for the Applicant” and relies on the Rules to contend that the RTV “will not improve [the Applicant’s] independence; but is being sought because she is dependent on assistive technology. This technology enables her to reach parts of the property that are inaccessible to her, or very difficult for her to access on foot. Furthermore, the Respondent contended that it is not a support that will build any capacity in her or make her more independent in interacting with her mother or her family on the property.
The Applicant did not disagree with the Respondent’s contention that the RTV would not provide the Applicant with greater independence and the Tribunal accepts this although, as the Applicant contended, it may improve the variety of her day and bring other benefits.
Social participation
The Respondent contended that the Applicant has enjoyed social participation at the farm in the absence of an RTV, joining in with her family members and being part of family occasions at the farm or nearby, but also contends that, while this may satisfy the provisions of s 34 (b), the following section, s34 (c), value for money, requires that the cost of providing the benefits is reasonable compared with the benefits achieved. The Tribunal deals with this contention at a later point in this decision.
The Applicant’s representative contended the benefits of social interaction flowed from her connection to her extended family. She told the Tribunal that the Applicant usually stays at the family home in Sydney with her carers on Sunday but is brought to the farm in a carer vehicle; “Mimi needs connection with her very large, extended family. Mimi needs to be with me. Mimi is dropped off at between 3 and 4 pm on Sundays, but that means she misses family activities at the farm”.
The Applicant’s representative described how she enjoyed the farm more when she was not encumbered by her daughter’s limitations but:
“if Mimi was able to stay on the land with me, on a Sunday, and she would experience things like barbecues, games with the kids, singing and dancing, gathering autumn leaves for mulching, duck feeding, animal handling when we go to my brother’s farm…”
“Mimi needs to foster connection with her very large extended family, who offer her frequent love. She gets hugs and kisses and interactions with her family that she cannot get with her carers. Mimi wants time with mum, who knows her best, loves and supports her, in a manner that is far superior to any other form of care. This is Mimi’s choice.”

The Applicant’s final submission described the access she would enjoy in glowing terms:
“When the carer drops her off, on Sunday afternoon, Mimi has already missed out on the excited flurry of meeting and greeting, as family members arrive successively. I hear the yelps of young children as they jump out of their parents’ cars and they run to me with their open arms, with kisses and hugs and cheers.
Mimi is always included in this process …. Family members, young and old, always seek her out to engage her to greet her when they arrive and to say goodbye when they leave. They poke fun at her, to get a laugh and a smile out of her. She sits beside me the whole time and is patted. I rub her back, I smile at her, I interact with her. She feels included and involved in her family setting”.
The Respondent opined that this interaction was already available to the Applicant and from the description provided by the Applicant’s representative, this is clearly the case. The dispute is about the size of the additional benefit if this happened more frequently.
Evidence provided in expert reports, including in the Applicant’s mother’s statement and in oral evidence, consistently supported the Applicant’s claim that because of her impairments, she was unable to walk to all parts of the property. Furthermore, her continence challenges would make a timely return to the house, for toileting, very difficult from many parts of the property. The Tribunal has largely accepted that evidence, which is explored further in the following paragraphs.
It was also accepted by the parties and the Tribunal that although the Applicant can reach some parts of the property on foot, she requires support and supervision. She also requires rests, which slow both her progress and that of her carer. It is noted that her mother generally provides this support but has increasing health problems that make physically supporting her daughter difficult, which will be addressed later in this decision.
Based on the evidence provided, which was not contested by the Respondent, if the Applicant becomes tired, she may refuse to walk further and engage in self-harming behaviours and “meltdowns”. The Tribunal accepts this evidence and further accepts that the Applicant is only willing to make a limited number of excursions from the house over the course of the day and spends a large amount of her time inside the house, using her iPad.
Evidence of Mr Martin Hall
There is a general concern (as expressed by the Applicant’s mother; Martin Hall, physiotherapist; and other treating clinicians) about the Applicant’s obesity and declining fitness. The Tribunal accepts that the Applicant needs to exercise in order to maintain her current level of physical fitness, but, consistent with medical advice, as reiterated by her mother, that exercise should not put undue strain on her heart. Further, as Martin Hall observed, the Applicant’s resistance to compliance is likely to make a structured exercise program of little use. The Tribunal understands this resistance would include occasions when the Applicant was required to walk to various sites at the property.
Evidence of Ms Trudie Warner
The Tribunal accepts that many of the experts, including the independent occupational therapist, Trudie Warner, considered that an RTV would enable the Applicant to travel safely to various locations around the property and potentially to gain greater enjoyment from the property. As Ms Warner put it in her report (Warner Report):
“The ability to safely access these locations would enable both Ms Kak and Ms Sawtell to engage in these activities...It …would positively impact on Ms Kak’s mental health. Additionally, it would prevent Ms Sawtell from being housebound with Ms Kak…”
She added “The requirement for the RTV is a direct result of her dilated cardiomyopathy and consequent reduced activity tolerance and endurance”.
Considerable evidence was provided during the hearing about the Applicant’s underlying medical conditions, poor balance and low cognition, which would combine to ensure a low likelihood of significant improvement in her exercise tolerance from walking across the property. While the Respondent challenged some of these assertions, pointing to advice that the Applicant has previously responded well to additional exercise, the case was generally made that making the Applicant walk significantly more at the property was an unrealistic ambition.
During the hearing, and in the SOFIC, the Respondent challenged the Applicant’s claim of only having limited capacity to walk around the property and stressed the importance of encouraging the Applicant to improve her exercise tolerance. Ultimately however, the Respondent barely relied upon that evidence but instead agreed:
“I am not suggesting that exercise will help her access all parts of the property…the barn, the love-shack and the dam[she] will be …unable to walk to these sites on the property”. Accordingly, in closing submissions, these arguments were not pursued to any degree and as the Respondent observed:
“It may be the fact that there’s very little difference between the parties concerning it. Mimi is someone who has some ability to walk, to access areas, sometimes with the assistance of holding on to a person for support but, as observed by Ms Warner, she can get around, including on some difficult terrain, but without walking too far, she can get around without assisting technology. [the RTV].”
The Applicant’s representative drew on the close relationship with her daughter to contend that it is only on weekends that she is able to give her daughter “quality time”. She described a working week of extreme busy-ness and stress, culminating in evenings when she is “smashed”, stating, “I don’t want to speak to anyone”. This is further complicated by her daughter’s complex needs and the mother’s wish to then spend her weekends primarily outside, working at the property. In the mother’s view, a RTV would enable her to simultaneously continue her weekend farming activities and have quality time with her daughter.
The Applicant’s representative/mother stressed, and this was not disputed, that not only does her daughter have difficulty in walking around the property, she has difficulty in supporting her daughter to do so. She made several references to her own physical ailments, including bursitis in her shoulder, and how they limited her ability to protect the Applicant when she struggled to steady herself walking at the farm;
“I have physical difficulties and I can’t break her fall” … “Mimi and I are a package, I have needs too”.
The Respondent did not accept that the RTV will provide the Applicant with access to her mother, another potential benefit, and observed, in closing submissions, that the Applicant is already able to enjoy social interaction with her extended family without the RTV, and that the Applicant has access to her mother every day.
The Tribunal notes that, while the quality of this mother-daughter time might be compromised by the mother’s work and housekeeping obligations, this is a dilemma faced by many mothers in the workforce and cannot be said to arise solely from the Applicant’s disabilities.
The Respondent opined that the benefit of the RTV would primarily be to enable the Applicant’s mother to pursue her farm activities while having her daughter nearby, the Applicant thus being able to fit in with how the Applicant’s mother wishes to spend her day. The RTV is being sought so that Ms Sawtell [the Applicant’s mother] can get the full enjoyment of the property, not Mimi [the Applicant].
The Applicant’s mother did not dispute this, describing her busy day at the farm as refreshing and pleasant for her;
“I just don’t come inside all day long, I’m just moving from one location to the next. … So I’ll go to my veggie patch, I’ll go to the barn, I’ll go check out what he’[husband] ‘s doing, I’ll go sit at the dam, I’ll sit at the love shack, I’ll walk around, see how the trees are going, I’ll prune them a bit - a few things, or I’ll walk down to the beehives and see what’s going on there and - I just need to do that to refresh for the week every week. It’s been the best thing I’ve ever done in my whole life.
And yes, I know it’s not about me but I too am disabled with Mimi and I’m 55 years old now and I don’t think I am asking for a lot and I’m mindful that Mimi’s condition is very severe. I am mindful that she may not be around for very long and I really cherish the time I have with her. And I want her to spend Sundays with me and I know she wants to be with me at every opportunity. And that’s what the RV is going to do”.
The Applicant described needing to return to the house to be with Mimi when Mimi is too tired to walk, or when the carers are absent, in stark terms:
“I have to go back to the house and be stuck indoors because she can’t be left alone…I am paralysed in the house.”
The Applicant’s mother considers life for both of them would be very different with an RTV:
“ if she did have an RTV or a buggie she would have an additional 15 hours of activity”.
Evidence of Ms Widyan Kabbout
It became clear from the evidence of Ms Kabbout, an OT who assessed the Applicant’s suitability for a RTV over several meetings, that having a RTV to go to a site on the property would not necessarily mean the Applicant would enjoy it or be active. Indeed, the reason a RTV with air-conditioning, a sealed cabin and a sound system were extras she recommended for inclusion in the purchase, was that the Applicant might suffer insect bites if she were outside the vehicle, or sunburn, or she might refuse to get out of the vehicle and prefer to sit inside and listen to her music. During cross examination by the Respondent, Ms Kabbout said:
“Well there are possibilities given her disability and the meltdowns that she has that she may refuse to get out. This is not to say that this happens all the time but in the case that it does, she needs to be in a space that is safe for her because her carer can then be out doing what they need to do close by”.
For confirmation, Ms Kabbout was then asked:
“…And if there was no risk of Mimi refusing to get out of the vehicle, and assuming on this particular property it might only take one or two or three minutes to drive between particular locations, in those circumstances there wouldn’t be a need for climate control, radio, things like that; do you accept that? I do accept that. In my assessment it was based on the fact that if we could ensure the utmost safety for Yemin for the instances that she does have those meltdowns and refuses to get out, for the instance that, God forbid, for any reason it turns over, or something happens, that she would have that protection because she cannot protect herself. She doesn’t have quick reflexes. She doesn’t have the processing speed or the ability to do it herself’.
Ms Kabbout’s evidence, paints a picture of a person who, in Ms Kabbout’s words, inside a RTV, “cannot protect herself”. Since Ms Kabbout agreed the RTV had not been trialled by the Applicant on the property; how the Applicant would cope with riding over the terrain or with the vehicle tipping, remain unknowns. This was explored further by the Respondent in closing submissions:
“There is also a question concerning long-term benefit about Mimi’s ability to enjoy and tolerate the RTV. There’s no evidence that Mimi has, in fact, been driven for any distance in one, let alone the one that is proposed to be purchased. She’s climbed into and gotten out of, according to Ms Kabbout, two vehicles, during the Camden trial, and photos taken of that that appear in Ms Kabbout’s report. You’ve seen them, Senior Member, of the cabin for the vehicle that Mimi is climbing into is, according to Ms Kabbout’s report, approximately 30 centimetres from the ground. It involved Mimi taking a large step, for her, to enter the cabin, using her arms to hoist herself in. In circumstances where Mimi does have exercise tolerance issues, it shouldn’t be assumed that she will have the tolerance to spend a day, up and back, in the RTV, on the property, going to location to location, back to the house for the necessary meal and toilet and rest breaks that would eventuate, and we don’t know. We simply don’t know what Mimi’s tolerance for those sorts of activities will be. There’s just no evidence for it, or about it.”
The Respondent contended there was insufficient evidence that the RTV would be used by the Applicant in the manner intended by her mother, whatever the benefit. In closing submissions, the Respondent relied on 3.1 of the Rules, which require the CEO to consider whether the support will substantially improve the life of the participant. The Respondent contends there is no evidence that the Applicant would tolerate a RTV:
“Photos from Camden Machinery show the Applicant can hoist herself 30 cms from the ground into the vehicle; it shouldn’t be assumed she will have the tolerance for pulling herself in and out of the vehicle several times a day. Ms Sawtell [the Applicant’s mother] gave evidence that [the Applicant] could walk to the veggie garden and back, and then didn’t want to go out again”.
The Tribunal notes the evidence of Ms Kabbout, who refers to the Applicant’s limited ability to brace herself, “Mimi can’t brace herself if there’s an impact”.
The Tribunal finds, having considered all the evidence provided about the benefits to the Applicant, that on balance these are untested claims made by Applicant and the Applicant’s OT. However, substantial benefit would be enjoyed by the Applicant’s mother since it would allow her the satisfaction, perhaps relief of guilt, from having her daughter close by while she worked at the property. Further, whatever benefit did arise would apply only on those days of the weekend when the Applicant was brought to the farm.
Value for money
Section 34 (1) (c) of the Act also requires that the cost of providing the benefits is reasonable when compared with those benefits. The Respondent contended that where the support is to be used for access to specific areas of a weekend property (i.e. is not intended to be a daily used support) that ‘comparable costs of leasing the equipment is a relevant consideration”. In the event, leasing costs were not pursued. However, the Respondent contended that the use of the step-father’s utility to transport Mimi was a potentially more cost-effective solution which appeared not to have been explored and was in any case, an informal support which could be provided by a family member. In closing submissions, the Respondent observed:
Despite there being some suggestion, just today, about there being some difficulties for Mimi climbing into and out of the utility vehicle, there’s no evidence given about that and, indeed, to the contrary, it seems that Mimi has been able to use that vehicle to get to the property in the past. The evidence is that she’s done so.
I note that the two OTs who gave evidence to the Tribunal did not explore opportunities for modifying the utility to enable greater access by the Applicant.
The Applicant's representative described the difficulties in raising the Applicant into the utility and fastening her seatbelt. Further, that the vehicle was often in use by the Applicant's step-father for farm-related purposes.
The Tribunal accepts that the use of the utility, perhaps modified, could have been considered as a cost-effective alternative to purchasing a RTV with air conditioning, radio, and full enclosure. However, there are other considerations regarding whether the RTV is value for money for the Tribunal to address, such as the Applicant’s parents’ decision to purchase a lifestyle property which obviously pose mobility challenges for this Applicant. As contended by the Respondent:
“It means that the family has a secondary property that they can enjoy during the week, but that property has natural features about it that are and always have been difficult for Mimi to access and Mimi’s abilities, or lack thereof to access certain parts of the property, would have been evident to anyone who turned their mind to that, upon looking at the terrain of that property, from what [her mother] has said about it. So, again, choices are made. That doesn’t set the boundaries as to what then becomes reasonable and necessary.”
The Tribunal notes that in cross examination, the Applicant’s mother acknowledged that the Applicant’s mobility needs had not been considered when they bought the property, as agreed in this exchange:
And when you purchased the property, you were aware, of course, that Mimi’s ability to herself access all parts of the property would be extremely impeded?---That actually didn’t occur to me at all. I fell in love with the property because - it’s not evident in the picture, but the fellow that had it before us had owned it from the time it was virgin land, and he spent literally nine and a half years building the most amazing drystone rock walls that beautify that entire back region behind the house, and I just fell in love with it.
The Applicant contended that the purchase of a RTV should be compared with the cost of employing carers to be with her on weekends. The Tribunal infers that the Applicant’s argument is that having carers at the farm is the only other way of allowing the Applicant to be at the farm for extended weekend periods, rather than for a few hours late on Sunday afternoons. The validity of this comparison rests on the assumption that the benefit to the Applicant provided by the RTV is equivalent to that provided by weekend carers. As the Respondent contended, there is limited evidence that the RTV would provide a sustained benefit to the Applicant and the Tribunal accepts there is insufficient evidence of such benefit. With respect to carers, no evidence was provided about the Applicant’s preferences regarding their presence on the weekends, although the Applicant’s Representative stressed her own preference not to have them “in my face” on weekends.
The Applicant contends that the capital cost of the RTV, if amortised over a year or so, would be more cost effective than paying for carers to accompany her to the farm each weekend, applying weekend penalty rates and travel time.
As she told the Tribunal, it would
“…save the NDIA $45,000 per annum by not providing the additional carer hours on Sunday”.
The Tribunal notes that while the quantum of this might not be exact, the general point is clearly made. The Tribunal finds the provision of an RTV to be cheaper, over the course of a year or so, than the provision of additional carer support. The Tribunal considers the benefit derived from each option remains the issue.
The Applicant contended the RTV would allow her family to enjoy their weekends and holidays without the encumbrance of outsiders. This was not disputed by the Respondent and although it is accepted by the Tribunal, does not represent a sufficient reason for not having carers at the property.
Effective and beneficial
In addressing s 34 (1) (d), which requires that the support be effective and beneficial, the Respondent has relied on similar contentions and evidence as applied to s 34 (1) (c), value for money, observing:
“It is somewhat unknown whether Mimi’s quality of life will be improved by being able to access additional parts of the property, as the RTV will permit her to do. With appropriate accommodation of her disabilities, she can participate in family life on the property.”
The Respondent’s SOFIC also contends:
“the RTV would not be effective and beneficial in improving the Applicant’s mobility and endurance to access areas of the property independently or promote a healthier lifestyle through exercise”, also noting that there had been some benefit from exercise in the past.
The Applicant’s representative contended that the support was effective and beneficial based on evidence provided about the activities available at the farm and the opportunity for greater engagement with her mother and extended family. The mother’s wish to have her child with her on Sundays is entirely reasonable and the Tribunal understands that she believes the companionship they would enjoy is reward enough, and of benefit to the Applicant, while at the same time allowing the mother to get on with doing the things on the farm that she enjoys and wants to do. The Tribunal understands the benefit to the mother of both assuaging her “mother guilt” but also enabling her to enjoy the property, is a real concern to her. However, the Tribunal does not consider those concerns to be relevant to the requirement that the support be reasonable and necessary for the Applicant, as required by s 34.

The Applicant’s representative also strongly disagreed with the proposition that her daughter was capable of much improvement in her health through exercise. This was well supported by expert evidence and the Tribunal accepts that capacity building is not central to the potential benefits of providing either carer support or an RTV.
Overall, the evidence provided by the Applicant regarding the satisfaction of s 34 (1) (c) and those of s 34 (1) (d) are similar, as are those made by the Respondent. Accordingly, subsequently in this decision, I have integrated the evidence I have considered for both ss 34 (1) (c) and (d).
Reasonable family, carer and other support
With respect to s 34 (1) (e), which requires that a funded support be one which cannot be provided informally, either by the family or the community, the parties addressed the option of using the step-father’s utility more often to transport the Applicant around the property. The Respondent asserted there had been insufficient attention paid to this as an option; the Applicant dismissed it as a vehicle the Applicant struggled to enter and a vehicle her step-father already used frequently during weekends at the property, thus limiting its availability to her. The Tribunal finds that the utility vehicle is unlikely to be a satisfactory substitute at all times over the course of the weekend, given the Applicant’s evidence, notwithstanding that the option of modifying the vehicle could reasonably have been considered by the Applicant.
The Respondent contended in closing submissions that the property was purchased by the parents without considering the difficulties their daughter might have in accessing it and therefore them, on weekends. Instead, they purchased it for their own enjoyment, as they are entitled to do, but with obligations:
“no one is suggesting that one is not able to choose how one wants to live and spend their leisure time, those are proper decisions to make, including carers of people with disabilities. But what’s reasonable and necessary needs to have regard to the choices that people make in looking at whether what is sought has that element, I don’t use the word ‘of necessity’, but reasonably necessary, in the circumstance.”
The Respondent opined that such a choice of enjoyment makes the provision of additional support in the form of a RTV to be the responsibility of the family which made what was essentially a lifestyle choice. The contention about choice and reasonable necessity is a reflection on what is reasonable for the family to provide. It was not addressed by the Applicant’s representative, whose focus remained on the importance of allowing her, as a mother, to both enjoy her life at the farm and fulfill her wish and her belief she should have her daughter with her as much as possible, for the reasons previously referenced.
TRIBUNAL’S CONSIDERATIONS
In summary, the question for the Tribunal in satisfying s 34 (1) (c) and (d) pivots on the benefits the Applicant would derive from each option; either additional carer support at weekends, or the RTV. In satisfying s 34 (e), whether the family should provide an RTV as part of their informal support, the question for the Tribunal is also whether the provision of an all- terrain RTV should be borne by the family because of their choice of this property as a source of enjoyment.
Firstly, providing carers means the Applicant would be constantly and consistently supported while at the farm, but not able to access all parts of the property and not necessarily be with her mother when outdoors. It would, however, enable the important family contact her mother describes. These are undisputed benefits and limitations of this option; no evidence was provided that the Applicant’s carers could not care for her adequately. Despite this, and perhaps understandably, the presence of carers at weekends is not welcomed by the family, including the Applicant’s representative, her mother, and is the more expensive option over time.
Whereas providing an RTV, while it means the mother would also allow the Applicant to be at the farm for longer, has different benefits to the provision of additional carer support. It potentially expands the Applicant’s opportunities to access the property in the company of her mother and enjoy a more varied range of activities such as collecting leaves, farm eggs or simply enjoying the view. In practice, with little evidence of the certainty of these benefits, this may not prove to be the case.
Given the Applicant’s cognition, balance, other physical limitations, her propensity for meltdowns and inability to brace herself in the event of a sudden change in movement, she may access the RTV less often, or more unreliably, than her mother so sincerely hopes. There is no evidence either way. In these circumstances, it may well eventuate that the Applicant derives little additional time with her mother outdoors or greater benefit from being at the property and is of little additional value to her. This would also impact on the mother’s enjoyment of the property since no carers would be there to accommodate her daughter were the RTV to prove unsuitable.
In satisfying s 34 (1) (e), the Respondent has contended that the decision to purchase the property was underpinned by the family’s lifestyle choices and that any consequent additional assistance required should be regarded as a day-to-day living cost, which the family should provide. The Tribunal accepts this contention, appreciating that the need for an all-terrain vehicle derives directly from the family’s choice of weekend property. The Tribunal also recognises that in this case, the provision of additional carer hours for Sundays at the farm could have been agreed to if the family were not at the farm, but, in any case, is not, ultimately, in dispute.
The Tribunal considers that the case for the provision of an RTV (as a form of assisted technology) first requires confirmation that the Applicant has only a limited capacity to walk to various parts of the rural property. The Tribunal finds this to be the case. The Tribunal also finds that arguments about the importance of encouraging the Applicant to increase her exercise tolerance, by, it is inferred, denying her access to an RTV, are of little relevance to the decision to be made for this Applicant, because of her health conditions.
However, agreement between the parties that the Applicant cannot access all parts of the property without an RTV, or even agreement on the limited capacity of the Applicant to walk to some sites on the property, do not mean that providing a RTV is reasonable and necessary, as the Act requires in s 34. The Applicant’s need for the assisted technology for her to access all parts of the property is but one of several necessary requirements; alone, it is not sufficient.
More frequent family interaction is posited by the Applicant as relying on having a RTV, even though the social interaction in question is not directly reliant on an RTV to bring the Applicant to the family. Rather, the Applicant’s absence from these family interactions at the property, or her uncle’s property, is based on her mother’s insistence that without a RTV, she is not prepared to have her daughter there until late Sunday afternoons, when she is brought by carers. The Applicant’s mother made it clear, in oral evidence and final submissions, that her daughter’s presence at the farm significantly limited her own activities, and she firmly believed that an RTV would address this limitation. This is not a criticism of the Applicant’s representative; she has every entitlement to a weekend spent as she wants, and the Tribunal deeply appreciates the restrictions placed upon her over many years by the Applicant’s obvious limitations. However, it is only to the Applicant’s benefit because her mother has deemed that her daughter will not attend the farm without there being an RTV available.
The Tribunal finds that the evidence of the Applicant’s mother supports a finding that the Applicant’s preference for an RTV is primarily to enable her mother to pursue her farm activities, keeping her daughter close by, having only to return to the house for toileting or household activities.
The Tribunal, even if it were convinced that the Applicant would gain significant benefit from being able to access a greater part of the property in the RTV (and there was little evidence that the Applicant had any preference for these outdoors activities) concludes there is insufficient evidence to support the sustained use of an RTV for this purpose. While it might, theoretically enable the Applicant’s mother to get on with her day, there are real doubts that the Applicant will in fact use the RTV to any great degree. Similarly, there is insufficient evidence that the Applicant would physically or mentally cope in a RTV traversing rocky and unpredictable terrain, without accident and potentially with “meltdown”. Ms Kabboutt stressed the need for the RTV to also have air conditioning, radio, and music access so the Applicant can stay in the vehicle doing what she is known to enjoy. This further underscores the point that doubts exist about the likelihood of the Applicant accompanying her mother outside the vehicle in the way her mother so sincerely wishes.
The Tribunal finds that there is insufficient evidence that the RTV would provide significant benefit to the Applicant, and strong evidence that the RTV might not be used as often or in the manner hoped for by her mother. While the RTV is the cheaper option over time, there is, accordingly, insufficient evidence that it would be value for money.
The Tribunal also considers that a vehicle which, at very best, will only be used one or two days each week, limits its value relative to its cost. The fact that this vehicle is located on a property which is not the Applicant’s primary place of residence, further detracts from its long-term value and ability to satisfy s 34 (1) (e) of the Act.
CONCLUSION
The Tribunal concludes there is sufficient evidence that additional carer support provided at the property on Sundays would provide adequate care and supervision of the Applicant, greater social engagement with her family and enable the mother to pursue her outside activities. There would, however, be little additional farm-based activity available to the Applicant because of her limited ability to walk far from the house.
The Tribunal concludes the purchase of a RTV would not be value for money and thus does not meet the requirements of s 34 (1) (c) of the Act. The same lack of evidence to support the value of the purchase also means the Tribunal concludes that the requirements of s 34 (1) (d) requiring the support to be effective and beneficial, are not met.
The Tribunal concludes that the family’s purchase of this property, with its significant mobility challenges for their daughter, was a lifestyle choice they made and, consistent with 34 (1) (e) of the Act, the requested support is reasonably one the family can provide.
DECISION
For the reasons given above, the Tribunal has decided that the requested support of an RTV does not meet the requirements of s 34 (1), (c, d and e) and that the alternative, of additional carer support, is more likely to meet the Applicant’s needs.
The Tribunal affirms the decision under review dated 7 July 2022, pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Goward

.............................[SGD].........................................
Associate
Dated: 11 July 2023

Date of hearing: 29 and 30 May 2023

Advocate for the Applicant: Ms Wendy Sawtell

Counsel for the Respondent: Mr Gregory Johnson

Solicitor for the Respondent: Ms Mady Tidy

[2023] AATA 2004

11 July 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	29 and 30 May 2023
Advocate for the Applicant:	Ms Wendy Sawtell
Counsel for the Respondent:	Mr Gregory Johnson
Solicitor for the Respondent:	Ms Mady Tidy