KGCW and National Disability Insurance Agency

[2024] AATA 431

KGCW and National Disability Insurance Agency [2024] AATA 431 (15 March 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/1461, 2023/0459

Re:KGCW

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member D Connolly

Date:15 March 2024

Place:Sydney

The internal review decisions of 25 January and 18 November 2022 made under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) which confirmed the reviewable decisions of 9 December 2021 and 21 September 2022 (the existing statement of participant supports) respectively, are set aside and remitted for reconsideration with directions that:

(a)the following reasonable and necessary supports will be funded under the National Disability Insurance Scheme:

(i)Core:

1.    3 hours per month of House and/or Yard Maintenance;

2.    20 hours per week for Assistance With Self-Care Activities – Standard – Weekday Daytime for 100 weeks;

3.    4 hours per week for Assistance With Self-Care Activities Saturday for 100 weeks;

4.    4 hours per week for Assistance With Self-Care Activities Sunday for 100 weeks;

5.    56 hours per year for Assistance With Self-Care Activities Public Holiday;

6.    2 hours per week for House Cleaning and Other Household Activities for 104 weeks; and

7.    Level 3 transport funding ($3,456 per year).

(ii)Capacity building:

1.    Dietetics: 26 hours per year of dietetics including two hours for report-writing;

2.    Continence: 6 hours for a continence assessment (once off); and

3.    Physiotherapy: 47 hours of physiotherapy per year.

(iii)Capital:

1.    Custom Helio C2 manual wheelchair and Alber E-Fix E35 wheelchair power assist quoted at $33,950.50.

(b)The date by which the Respondent will reassess the Applicant’s plan is 24 months from the date on which the supports under paragraph (a) are included in the Applicant’s statement of participant supports (the reassessment date).

(c)All other reasonable and necessary supports in the existing statement of participant supports, which are not funded under paragraph (a), excluding any one off assistive technology already funded and the existing transport funding already provided, shall be replicated for a period of 24 months until the reassessment date.

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

Senior Member D Connolly

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – Applicant has a mobility impairment - reasonable and necessary supports – duration of plan – whether transport funding to transport participant children should be included in the Applicant’s plan or the children’s own plans – whether the Tribunal has jurisdiction to order the Respondent to reimburse or backpay the Applicant for past transport costs – decision remitted for reconsideration

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Supports for Participants) Rules 2013

CASES

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

SECONDARY MATERIALS

The National Disability Insurance Scheme – Operational Guidelines –
Planning, (web page) Specific Types of Supports in Plans Operational Guideline - Transport (web page) FOR DECISION

Senior Member D Connolly

BACKGROUND TO REVIEW

1. The Applicant is aged 40 and has diagnoses of Spinal Scoliosis and Hypermobility Spectrum Disorder. As a result of the Applicant’s conditions, she experiences pain, fatigue, continence issues, impaired mobility and difficulty completing daily living activities. She became a participant of the National Disability Insurance Scheme (the NDIS) on the basis of these impairments.

2. The Applicant lives in regional New South Wales with three of her four children, KGWD, aged 12, MVGS, aged 14 and SMYG, aged 17. Her eldest child, who is now an adult, no longer lives with the Applicant. All the Applicant’s children have disabilities and are NDIS participants.

3. The National Disability Insurance Agency (the Respondent) has approved two plans, the subject of these reviews, as follows:

   (a)Plan A, approved on 9 December 2021, for the period to 9 December 2022, (total funding $188,638.59);

   (b)Plan B, approved on 21 September 2022, for the period to 20 September 2024 (total funding $292,571.84).

4. Both plans included funding for transport support.

5. The Applicant sought internal review of the Plan A decision, seeking various additional supports. On 25 January 2022 the internal reviewer confirmed the original decision.

6. The Applicant also sought internal review of the Plan B decision, seeking various additional supports and a longer plan period. On 18 November 2022 the internal reviewer confirmed the original decision.

7. On 22 February 2022 and 24 January 2023, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal), pursuant to section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act), for review of the internal reviewers’ decisions.[1]

   [1] JB1, AAT Application for Review of Decision, pp 1 and 219.

8. The Applicant has sought additional supports and to have the plan length changed to three years. Since the review applications were made, the parties have reached agreement about several supports in dispute, set out in detail below. The Applicant also agreed to her plan being for two years.[2]

   [2] Transcript, p 18.

9. The Applicant also sought review of decisions made about her children, KGWD, MVGS and SMYG in relation to transport supports.

10. The hearing was conducted on 29 November 2023 and 6 December 2023 by video conference and telephone. The Applicant was supported by her Support Coordinator. The hearing was combined with the hearings for the Applicant’s children, KGWD, MVGS and SMYG.

11. As at the time of the hearing there remained two issues in dispute, relating to the funding of transport supports for the Applicant’s children. The Respondent intended to include transport supports relating to KGWD and MVGS in the Applicant’s plan. The Applicant sought to have those transport supports funded in the children’s plans, rather than her plan. That issue is now resolved as the Respondent has agreed to include the children’s transport supports in their own plans.

12. The Applicant also sought reimbursement or back payment of transport supports for each of the three children. The Tribunal has written reasons for its decision in each of those cases and addresses the issue of reimbursement. As the Respondent has agreed to include transport supports in the children’s respective plans, and the Applicant has already been provided with transport supports in Plan A and Plan B, it is not necessary for the Tribunal to address the issue of reimbursement in this decision.

    LEGISLATIVE FRAMEWORK

13. A participant’s NDIS plan must include a statement of participant supports, approved in accordance with the NDIS Act, and any rules made under the NDIS Act such as the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Supports Rules).[3]

    [3] National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) ss 33(2) and (5).

14. In deciding whether to approve a statement of participant supports the Tribunal must have regard to several factors, including the Applicant’s statement of goals and any relevant assessments conducted in relation to the Applicant.[4] The Tribunal must also be satisfied the supports are reasonable and necessary.[5]

    [4] NDIS Act, ss 33(5)(a) and (b).

    [5] Ibid, s 33(5)(c).

15. Subsection 34(1) of the NDIS Act states, with respect to reasonable and necessary supports, as follows:

    (1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

    (a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;

    (b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;

    (c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

    (d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

    (e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

    (f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

    (i)     as part of a universal service obligation; or

    (ii)    in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

16. The NDIS Operational Guidelines also assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[6] The relevant Operational Guidelines are Planning (the Planning Guidelines) and Including Specific Types of Supports in Plans Operational Guideline - Transport (the Transport guidelines).

    [6] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.

    ISSUES RESOLVED AND THOSE STILL IN DISPUTE

1. It was stated in the Respondent’s Statement of Facts, Issues and Contentions (the RSFIC) that the parties have agreed that the following supports are reasonable and necessary, to be included in a 24 month plan: [7]

   [7] RSFIC at [9].

   (a)House And/or Yard Maintenance x 3 hours per month;

   (b)Assistance With Self-Care Activities - Standard - Weekday Daytime x 20 hours per week (on a non weekend day) for 100 weeks;

   (c)Assistance With Self-Care Activities Saturday x 4 hours per week for 100 weeks;

   (d)Assistance With Self-Care Activities Sunday x 4 hours per week x 100 weeks;

   (e)Assistance With Self-Care Activities Public Holiday x 56 hours per year;

   (f)House Cleaning And Other Household Activities x 2 hours per week for 104 weeks;

   (g)26 hours per year for dietetics including two hours for report-writing;

   (h)6 hours for a continence assessment (once off);

   (i)An in-principle agreement to fund a custom Helio C2 manual wheelchair and Alber E-Fix E35 wheelchair power assist (quoted at $33,950.50);

   (j)Level 3 transport funding ($3,456 per year); and

   (k)47 hours of physiotherapy per year.

2. At the hearing on 29 November 2023, the Tribunal was informed by the Respondent in its opening submissions that the only issues still in dispute were:

   (a)whether the agreed level of transport funding for the Applicant’s children, MVGS and KGWD, should be included in the Applicant’s plan, or whether the supports should be included in the children’s respective plans; and 

   (b)having agreed that the Applicant should be entitled to some level of transport funding to assist her in transporting her children MVGS and KGWD, whether the Tribunal has jurisdiction to make any orders about reimbursement or, as sought by the Applicant, back payment. 

3. The Applicant indicated during the hearing that she understood and agreed to a 24 month plan for her, stating “I understand that is because of the… large capacity building budget.  That’s fine… I have agreed to that.”[8]

   [8] Transcript, p 18.

4. The Tribunal is satisfied the parties have agreed that the supports set out in paragraph 17 are reasonable and necessary supports. It is also satisfied the parties have agreed to a 24 month plan.

   THE MATERIAL BEFORE THE TRIBUNAL

5. The Tribunal has considered the parties’ submissions and material referred to in those submissions, all the evidence provided in the joint bundle, and the oral evidence provided at the hearing.

6. The Tribunal notes Plan A (a one year plan) included transport funding, described as “a contribution towards any transport related costs you incur during the plan period and to assist with the costs of transport to work, study, or community activities”,[9] in the amount of $3,567 which was to be paid as fortnightly instalments into the Applicant’s nominated bank account.

   [9] JB1, NDIS Plan (09.12.21 – 09.12.22), p 435.

7. The Tribunal also notes Plan B (a two year plan) included transport funding, similarly described, in the amount of $6,912 which was to be paid as fortnightly instalments into the Applicant’s nominated bank account.[10]

   [10] JB1, NDIS Plan (21.09.22 – 20.09.24), p 451.

8. The Tribunal is satisfied the transport supports already provided to the Applicant were not provided for the purposes of transporting KGWD and MVGS, but were provided as transport supports for the Applicant.

9. At the hearing on 29 November 2023 the Applicant argued that the Tribunal should consider the supports for each individual participant. She questioned whether the legislation requires that children under 18 must have their transport supports included in their parent’s plan. She submitted that each individual participant has an entitlement to have their supports included in their own plan. She raised the possibility that to put a child’s support into their parent’s plan would be age discrimination.

10. At the hearing the Respondent asked the Applicant what practical difference it would make if the children’s transport supports were included in her plan, given the payments would be made into her bank account fortnightly, as their plan nominee. The Applicant stated that she breaks the funding for supports down into separate sections. She separates money for each of the children’s costs.  She makes sure that each of the children have their needs met.  For her budgeting purposes, she needs to know whose money is for what.  It also makes a difference because it is a record that transport support has been funded for the children.  The Applicant was also concerned about it being misleading, for future reference, if the support is not in the individual child’s plan.[11]

    [11] Transcript, p 18.

11. At the hearing on 29 November 2023 the Tribunal asked the Applicant to provide a description of the transport needs for KGWD and MVGS. The Applicant provided to the Tribunal a table of transport needs for each child, setting out the destination, distance and frequency of trips.

12. On reconvening on 6 December 2023, the Respondent stated that, having considered the table of transport needs, providing particulars of the requisite amount of travel required to transport the children, the Agency agreed to fund the children’s transport at level 2. It also agreed for the transport supports to be included in KGWD and MVGS’s respective plans, and not in the Applicant’s plan, as the Applicant had sought. 

13. The Applicant agreed to this level of funding and acknowledged that the Respondent had agreed that the transport supports would be included in the children’s own plans. However she continued to press for the Tribunal to make an order about back payments for transport supports for her three children, KGWD, MVGS and SMYG. The Tribunal addresses the issue of reimbursement in the reasons for decision given in each of those matters.

14. At the hearing the Applicant confirmed that, now that the Respondent has agreed that the children’s transport supports should go in their own plans, there are no other supports in dispute with respect to her plan.[12]

    [12] Ibid, p 52.

15. The Respondent indicated that, as there were no supports in dispute with respect to the Applicant’s plan, the parties could agree on terms under section 42C of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and then the matter could be resolved without the need for the Tribunal to make a decision. However, after the hearing the parties forwarded to the Tribunal correspondence indicating they were not able to agree on terms. In those circumstances the Tribunal is of the view it is appropriate to make a decision in this case.

    CONSIDERATION OF THE MATERIAL BEFORE THE TRIBUNAL

16. Having regard to the supports agreed on, set out in the RSFIC and the Applicant’s acknowledgement at the hearing that, apart from the issues relating to the transport supports for KGWD, MVGS and SMYG, there were no other issues in dispute, the Tribunal is satisfied that the supports set out in the RSFIC, and set out above, are those sought by the Applicant. The Tribunal notes transport supports were provided in Plans A and B and the Applicant is not seeking any reimbursement for her own transport supports.

17. The Tribunal has considered the statement of goals set out in the Applicant’s statement of participant supports.[13] The Applicant wishes to increase supports to maintain and build on her current physical and emotional functional capacity and reduce weight to prevent further decline. She also wants to feel and be safe in her home and community with opportunities and support to make friends, explore a new relationship and explore leisure activities that suit her current functional capacity. In the medium to long term, she would like to find and secure suitable employment that matches her abilities and does not cause a more rapid functional decline. She would also like to be able to enjoy quality time with her children, build more of a parent child relationship with them, and not be in a constant state of crisis management, but in a clean, tidy, accessible home where she can relax and manage their behaviours more positively. The Tribunal also notes there are records in the material provided to the Tribunal indicating the Applicant is studying at university.[14]

    [13] JB1, NDIS Plan (09.12.21 – 09.12.22), pp 431 – 432, and NDIS Plan (21.09.22 – 20.09.24), pp 447 – 448.

    [14] JB1, Assistive technology assessment template, pp 583 -  584 and 590. 

18. The Tribunal notes the Transport guidelines state that level 3 transport support will be provided for participants who are currently working, looking for work, or studying, at least 15 hours a week, and are unable to use public transport because of their disability. The Tribunal is satisfied the Applicant is studying. The Tribunal is satisfied the Applicant is unable to use public transport because of her disability. Accordingly it is satisfied level 3 is the appropriate level of transport support.

19. Having regard to her goals and her disability, the Tribunal is satisfied those supports agreed on, set out above, are reasonable and necessary.

    CONCLUSION

20. Considered overall, the Tribunal is satisfied the supports set out at paragraph 17, not in dispute, are reasonable and necessary supports. It is also satisfied a 24 month plan is appropriate. There is no evidence before the Tribunal to indicate that the supports provided in the Plan B are not reasonable and necessary supports.

    DECISION

21. The internal review decisions of 25 January 2022 and 18 November 2022 made under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) which confirmed the reviewable decisions of 9 December 2021 and 21 September 2022 (the existing statement of participant supports) respectively, are set aside and remitted for reconsideration with directions that:

    (a)the following reasonable and necessary supports will be funded under the National Disability Insurance Scheme:

    (i)Core:

    1.3 hours per month of House and/or Yard Maintenance;

    2.20 hours per week for Assistance With Self-Care Activities – Standard – Weekday Daytime for 100 weeks;

    3.4 hours per week for Assistance With Self-Care Activities Saturday for 100 weeks;

    4.4 hours per week for Assistance With Self-Care Activities Sunday for 100 weeks;

    5.56 hours per year for Assistance With Self-Care Activities Public Holiday;

    6.2 hours per week for House Cleaning and Other Household Activities for 104 weeks; and

    7.Level 3 transport funding ($3,456 per year).

    (ii)Capacity building:

    1.Dietetics: 26 hours per year of dietetics including two hours for report-writing;

    2.Continence: 6 hours for a continence assessment (once off); and

    3.Physiotherapy: 47 hours of physiotherapy per year.

    (iii)Capital:

    1.Custom Helio C2 manual wheelchair and Alber E-Fix E35 wheelchair power assist quoted at $33,950.50.

    (b)The date by which the Respondent will reassess the Applicant’s plan is 24 months from the date on which the supports under paragraph (a) are included in the Applicant’s statement of participant supports (the reassessment date).

    (c)All other reasonable and necessary supports in the existing statement of participant supports, which are not funded under paragraph (a), excluding any one-off assistive technology already funded and the existing transport funding already provided, shall be replicated for a period of 24 months until the reassessment date.

38.     I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for the decision herein of Senior Member D Connolly.

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

Associate

Dated: 15 March 2024

Date(s) of hearing:	29 November 2023, 6 December 2023
Date final submissions received:	18 January 2024
Advocate for the Applicant:	Ms K Matheson, Support Coordinator
Solicitors for the Respondent:	Ms A Wong, Mills Oakley