King and National Disability Insurance Agency
[2017] AATA 643
•4 May 2017
King and National Disability Insurance Agency [2017] AATA 643 (4 May 2017)
Division
National Disability Insurance Scheme Division
File Number(s)
2016/6015
Re
Jessica King
APPLICANT
And
National Disability Insurance Agency
RESPONDENT
DECISION
Tribunal K. Parker, Member
Date 4 May 2017 Place Melbourne The Tribunal sets aside the decision under review and substitutes a decision that Jessica King’s National Disability Insurance Scheme plan dated 12 August 2016 be amended to include the following additional supports for Ms King:
1. An annual gym membership for Ms King ($570);
2.Fortnightly physiotherapy sessions ($175 per hourly session) for the duration of the plan; and
3.An additional five physiotherapy sessions ($175 per hourly session) to be taken at any time, comprising:
(a)Three physiotherapy sessions for the purpose of training Ms King’s carers how to assist Ms King when she is at the gym to undertake an exercise program as recommended by Ms King’s physiotherapist; and
(b)Two physiotherapist sessions at Ms King’s home in addition to all of the above physiotherapy sessions referred to above.
.....................................[sgd]...................................
K. Parker, Member
NATIONAL DISABILITY INSURANCE SCHEME - participant’s plan - application for amendment of plan to include additional supports - gymnasium membership - physiotherapy sessions - whether supports reasonable and necessary - whether supports represent value for money - whether supports assist in undertaking activities to facilitate social and economic participation - whether supports effective and beneficial - consideration of other support available - whether supports most appropriately funded through agency - decision under review set aside
Legislation
National Disability Insurance Scheme Act 2013 (Cth) ss 33, 34, 35
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Cases
McGarrigle v National Disability Insurance Agency [2017] FCA 308
REASONS FOR DECISION
K. Parker, Member
4 May 2017
INTRODUCTION
On 12 August 2016 a plan (Plan) was entered into between Jessica King (Ms King) and the National Disability Insurance Agency (NDIA)[1] under the s 33 of the National Disability Support Scheme Act (Cth) (the Act). The Plan succeeded three earlier plans. The Plan commenced on 12 August 2016 and is due to expire on 14 August 2017.
[1] The NDIA was established under s 117 of the Act and is formerly named the National Disability Insurance Scheme Launch Transition Agency.
Ms King sought an internal review of the statement of participant supports in the Plan by the NDIA. Ms King sought the inclusion of an additional 20 hours of physiotherapy and a gym membership as supports in her statement of participant supports. In entering into a plan under s 33 of the Act, the NDIA is required to prepare and approve a statement of participant’s supports, which sets out the supports which will be funded or provided under the National Disability Insurance Scheme. Exercising the discretion under s 33(2) of the Act, the NDIA had not approved the addition of the physiotherapy and gym membership referred to above in the statement of participant supports.
By letter dated 21 October 2016, a review officer of the NDIA notified Ms King, in effect, that the requested additional supports were not considered reasonable and necessary supports under s 34 of the Act and as such, the decision by the NDIA not to approve the inclusion of those supports in the Plan was upheld. On 3 November 2016, Ms King applied to this Tribunal for review of this decision.
A hearing took place on 27 March 2017. Ms King attended in person with her mother and primary carer, Gail King (Mrs King). Ms King was represented by Victoria Legal Aid and the Rights, Information and Advocacy Centre. Mrs King and Ms King’s treating physiotherapist, Kim Clatworthy (Ms Clatworthy) also gave oral evidence at the hearing. A further report dated 5 April 2017 was provided by Ms Clatworthy after the hearing at the request of the Tribunal.
For the reasons set out in this decision, the Tribunal sets aside the decision under review, and substitutes a decision approving the inclusion of the following additional participant supports for Ms King on the basis that they are reasonable and necessary supports within the meaning of s 34 of the Act:
(a)An annual gym membership for Ms King ($570);
(b)Fortnightly physiotherapy sessions ($175 per hourly session) for the remaining duration of the Plan; and
(c)An additional five physiotherapy sessions ($175 per hourly session) to be taken at any time, comprising:
(i)Three physiotherapy sessions for the purpose of training Ms King’s carers how to assist Ms King when she is at the gym to undertake an exercise program as recommended by Ms King’s physiotherapist; and
(ii)Two physiotherapist sessions at Ms King’s home in addition to all of the above physiotherapy sessions referred to above.
ISSUES
At the hearing, following Ms Clatworthy’s oral evidence, the NDIA’s representative advised the Tribunal that the NDIA agreed to include an additional participant support in the Plan of fortnightly physiotherapy sessions for the remaining duration of the Plan.
Further, on 21 April 2017 the NDIA wrote to Tribunal to advise that NDIA agreed to fund:
(a)the “$500 gym membership fee sought by Ms King”;
(b)two additional physiotherapy sessions for Ms King as recommended by Ms Clatworthy; and
(c)three physiotherapy sessions to train carers to the extent that these sessions related to a new exercise program with existing carers.
Based on those late developments, it appears to the Tribunal that the NDIA and Ms King remain in dispute in relation to:
(a)Whether the NDIA should fund Ms King’s gym membership in full, being $570 according to Ms King. The Tribunal acknowledges that the NDIA is prepared to fund $500 of this amount;
(b)Whether the NDIA should fund up to an additional 20 physiotherapy sessions for Ms King.
In relation to the additional physiotherapy sessions, and as mentioned above, the NDIA has indicated that it will fund fortnightly sessions for Ms King for the remaining duration of the Plan. On the Tribunal’s calculations, this is seven more sessions; plus an additional two sessions at Ms King’s home; plus an additional three sessions, however, only on condition that those sessions are used to train Ms King’s existing carers. Accordingly, the NDIA has, in effect, agreed to include another nine sessions in the Plan on an unconditional basis, meaning the parties remain in dispute about whether a further 11 physiotherapy sessions should be added into the Plan.
BACKGROUND
Ms King is a 35 year old woman who lives in public housing in Corio, Victoria with Mrs King. Ms King’s conditions are “spastic quadriplegic cerebral palsy, a mild intellectual disability and mild vision and hearing impairments”.[2] Ms King is a recipient of the disability support pension and Mrs King is a recipient of a carer’s payment. Ms King works three days per week at Karingal Kommercial, a catering company, in Geelong.[3]
[2] Refer paragraph 5 of the Applicant’s Statement of Facts, Issues and Contentions dated 5 March 2017.
[3] Ibid at paragraph 6.
Ms King’s aspirations, goals and objectives under the Plan are:
(a)To maintain and build capacity regarding her physical strength and subsequent level of independent mobility by continuing to attend the gym;
(b)To increase participation in meaningful social and community activities, independent of relying on her mother; and
(c)To maintain her current level of supported employment by having suitable supports in place.
LEGISLATIVE FRAMEWORK
Section 34(1) of the Act provides as follows:
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 community to provide;
(f)The support is most appropriately funded or provided through the National Disability Insurance Scheme (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 reasonable adjustments required under a law dealing with discrimination on the basis of disability;
(g)The support is not prescribed by the [NDIS] rules as a support that will not be funded or provided under the [NDIS];
(h)The funding of the support complies with the methods or criteria (if any) prescribed by the [NDIS] rules for deciding the reasonable and necessary supports that will be funded under the [NDIS].
Section 35 of the Act allows for NDIS rules to be prescribed establishing a method for assessing, or the criteria for deciding, the reasonable and necessary supports or general supports that will be funded or provided,[4] or for declaring particular reasonable and necessary supports or general supports to be provided or funded, either generally or for prescribed participants.[5] Rules have been prescribed and are in force, being the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Rules). The Tribunal also notes the Operational Guidelines – Planning (Chapter 10) published by the NDIA on 13 September 2016.
[4] Refer ss 35(1)(a) of the Act.
[5] Refer ss 35(1)(b) and (c) of the Act.
GYM MEMBERSHIP
Based on the NDIA’s position as set out in its letter dated 21 April 2017 (as set out at [7]), it appears to the Tribunal that the NDIA has indicated that it will amend the Plan to include the gym membership for Ms King as a reasonable and necessary support. There appears to be some confusion about the actual cost of this membership. It appears from the NDIA’s letter dated 21 April 2017 that it had understood Ms King to have sought $500 for this membership. However, it appears to the Tribunal that the cost of the membership was in fact $570 based on a letter dated 1 March 2017 sent by Ms King’s representative to the NDIA which was lodged with the Tribunal before the hearing.
Despite the apparent confusion about the precise cost of the membership fee, it appears to the Tribunal that the NDIA has recognised this support as being reasonable and necessary. Considering the recent decision of McGarrigle v National Disability Insurance Agency [2017] FCA 308[6], the Tribunal considers the cost of this support should be funded by the NDIA in full, being $570.
ADDITIONAL PHYSIOTHERAPY SESSIONS
[6] The Tribunal notes this decision in currently on appeal to the Full Court of the Federal Court of Australia.
Evidence of Ms King
Ms King provided a statement dated 2 March 2017 outlining her lived experience. Ms King stated that:
(a)She liked to knit, listening to music and going out for dinner with Mrs King;
(b)She would like to be able to do some more cooking and it is a skill she would like to build on;
(c)She found it difficult at the moment to stand on her own, doing so for too long caused her pain;
(d)She is proud that she has been able to attend primary and secondary school and that she completed one year of TAFE, although she said it was difficult for her at times;
(e)One of her biggest challenges in life is to be able to do everything she can to keep walking and not be in a wheelchair all of the time;
(f)Ms King has tried many different supports such as regular physiotherapy, hydrotherapy and exercise group, similar to walking therapy. She said they have not worked for her. Ms King said the therapy that works for her like nothing else is Bobath Physiotherapy. When Ms King started undergoing this type of therapy last year, she was able to walk around at work but now she is back in her wheelchair. She said she “hates” it, because she “feels different to everyone else”;
(g)Ms King said she felt tight all the time which meant she struggled to walk, had extreme pain and sometimes had to crawl around her home. Ms King said she wanted to walk and her goal was to stay on her feet for as long as she could.
(h)Ms King said the Bobath physiotherapy treatments and the gym made her feel good and happy. She said she was able to get out into the community and to be a part of it. Without that treatment, Ms King said her muscles tightened and she had to use her wheelchair more.
Evidence of Mrs King
Mrs King gave evidence in her statement dated 2 March 2017 (Exhibit “A2”) as to the following matters:
(a)It had been very difficult to watch her daughter get around without having the right access to gym and Bobath physiotherapy;
(b)Mrs King was getting older and it was getting more difficult to assist her daughter with her mobility – at times, she would watch her daughter crawl from one room to another;
(c)The disputed supports are one of her daughter’s individual needs and was central to her goal of continuing to walk for as long as she could;
(d)Her daughter was a different person when she accessed the gym and Bobath physiotherapy. They helped her to remain mobile and built confidence in all areas of her life.
At the hearing, Mrs King also gave oral evidence as follows:
(a)As Ms King’s primary carer, the daily routine comprised Mrs King getting her daughter up each morning and helping her to the bathroom. She said Ms King was able to shower by herself. Mrs King said she cooked all the meals and did the housework. She said she took her daughter to and from work and also took her to shopping centres.
(b)Ms King attended a public school until Grade 6 at which time she was clinically assessed. Following that assessment Ms King continued her education at Rosamond Special School until age 19, where she became more confident, made friends and her self-esteem improved. Subsequently, Ms King started studying at TAFE but this was a “nightmare” for Ms King as she could not get around and her teachers were doing her work for her. From age 21 to 28, Ms King undertook a work placement and she liked that.
(c)She said that Ms King had tried group physiotherapy. She was put into a group of 30 to 40 adults and they worked on bars practising side stepping. She also said that Ms King had tried hydrotherapy for two years while at Footscray. Neither of those treatments assisted Ms King. She observed that Ms King also started gaining weight from the medications she needed to take for her diabetes.
(d)Dr Burbridge from Williamstown referred Ms King to the St Vincent’s Clinic disability and rehabilitation unit, which is where Ms King first received Bobath physiotherapy treatment. Mrs King observed that this treatment, in conjunction with the exercises Ms King would do at the gym with a support worker, improved her mobility and helped her to walk.
(e)Mrs King said it was not an answer to train a support worker to provide Bobath therapy to Ms King instead of a physiotherapist providing that treatment. Mrs King said she was concerned about the safety aspects of this. She said that training someone else to do it was impossible as most of the support workers “would not have a clue”. Mrs King said that she would not attempt to do it herself, out of fear of causing damage.
(f)Ms King’s last physiotherapy session was around January/February 2017. Mrs King said her daughter had started to decline since that time and it had been a “complete set back”. She said Ms King is now crawling at home. Mrs King said she had to help lift Ms King at home and this was harder when she was unable to walk.
Evidence of treating physiotherapist – Kim Clatworthy
Two reports of Ms Clatworthy were tendered into evidence (Exhibit “A1”) – the first report was undated (First Report) and the second report dated 12 October 2016 (Second Report). Although the First Report was undated, the Tribunal notes that the observations recorded in it included those made at a time Ms King was receiving fortnightly Bobath physiotherapy treatment from Ms Clatworthy.
In the First Report, Ms Clatworthy stated:
(a)Ms King walked independently with two elbow crutches approximately 40m indoors and outdoors, and had a wheelchair for longer distances or when the environment put her walking at risk. Ms King could get up and down off of the floor in a set environment. The most important thing for Ms King was to maintain that level of independent mobility.
(b)In the past, when Ms King did not have access to regular therapy and gym sessions, her mobility deteriorated and she needed to rely on her wheelchair for mobility. This was not something that Ms King wanted. Ms King wanted to be able to walk at work.
(c)One of Ms King’s main physical symptoms as a result of her condition was increased muscle tightness and weakness. A combination of all these factors resulted in an effortful gait pattern and poor alignment of her joint. Specialised Neurological Physiotherapy (namely Bobath physiotherapy) worked on stretching, aligning and retraining muscles to do work at their optimum position and strength to help Ms King continue to walk safely and to be able to transfer independently.
(d)Regular gym sessions worked on strengthening and stretching Ms King’s muscles. These programs needed to be regularly monitored and changed to keep them interesting and appropriate for Ms King. Ms Clatworthy recommended four additional physiotherapy sessions (for the year) to review the gym program but said she would require more if the support workers were to change.
In the Second Report, Ms Clatworthy stated:
(a)Ms King had found that when the Bobath techniques are used on her regularly, her body moved with more ease, her tone relaxed, she stood straighter and she could walk further and for more of the day. Ms King needed regular ongoing Bobath Physiotherapy to manage her complex neurological condition.
(b)If Ms King could be maintained at her current functional level she could continue to live at home with the care of her mother.
(c)The carers who assisted Ms King during the gym sessions needed to be trained by the physiotherapist responsible, so her exercise program was complementary to her Bobath Physiotherapy.
Ms Clatworthy gave the following oral evidence at the hearing:
(a)Ms Clatworthy graduated with the Bachelor of Physiotherapy from La Trobe University in 1999 and completed a three-week Bobath course in 2002 in Melbourne. Ms Clatworthy worked overseas for two years in private practice with a Bobath trainer treating clients with neurological conditions. Upon her return to Australia completed a Bobath course with one week of training at Sunshine Hospital. Ms Clatworthy does not practice exclusively using Bobath techniques.
(b)Ms Clatworthy started treating Ms King in April 2016. From April to August 2016 she treated her using Bobath techniques once a fortnight but the sessions dropped back to once a month from September 2016 to January 2017 as the plan dropped back. By October 2016, the only reason Ms King was walking was on account of her hard work and determination.
(c)Ms Clatworthy’s physiotherapy plan with Ms King was hands on and involved teaching her ways to move which were more efficient. Ms Clatworthy did this by placing her hands on Ms King’s body and limbs to physically show her how to move. This provided sensory input to Ms King and assisted her to become more upright.
(d)The relationship with the physiotherapy treatment and the gym was important as it ensured that Ms King was maintaining her muscle strength and cardiovascular fitness and it was important to train the carers to monitor Ms King to ensure she was completing the exercises as best as she could. The carers had a role in setting up the equipment for her to use and to help her on and off the equipment. They also assisted in providing motivation to Ms King.
(e)Ms Clatworthy described the benefits to Ms King, in additional to those set out above in paragraph [20](a), as follows:
(i)Ms King was able to get up out of the couch and in and out of her bed on her own.
(ii)No reports of Ms King crawling;
(iii)Ms King was observed to be walking more upright.
(f)However, by the time Ms Clatworthy saw Ms King again in February 2017, Ms King was more bent over, had difficulty lifting her feet or stepping her feet through, was physically exhausted from doing a 10m-walk to the kitchen, looked more fatigued, was no longer walking at work and was using the wheelchair.
(g)Ms Clatworthy recommended 30 sessions of physiotherapy per year – once a fortnight with Ms King at her home (equates to 26 per year) and the sessions with the carers in relation to the exercise program to be undertaken at the gym (equates to 4 per year). The program needed to be tailored to her movement patterns.
(h)The fee for providing a Bobath physiotherapy session was $175 per hour.
(i)Ms Clatworthy gave evidence that she had previously worked with therapy assistants and that she did not think they could implement the Bobath therapy through their hands in the same way that a trained physiotherapist could. She said there would be risks involved, namely, if someone were to move Ms King in the wrong way.
After the hearing, Ms Clatworthy provided a further report to the Tribunal dated 5 April 2017 stating as follows:
…I remain of the view that fortnightly sessions of Specialised Neurological Physiotherapy with Ms King is essential in helping her maintain her function and continue to meet her goals of being able to walk.
In addition to this fortnightly Physiotherapy until the end of her plan Ms King will require 3 sessions for training carers at the gym (she has used one session since August 2016 and has had a change of carer’s since then), and another 2 sessions at home to give a month of more intensive Physiotherapy to bring her function back to where it was prior to the deterioration.
Ms Clatworthy struck the Tribunal as a credible and knowledgeable physiotherapist. The Tribunal accepted the evidence given by Ms Clatworthy as set out in the above paragraphs [20] to [23].
No evidence was tendered by the NDIA from any health practitioners or other experts to contradict the evidence of Ms Clatworthy or the benefits of such treatment as experienced by Ms King and as observed by Mrs King.
CONSIDERATION
The Tribunal considers that the physiotherapy treatment, as currently recommended by Ms Clatworthy in letter dated 5 April 2017, comprised a reasonable and necessary support within the meaning of s 34 of the Act in consideration of the following factors:
(a)The physiotherapy treatment, as recommended by Ms Clatworthy, would assist Ms King to pursue the goals, objectives and aspirations included in her statement of goals and aspirations by improving her mobility. On the evidence, it was clear this had been demonstrated by previous instances of Ms King having received this specialised treatment and also on account of the expert evidence given by Ms Clatworthy;[7]
(b)By improving Ms King’s mobility as it had in the past, the Tribunal is satisfied that the physiotherapy treatment in conjunction with the assisted gym sessions would help Ms King to undertake activities. It would facilitate her social and economic participation, for instance, by allowing her to remain motivated and content to continue working as she does at Karingal Kommercial and also by having the confidence and purpose to continue attending at the gym which, on the evidence, had been a good social outlet for her;[8]
(c)The Tribunal is satisfied that the treatment represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative supports. By the end of the hearing, the NDIA did not press ahead with its initial contention[9] that it would be more cost-effective if an alternative (lesser skilled and therefore, less expensive) service provider should be trained up to provide the same Bobath treatment to Ms King (referred to as a delegated therapy model). However, the NDIA did raise an objection after the hearing about particular physiotherapy sessions being used to train replacement carers (as distinct from existing carers) to assist Ms King with a continuing exercise program at the gym, as it considered that it was the responsibility of the service provider to meet those costs when there was a change of carer. The Tribunal considers this to be a matter for the NDIA to take up with those service providers.
(d)Ms Clatworthy has recommended a further three additional sessions for Ms King to ensure that the present carers, whoever they are, may be sufficiently trained to assist Ms King with the exercise program to be reinstated for Ms King from now until the end of the Plan. The Tribunal does not consider this to be excessive and regards three sessions between now and the end of the Plan for this purpose as a necessary and reasonable support. It will allow one session forthwith to set up and reinstate the program; one to undertake an interim review in the next few months; and one to assess the program at the end of the Plan or alternatively to modify it between now and then if required;[10]
(e)The physiotherapy treatment as recommended by Ms Clatworthy has been effective and beneficial for Ms King, having regard to current good practice. It appears to the Tribunal from the evidence of Ms Clatworthy that the Bobath techniques have been practised for some time, dating back to at least 2002 when Ms Clatworthy first undertook a Bobath course, and are practised broadly including overseas. The Tribunal also notes that the prominence of Bobath techniques is such that it had been adopted by St Vincent’s Hospital as mentioned above and used specifically for persons with cerebral palsy. The previous benefits experienced by Ms King in 2016 and January 2017, also satisfy the Tribunal that this treatment has been effective and beneficial for her;[11]
(f)The funding or provision of the physiotherapy treatment as recommended by Ms Clatworthy takes account what it is reasonable to expect of families, carers, informal networks and the community to provide. The Tribunal notes that this is a support that is unable to be provided to Ms King by her carers, Mrs King or others in the community. The Tribunal accepts Ms Clatworthy’s evidence that professional skill and care of a physiotherapist is required to be exercised in order to deliver the hands-on Bobath treatment safely and effectively to Ms King. This is not a support that others can safely provide.
(g)The Tribunal also notes the limited income available to Mrs King, being on a pension and living in public housing, to otherwise fund this support on a personal basis. The Tribunal takes into account the age of Mrs King (being in her 60’s) and the corresponding increasing limitation upon her capacity to be able to physically support Ms King as her mobility deteriorates in the absence of being provided with such treatments, in addition to the likely negative impact on Mrs King’s wellbeing if she is required to do so. The Tribunal recognises that Ms King’s mobility may decline to a level where Mrs King is no longer able to support her in the home environment meaning that Ms King would need to move to special accommodation with the costs associated with that. If Ms King is required to rely on Mrs King to fund these treatments it will reduce Ms King’s level of independence and if the treatments are not provided, it will be cause her level of mobility to deteriorate as has been shown from past experience also reducing her degree of physical independence;[12]
(h)The physiotherapy treatment 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. By the end of the hearing, the NDIA itself had accepted that this type of treatment should be provided as a support to Ms King under the NDIS, save that it considered the level of this particular support (or funding for it) should be less than the level as contended for by Ms King;[13]
(i)By the end of the hearing, it was also was not contended by the NDIA that the physiotherapy treatment as recommended by Ms Clatworthy was prescribed by the Rules as a support that would not be funded or provided under the NDIS. Regardless of this, it was clear from the evidence that the recommended physiotherapy treatment was directly related to Ms King’s functional impairment as described by Mrs King and Ms Clatworthy and integrally linked to Ms King’s care and support she required to live in the community and to participate in her current employment. Mobility is essential to her quality of life in the home and in her place of work and the physiotherapy treatment is directly designed to improve and optimise her mobility as much as possible. For this reason, the Tribunal considers that this support falls into Rule 7.4 rather than Rule 7.5 of the Rules and consistent with those rules, this support as recommended by Ms Clatworthy on 5 April 2017 should be included the Plan.[14]
[7] Refer s 34(1)(a) of the Act.
[8] Refer s 34(1)(b) of the Act.
[9] Refer paragraph [22] of the Respondent’s Statement of Issues, Facts and Contentions dated 21 March 2017.
[10] Refer s 34(1)(c) of the Act and Rule 3.1 of the Rules.
[11] Refer s 34(1)(d) of the Act.
[12] Refer s 34(1)(e) of the Act and Rule 3.4 of the Rules.
[13] Refer s 34(1)(f) of the Act
[14] Refer s 34(1)(g) and (h) of the Act.
The Tribunal is also satisfied that Ms King has been cognisant of the financial sustainability of the NDIS. In an earlier attempt to resolve this matter, Ms King made an open offer to reduce some other supports under the Plan which, if they were accepted (which they were not), would have resulted in a net saving for the NDIA. It is also noted that the NDIA did not contend that the individual session fee for Ms Clatworthy was excessive and as mentioned above, by the end of the hearing, the NDIA did not press its earlier contention that the Bobath treatments could be delivered by a lesser skilled and lower paid support person under a delegated model, once it heard the evidence of Ms Clatworthy about the risks involved in doing so. Finally, there was no financial evidence or financial projections tendered by the NDIA which would have allowed the Tribunal to consider this factor in a meaningful way. [15]
[15] Refer s 3(3)(b) of the Act.
CONCLUSION
For the reasons set out above, the Tribunal considers that the gym membership and the physiotherapy as recommend by Ms Clatworthy in her letter dated 5 April 2017 are reasonable and necessary supports under s 34 of the Act. The decision under review is set aside and in substitution the Tribunal approves the amendment of the Plan to include the following supports:
(a)An annual gym membership for Ms King ($570);
(b)Fortnightly physiotherapy sessions ($175 per hourly session) for the remaining duration of the Plan; and
(i)An additional five physiotherapy sessions ($175 per hourly session) to be taken at any time, comprising:
(ii)Three physiotherapy sessions for the purpose of training Ms King’s carers how to assist Ms King when she is at the gym to undertake an exercise program as recommended by Ms King’s physiotherapist; and
(iii)Two physiotherapist sessions at Ms King’s home in addition to all of the above physiotherapy sessions referred to above.
29. I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Kim Parker, Member
…..…...................[sgd]................................
Associate
Dated 4 May 2017
Date of interlocutory hearing 27 March 2017 Advocates for the Applicant Ms Katy Woods,
Victorian Legal AidMs Nicole James,
Rights, Information & Advocacy CentreAdvocate for the Respondent Mr Adrian Pascale,
National Disability Insurance Agency
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Expert Evidence
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