Klewer and National Disability Insurance Agency

This matter concerned an appeal by Mr Klewer against a decision of the National Disability Insurance Agency (NDIA) regarding the provision of overnight care. Mr Klewer sought funding for his mother to provide 10 hours of overnight care per night, seven days a week. The dispute centred on whether this level of support was reasonable and necessary under section 34 of the National Disability Insurance Scheme Act 2013 (Cth), and if so, whether the NDIA should fund his mother to provide it. The case was heard by Deputy F Meagher P.

The primary legal issues before the court were whether the requested overnight care was reasonable and necessary for Mr Klewer, and if so, whether his mother was the appropriate person to provide this funded support. The NDIA contended that there was insufficient objective evidence to satisfy the criteria for reasonable and necessary supports, particularly concerning the nature and frequency of Mr Klewer’s seizures. The NDIA also argued that the exceptional circumstances required for a family member to be funded for providing support were not met, and that alternative solutions like passive monitoring could address Mr Klewer’s concerns about privacy and safety.

The court found that Mr Klewer had not demonstrated that he required overnight care, nor that such care would assist him in pursuing his plan goals, facilitating social and economic participation, or represent value for money. The court was not satisfied that the proposed support was likely to be effective and beneficial, nor that it was most appropriately funded by the NDIS. Furthermore, the court noted a lack of independent evidence regarding cultural considerations and expressed doubts about the genuineness of Mr Klewer’s strong personal views, particularly in light of evidence suggesting his mother's dominance. The court also observed that many of the issues raised by Mr Klewer were not exceptional circumstances but rather common challenges in NDIS support provision.

Consequently, the Tribunal affirmed the NDIA's decision under review, finding that the applicant had not met the threshold for requiring the requested overnight care support.