FEDERAL COURT OF AUSTRALIA
Klewer v National Disability Insurance Agency [2023] FCA 630
Appeal from: Klewer and National Disability Insurance Agency [2022] AATA 566 (30 March 2022) File number: NSD 298 of 2022 Judgment of: RAPER J Date of judgment: 15 June 2023 Catchwords: ADMINISTRATIVE LAW – appeal from a decision of the Administrative Appeals Tribunal to affirm the respondent’s decision to not provide overnight care (provided by the appellant’s mother) to the appellant under the National Disability Insurance Scheme – whether the Tribunal erred by taking into account irrelevant considerations, denied the appellant procedural fairness in a number of respects, or applied the wrong legal test – whether the Tribunal erred in determining whether overnight care was a reasonable and necessary support at the time of its review as opposed to during the period of the applicable plan which was the subject of the initial reviewable decision – effect of variation and remittal – appeal allowed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 26(1)(b), 42D, 42D(1), 42D(2), 42D(3)(a), 42D(4)(a), 42D(5), 42D(6), 44, 44(1)
National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth)
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4(3), 9, 31(a), 31(b), 31(c), 34(e), 31(f), 31(g), 31(i), 31(j), 32, 32(1), 33, 33(2), 33(2)(a), 33(2)(b), 33(2)(c), 33(3), 33(5)(b), 33(5)(f), 34, 34(1), 34(1)(a), 34(1)(b), 34(1)(c), 34(1)(d), 34(1)(f), 37, 37(1), 37(1)(b), 37(3)(a), 44, 47, 47(2), 48, 49, 99, 100, 100(6), 101, 103(2), 103(2)(d), 103(2)(e)
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth)
Cases cited: ARK16 v Minister for Immigration and Border Protection [2018] FCA 825
BZW16 v Minister for Immigration and Border Protection [2019] FCA 395
CMA19 v Minister for Home Affairs [2020] FCA 736
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576
Committee of Direction of Fruit Marketing v Australian Postal Commission (1980) 144 CLR 577
Commonwealth v Ford (1986) 65 ALR 323
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; 266 CLR 250
Grain Elevators Board (Victoria) v Shire of Dunmunkle (1946) 73 CLR 70
Klewer and National Disability Insurance Agency [2022] AATA 566
Kowalski v Repatriation Commission [2009] FCAFC 107; 259 ALR 444
Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; 85 NSWLR 86
McGarrigle v National Disability Insurance Agency [2017] FCA 308; 252 FCR 121
Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590
Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398
National Disability Insurance Agency v KKTB, by her litigation representative CVY22 [2022] FCAFC 181
National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415
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- AGLC
- Klewer v National Disability Insurance Agency [2023] FCA 630
- Case
- [2023] FCA 630
- Decision Date
CaseChat Overview and Summary
The case of Klewer v National Disability Insurance Agency involved an appeal by the applicant, Mr Klewer, against a decision of the Administrative Appeals Tribunal (AAT) that affirmed a decision by the respondent, the National Disability Insurance Agency (NDIA), not to provide overnight care to Mr Klewer under the National Disability Insurance Scheme (NDIS). The applicant contested the Tribunal's decision, arguing that it had erred in various respects, including by taking into account irrelevant considerations, denying him procedural fairness, and applying the wrong legal test. The applicant further argued that the Tribunal had erred in determining whether overnight care was a reasonable and necessary support at the time of its review, rather than during the period of the applicable plan, which was the subject of the initial reviewable decision.
The central issue before the court was whether the Tribunal had erred in its decision to affirm the NDIA's decision not to provide overnight care to Mr Klewer under the NDIS. The court considered the applicant's arguments regarding the Tribunal's consideration of irrelevant factors, denial of procedural fairness, and application of the wrong legal test. Additionally, the court examined the applicant's argument that the Tribunal had erred in determining whether overnight care was a reasonable and necessary support at the time of its review, rather than during the period of the applicable plan.
The court found that the second ground of appeal was made out, leading to the conclusion that the appeal should be allowed. The court found that the Tribunal had erred in its consideration of the applicant's wishes regarding overnight care and had failed to give proper weight to the evidence provided by Dr Ashkar regarding the applicant's lack of self-efficacy and the impact of the mother's dominance and control on the applicant's independence. Furthermore, the court found that the Tribunal had not adequately considered the impact of the mother's care on the applicant's stress levels and anxiety, which in turn affected his seizures.
Based on these findings, the court determined that the appeal should be allowed, the decision of the AAT should be set aside, and the matter should be remitted to the Tribunal for determination according to law. Additionally, the respondent was ordered to pay the applicant's costs as agreed or assessed.
The central issue before the court was whether the Tribunal had erred in its decision to affirm the NDIA's decision not to provide overnight care to Mr Klewer under the NDIS. The court considered the applicant's arguments regarding the Tribunal's consideration of irrelevant factors, denial of procedural fairness, and application of the wrong legal test. Additionally, the court examined the applicant's argument that the Tribunal had erred in determining whether overnight care was a reasonable and necessary support at the time of its review, rather than during the period of the applicable plan.
The court found that the second ground of appeal was made out, leading to the conclusion that the appeal should be allowed. The court found that the Tribunal had erred in its consideration of the applicant's wishes regarding overnight care and had failed to give proper weight to the evidence provided by Dr Ashkar regarding the applicant's lack of self-efficacy and the impact of the mother's dominance and control on the applicant's independence. Furthermore, the court found that the Tribunal had not adequately considered the impact of the mother's care on the applicant's stress levels and anxiety, which in turn affected his seizures.
Based on these findings, the court determined that the appeal should be allowed, the decision of the AAT should be set aside, and the matter should be remitted to the Tribunal for determination according to law. Additionally, the respondent was ordered to pay the applicant's costs as agreed or assessed.
Orders
Orders of the court
1. The appeal be allowed.
2. The decision of the Administrative Appeals Tribunal be set aside.
3. The matter be remitted to the Tribunal for determination according to law.
4. The respondent pay the applicant’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the following reasons, I have determined to allow the appeal on the basis that the second ground is made out. Background Relevant to this appeal is Mr Klewer’s NDIS plan which commenced on 31 May 2018. Mr Klewer submitted a “Plan Review Request Form” dated 13 July 2018, which would require a delegate of the CEO of the NDIA to re-assess Mr Klewer’s NDIS plan. Mr Klewer requested that his NDIS plan be varied such that (1) his plan can be self-managed, and (2) extra funding be provided so that Ms Klewer (as opposed to a support worker) can provide overnight care support to Mr Klewer (the internal review request). On 23 July 2018, a response to the internal review request was provided, in which the NDIA affirmed the original NDIS plan under s 100 of the NDIS Act (internal review decision). The delegate was “not satisfied that self-management poses no risk” to Mr Klewer, noting the requirement that a participant should not self-manage a plan where the CEO is satisfied that self-management would present an unreasonable risk to the NDIS participant (pursuant to s 44 of the NDIS Act and the National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth)). The delegate also appears to not have been satisfied that the additional requested supports were consistent with the criteria contained within s 34 of the NDIS Act. Also on 23 July 2018, Mr Klewer lodged an application for review of the delegate’s decision before the Tribunal. Mr Klewer described his perceived errors in the delegate’s decision as follows:1. The decision to refuse me to self-manage my NDIS plan is wrong because there was enough evidence to support that we [my nominee], can perfectly manage the plan. I need an urgent hearing for this as at the moment my NDIS Plan is dormant and service providers who provided services per plan need to get paid.2. The decision to refuse NDIS payment for certain services by way of Family Support, dlivered [sic] by my nominee mother was wrong as there was sufficeint [sic] evidence toward the required criteria regarding the Exceptional Circumstances case and further evidence was ignored and requests to acknowledge such further evidence were also not responded to. Overview of the legislation There are two legislative schemes relevant to this appeal: first, the NDIS Act and, secondly, the AAT Act. The parties agreed that the applicable compilations of both the NDIS Act and the AAT Act were those in force at the time of the Tribunal’s decision on 30 March 2022. With respect to the NDIS Act, s 3 sets out the objects of the NDIS Act, and s 4 identifies the general principles that guide actions taken under the NDIS Act. Both provisions are extracted as follows: 3 Objects of Act (1) The objects of this Act are to:(a) in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and (b) provide for the National Disability Insurance Scheme in Australia; and (c) support the independence and social and economic participation of people with disability; and (d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and (e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and (f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and (g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and (ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and (h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability; and (i) in conjunction with other laws, give effect to certain obligations that Australia has as a party to:(i) the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23); and (ii) the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5); and (iii) the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4); and (iv) the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9); and (v) the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40).Note: In 2013, the text of a Convention or Covenant in the Australian Treaty Series was accessible through the Australian Treaties Library on the website ( These objects are to be achieved by:(a) providing the foundation for governments to work together to develop and implement the National Disability Insurance Scheme launch; and (b) adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability; and (c) establishing a national regulatory framework for persons and entities who provide supports and services to people with disability, including certain supports and services provided outside the National Disability Insurance Scheme.(3) In giving effect to the objects of the Act, regard is to be had to:(a) the progressive implementation of the National Disability Insurance Scheme; and (b) the need to ensure the financial sustainability of the National Disability Insurance Scheme; and (c) the broad context of disability reform provided for in:(i) the National Disability Strategy 2010-2020 as endorsed by COAG on 13 February 2011; and (ii) the Carer Recognition Act 2010; and (d) the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.4 General principles guiding actions under this Act (1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.(2) People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.(3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.(6) People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation.(7) People with disability have the same right as other members of Australian society to pursue any grievance.(8) People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.(9) People with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.(10) People with disability should have their privacy and dignity respected.(11) Reasonable and necessary supports for people with disability should:(a) support people with disability to pursue their goals and maximise their independence; and (b) support people with disability to live independently and to be included in the community as fully participating citizens; and (c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.(12) The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.(13) The role of advocacy in representing the interests of people with disability is to be acknowledged and respected, recognising that advocacy supports people with disability by:(a) promoting their independence and social and economic participation; and (b) promoting choice and control in the pursuit of their goals and the planning and delivery of their supports; and (c) maximising independent lifestyles of people with disability and their full inclusion in the community.(14) People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme. (15) Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.(16) Positive personal and social development of people with disability, including children and young people, is to be promoted.(17) It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:(a) the progressive implementation of the National Disability Insurance Scheme; and (b) the need to ensure the financial sustainability of the National Disability Insurance Scheme.
Evidence
Evidence Before The Court
The Tribunal was therefore able to rely upon Dr Ashkar’s report for the purposes of determining whether this requested support was reasonable and necessary.Ground 2: Procedural fairness – Mr Klewer not giving evidence By ground 2, Mr Klewer submits that the Tribunal failed to afford him procedural fairness by concluding that it doubted the genuineness of Mr Klewer’s “consistently expressed views” that he wanted Ms Klewer to be his overnight carer when he did not give evidence before the Tribunal. At T[151] and [166], the Tribunal found that Ms Klewer being Mr Klewer’s overnight carer would not be in his interests:151. As to Ms Klewer’s submission that Mr Klewer’s wishes should be respected, I acknowledge that Mr Klewer has consistently expressed the view that he wants Ms Klewer and no one else to be his night time carer to the Tribunal in his statement and to a range of practitioners including Mr Lucas, Dr Ashkar, Dr Wong, Dr Choi and Ms Evans. He has however also expressed to Dr Spira that his ‘mother pissed him off sometimes’. I find that, based on the evidence of Dr Ashkar regarding Mr Klewer’s lack of self efficacy, and the ‘dominance and control’ exercised by Ms Klewer over him, I cannot be satisfied as to the extent to which this view is one genuinely held by Mr Klewer, rather than one imposed upon him by Ms Klewer. I accept, based on the Respondent’s submission regarding that one of the core principles which underpins the NDIS is enhancing a participant’s sense of independence and Mr Klewer’s stated goal ‘to be as independent as I am able in all daily living tasks’, and the evidence regarding independence which has already been canvassed, that in this case, Mr Klewer’s wishes are best served by developing independence. If necessary, this can be achieved by the use of a low-cost assistive technology alternative.…166. With respect to Mr Klewer’s submissions I make the following observations. There is no independent evidence regarding the cultural considerations Ms Klewer raises. There is no objective evidence that Mr Klewer would be at risk of harm or neglect if not attended by Ms Klewer overnight – if overnight care were necessary, which I have found it is not. Ms Klewer’s other submissions regarding ‘exceptional circumstances’ are already dealt with in the reasons above – that, should overnight monitoring be required, Mr Klewer’s privacy and dignity can be preserved by the use of assistive technology. Based on the findings set out in paragraphs [136] and [137], I am not satisfied that Ms Klewer provides the best care for Mr Klewer, in terms of the impact she has upon his stress. I am also not satisfied as to the extent to which the ‘strong pFersonal views’ [sic] he expresses are genuinely his, particularly in view of the evidence of Dr Ashkar regarding Ms Klewer’s dominance and control and the evidence of Dr Spira as to Mr Klewer’s remarks to him regarding Ms Klewer. I am unable to be satisfied as to Mr Klewer’s vulnerability on the basis of the evidence before me. I accept that Mr Klewer feels safe and comfortable with Ms Klewer, but as set out above, do not accept that that is consistent with Mr Klewer’s goals of independence and to live a healthy and supported life, particularly in terms of his psychological health. I also observe that many of the matters raised by Ms Klewer as amounting to exceptional circumstances are issues regularly, routinely, or normally encountered with respect to the provision of supports for participants in the NDIS, and thus are not within the circumstances contemplated in the cases referred to above.(Footnotes omitted.)
Decision
Reasons for decision
On 23 July 2018, a response to the internal review request was provided, in which the NDIA affirmed the original NDIS plan under s 100 of the NDIS Act (internal review decision). The delegate was “not satisfied that self-management poses no risk” to Mr Klewer, noting the requirement that a participant should not self-manage a plan where the CEO is satisfied that self-management would present an unreasonable risk to the NDIS participant (pursuant to s 44 of the NDIS Act and the National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth)). The delegate also appears to not have been satisfied that the additional requested supports were consistent with the criteria contained within s 34 of the NDIS Act. Also on 23 July 2018, Mr Klewer lodged an application for review of the delegate’s decision before the Tribunal. Mr Klewer described his perceived errors in the delegate’s decision as follows:1. The decision to refuse me to self-manage my NDIS plan is wrong because there was enough evidence to support that we [my nominee], can perfectly manage the plan. I need an urgent hearing for this as at the moment my NDIS Plan is dormant and service providers who provided services per plan need to get paid.2. The decision to refuse NDIS payment for certain services by way of Family Support, dlivered [sic] by my nominee mother was wrong as there was sufficeint [sic] evidence toward the required criteria regarding the Exceptional Circumstances case and further evidence was ignored and requests to acknowledge such further evidence were also not responded to. Overview of the legislation There are two legislative schemes relevant to this appeal: first, the NDIS Act and, secondly, the AAT Act. The parties agreed that the applicable compilations of both the NDIS Act and the AAT Act were those in force at the time of the Tribunal’s decision on 30 March 2022. With respect to the NDIS Act, s 3 sets out the objects of the NDIS Act, and s 4 identifies the general principles that guide actions taken under the NDIS Act. Both provisions are extracted as follows: 3 Objects of Act (1) The objects of this Act are to:(a) in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and (b) provide for the National Disability Insurance Scheme in Australia; and (c) support the independence and social and economic participation of people with disability; and (d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and (e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and (f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and (g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and (ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and (h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability; and (i) in conjunction with other laws, give effect to certain obligations that Australia has as a party to:(i) the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23); and (ii) the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5); and (iii) the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4); and (iv) the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9); and (v) the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40).Note: In 2013, the text of a Convention or Covenant in the Australian Treaty Series was accessible through the Australian Treaties Library on the website ( These objects are to be achieved by:(a) providing the foundation for governments to work together to develop and implement the National Disability Insurance Scheme launch; and (b) adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability; and (c) establishing a national regulatory framework for persons and entities who provide supports and services to people with disability, including certain supports and services provided outside the National Disability Insurance Scheme.(3) In giving effect to the objects of the Act, regard is to be had to:(a) the progressive implementation of the National Disability Insurance Scheme; and (b) the need to ensure the financial sustainability of the National Disability Insurance Scheme; and (c) the broad context of disability reform provided for in:(i) the National Disability Strategy 2010-2020 as endorsed by COAG on 13 February 2011; and (ii) the Carer Recognition Act 2010; and (d) the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.4 General principles guiding actions under this Act (1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.(2) People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.(3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.(6) People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation.(7) People with disability have the same right as other members of Australian society to pursue any grievance.(8) People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.(9) People with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.(10) People with disability should have their privacy and dignity respected.(11) Reasonable and necessary supports for people with disability should:(a) support people with disability to pursue their goals and maximise their independence; and (b) support people with disability to live independently and to be included in the community as fully participating citizens; and (c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.(12) The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.(13) The role of advocacy in representing the interests of people with disability is to be acknowledged and respected, recognising that advocacy supports people with disability by:(a) promoting their independence and social and economic participation; and (b) promoting choice and control in the pursuit of their goals and the planning and delivery of their supports; and (c) maximising independent lifestyles of people with disability and their full inclusion in the community.(14) People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme. (15) Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.(16) Positive personal and social development of people with disability, including children and young people, is to be promoted.(17) It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:(a) the progressive implementation of the National Disability Insurance Scheme; and (b) the need to ensure the financial sustainability of the National Disability Insurance Scheme.
Ratio Decidendi
Legal Principle Established
The Tribunal then made findings regarding whether the requested support satisfied the criteria in s 34(1) of the NDIS Act. Section 34(1)(a): Whether the support will assist Mr Klewer to pursue the goals, objectives and aspirations included in his statement of goals and aspirations With respect to s 34(1)(a), Mr Klewer’s goals included the following (at T[129]): •I would like to learn daily living skills and be as independent as I am able in all daily living tasks •I would like to be more social and build relationships with people in my community. •I would like to access the therapies and equipment that I need so that I can live a healthy and supported life. •I would like to reduce my seizures and live functionally without epilepsy.•I would like to live a safe and healthy life where my health is managed properly. The Tribunal did not consider that Ms Klewer’s evidence regarding independence was consistent with Mr Klewer’s goals. The Tribunal, amongst other evidence, accepted Dr Ashkar’s findings regarding “the importance of Mr Klewer developing independence and the barriers in that regard presented by Ms Klewer”: at T[130]. With respect to Mr Klewer’s goal to reduce his seizures, the Tribunal noted that the evidence from Mr and Ms Klewer suggested that stress and anxiety contribute to Mr Klewer’s seizures. The Tribunal noted Dr Spira’s report as follows (at T[133]): Dr Spira’s report dated 12 October 2017 includes that Mr Klewer stated that ‘stress is an important trigger to the turns’, and that when asked by Dr Spira to specify what he meant by that Mr Klewer responded, ‘my mother pisses me off sometimes’. Dr Spira went on to report that ‘it appears that when he is angry, he suffers the episode [sic] and [Mr Klewer] stresses his heart races on each occasion’.(Footnotes omitted.) The Tribunal again considered the evidence of Dr Ashkar in considering whether the requested support would help reduce Mr Klewer’s seizures:135. Dr Ashkar considers that Mr Klewer’s ‘anxiety in relation to his seizures is closely tied to his very limited sense of self-efficacy’, and that ‘increasing his sense of self efficacy will be an important focus of his psychological treatment in helping to manage his anxiety’. Dr Ashkar links Ms Klewer’s ‘dominance and control’ of [Mr Klewer’s] care needs to a diminution of his sense of self efficacy ‘and ultimately his dignity by compromising his independence’ and considers that this will have serious implications for his psychological health into the future if not addressed today. Mr Lucas also relates Mr Klewer’s anxiety at least in part to Ms Klewer’s actions, for example that some of Ms Klewer’s expressed concerns tend to provide reinforcement for Mr Klewer’s generalised anxiety disorder and his hypervigilance and Ms Klewer’s ‘regular debriefing of these struggles with [Mr Klewer] does tend to add to his fears about the world and to his anxiety levels…’ Mr Lucas also refers to Ms Klewer’s dominant parenting style. Overall Mr Lucas’s evidence is inconsistent, as in contrast to the aforementioned he agreed in oral evidence with Ms Klewer that the care she provides reduces Mr Klewer’s anxiety, which in turn reduces the incidence of seizures, thus minimising risks of injury and to Mr Klewer’s general health.136. In this instance I place greater weight upon the evidence of Dr Ashkar than that of Mr Lucas notwithstanding that Ms Klewer considered that Dr Ashkar was not independent, and that Mr Klewer had been referred to Dr Ashkar as an expert in determining whether someone was ‘faking’. Mr Lucas gave inconsistent evidence and appeared to be impressionable to suggestions by Ms Klewer. Dr Ashkar gave consistent evidence and impressed as a reliable, objective and considered witness. (Footnotes omitted.)