KLMN and National Disability Insurance Agency

KLMN and National Disability Insurance Agency [2017] AATA 1814 (20 October 2017)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2016/1118
Re:KLMN
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Regina Perton, Member
Date:20 October 2017
Place:Melbourne

The Tribunal sets aside the decision concerning transport assistance and substitutes a decision that KLMN is eligible for Level 3 assistance of $3456.00.
The Tribunal affirms the other decisions under review.
[sgd]........................................................................
Regina Perton, Member
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – home security – air conditioning – rental property – additional travel support – whether value for money – whether likely to be effective and beneficial – economic participation – whether all criteria in s 34(1) met
Legislation
National Disability Insurance Scheme Act 2013 ss 3, 4, 33, 34, 209
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v McGarrigle [2017] FCAFC 132
Secondary Materials
National Disability Insurance Scheme (Supports for Participants) Rules 2013
Operational Guidelines of the National Disability Insurance Agency
Convention on the Rights of Persons with Disabilities
REASONS FOR DECISION
Regina Perton, Member
20 October 2017

The applicant in these proceedings is known by the pseudonym KLMN. KLMN sought confidentiality as to her identity, to which the National Disability Insurance Agency (NDIA) did not object. The result of the subsequent confidentiality order is that these reasons are necessarily vague about some details of KLMN’s activities.
Aged in her fifties, KLMN is a participant in the National Disability Insurance Scheme (NDIS). KLMN suffers from vision problems brought on by a physical condition. KLMN also suffers from other physical limitations and a psychiatric condition. She has a participant plan in place approved by the NDIA which commenced in May 2015 and was extended to September 2016. KLMN is now covered by a fresh participant plan.
KLMN’s participant plan sets out her goals and aspirations and contains a list of participant supports that the NDIA agreed to fund. These include some transport support, personal assistance with shopping and participation in community activities and some coordination support. However, some of the supports KLMN sought were refused by the NDIA. The refused supports include:
·additional transport support to enable her to participate in a greater range of activities and generate additional income above the disability support pension on which she relies, and an updated phone;
·enhanced security measures in the property in which she lives, including the repairing of a fence and the installation of locks in certain parts of her rental premises;
·air conditioning to help ameliorate symptoms arising from a condition of KLMN’s;
·special lenses needed because of the nature of her visual problems, however these are considered in a separate application (2016/3517) at her request.
KLMN sought reconsideration by the NDIA of the decision to refuse the additional supports and on 9 February 2016 an authorised delegate advised KLMN that the agency was affirming its original decision. On 3 March 2016 KLMN lodged an application for review with the Tribunal.
After lodgement of the application with the Tribunal, there were further discussions between KLMN’s legal representatives and the NDIA which resulted in the funding of some of the items originally refused. These included a mobile phone with particular characteristics in relation to KLMN’s eyesight problems and an increase in the level of transport assistance.
Following a hearing in November 2016, the matter was adjourned with the consent of both parties to await the decision in McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle) which was heard by the Federal Court in December 2016 and handed down on 28 March 2017. The NDIA appealed the McGarrigle decision and the Full Federal Court on 21 August 2017 affirmed the McGarrigle decision (National Disability Insurance Agency v McGarrigle [2017] FCAFC 132). The case will be reheard by the Tribunal in due course.
The Tribunal notes that the participant plan that resulted in the issues raised with the Tribunal expired in September 2016. Nevertheless, KLMN wishes to continue with the review on the basis that the Tribunal’s findings may assist with future plans in the case of some of the supports and/or seek reimbursement if her discretionary expenditure exceeded that which was allowed for in the plan under review. KLMN is able to raise matters in relation to her current and subsequent plans regardless of the Tribunal’s findings in this matter and as her own situation and requirements change.
RELEVANT LEGISLATION/GUIDELINES
Section 3(1) sets out the objects of the National Disability Insurance Scheme Act 2013 (the Act). As well as giving effect to various international covenants and treaties to which Australia is a signatory, including the Convention on the Rights of Persons with Disabilities, the Act’s objects are wide ranging and include:
…
(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;…
…
Section 33 of the Act sets out what a plan must include:
(1) A participant’s plan must include a statement (the participant’s statement of goals and aspirations) prepared by the participant that specifies:
(a)the goals, objectives and aspirations of the participant; and
(b)the environmental and personal context of the participant’s living, including the participant’s:
(i) living arrangements; and
(ii) informal community supports and other community supports; and
(iii) social and economic participation.
(2) A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a)the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c)the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d)the management of the funding for supports under the plan (see also Division 3); and
(e)the management of other aspects of the plan.
(3) The supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise.
…
(5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a)have regard to the participant’s statement of goals and aspirations; and
(b)have regard to relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f)have regard to the operation and effectiveness of any previous plans of the participant.
…
Section 34 sets out the criteria for the term reasonable and necessary supports:
(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.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
Section 209 of the Act allows the relevant Minister to make rules by legislative instrument to give effect to the Act. The Minister has made a number of such rules with the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Rules) being pertinent when it comes to sections 33 and 34 of the Act. In determining value for money, Part 3 states:
3.1     In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a)whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(c)whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d)for supports that involve the provision of equipment or modifications:
(i)     the comparative cost of purchasing or leasing the equipment or modifications; and
(ii)    whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e)whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f)whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
Effective and beneficial and current good practice
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a)published and refereed literature and any consensus of expert opinion;
(b)the lived experience of the participant or their carers; or
(c)anything the Agency has learnt through delivery of the NDIS.
3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
Part 5 sets out what will be funded and what will not be:
5.1 A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a)additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b)costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
Supports that will not be funded or provided
5.3 The following supports will not be provided or funded under the NDIS:
(a)…
(b)a support that consists of income replacement
The CEO of the NDIA has made Operational Guidelines (Guidelines) to assist decision-makers in various aspects including what are reasonable and necessary supports. The Guidelines set out government policy and should be applied by the Tribunal unless there is good reason not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) ALD 634. This includes a Guideline on Interface with Transport published on 16 January 2014.
KLMN’S STATEMENT OF GOALS AND ASPIRATIONS
KLMN’s statement of goals and aspirations include the following:
My Health and wellbeing goal is: I want to maintain and improve my physical and mental health
…
My living arrangements goal is: I want to continue to live in my house.
…
My Social Participation goal is: I want to be more active within the community.
…
My Education goal is: I want to finish my … [post-graduate studies]
As at January 2016 KLMN’s NDIS plan comprised $22,078.19 in flexible supports and $6,171.17 in fixed supports. The flexible supports included orthoptic services for assessment of Function of the Eye and for recommendations regarding supports, occupational therapy; assistance to access community, social and recreational activities and transport for payment of taxis when KLMN is unable to drive or catch public transport due to her disabilities. The fixed supports included specialised driver assessment and training and a portable electronic magnification unit.
EVIDENCE BEFORE THE TRIBUNAL
KLMN provided written statements to the NDIA and a statement dated 21 November 2016 to the Tribunal. She also gave oral evidence. KLMN described the circumstances in which she had developed the disabilities from which she now suffers. These included Graves disease from which she is now in remission. That disease resulted, amongst other things, in eyesight issues and sensitivity to heat. KLMN also suffers from chronic post-traumatic stress disorder (PTSD) and she described the impact of that condition on her.
KLMN described her personal history including living overseas for some years and returning to Victoria after illness overtook her. She stated:
Currently I live next door to an abusive man. He has terrorised me and made me feel terrified on many occasions. He has mental health and substance abuse problems that result in delusions and aggressive and unpredictable behaviour. This is a factor my support providers must keep in mind as he may choose to approach them. He believes the driveways and common areas are his purview and often approaches and questions people who come to see me. For my safety I must request that my providers do not engage with him at all and ignore any approach he might make. His behaviour does trigger my C-PTSD. I have taken legal action to stop his harassment of me, with limited success.
In her oral evidence KLMN stated that she had reported the neighbour to the police. She also indicated that things had calmed down with him somewhat in the recent past.
KLMN stated her ideal week began with getting up early and working on her studies. On Monday at midday she participates in group singing at a location which is a difficult road trip for her to drive to and she must get a taxi to go there. She stated that she is supposed to go to the gym in the afternoon but has found it impossible to fit that in on Mondays. On Tuesdays a support worker from the university comes to her home to assist her with her studies for three hours. She stated that this keeps her on track and maintains her motivation. Another support worker paid by the NDIS comes later and takes her swimming.
Every second Wednesday a support worker paid by the NDIS comes to take her food shopping. She is a vegan and has to go to particular shops to meet her dietary requirements. She stated it is quite an expedition for her which she is unable to do on her own. It is difficult for her to navigate small roads and park at shopping centres. Every second Thursday she has an appointment with her psychologist. She drives there because it is nearby, taking about seven minutes. So far she has not had to use a taxi to get to an appointment with the psychologist. Once a month on Fridays, she attends meetings for women with disabilities. A support worker also takes her swimming on Friday afternoons.
KLMN described her vision issues and their management. She discussed the impact of light on her eyes and the other repercussions of her vision issues. Being aware of her sensitivity to light the Tribunal conducted the hearing with windows covered and the lighting switched off.
KLMN submitted that she required greater access to taxi services for a number of purposes. These included accessing community supports, enabling her to visit her two adult daughters, to watch her grandson compete in his chosen sport and to enable her to go to university. She also asked for a taxi to enable her to conduct certain events some distance from her home and for which she was paid as she is now unable to drive long distances due to her eyesight and tiredness problems.
KLMN told the Tribunal that she had conducted these events in various parts of Australia. She said the competitive environment meant that she had to keep her charges at a certain level and could not always charge the participating parties for the cost of her transport.
KLMN provided an estimate of supported journeys she believed were required which included an estimate of the kilometres to be travelled and a cost of $6,889.76. The supported journeys included travel to two conferences, assistance with shopping, trips to see specialists, participation in family events that involved long journeys and travel for recreation including swimming, biking and bush walks. On being questioned about some of the activities, KLMN said it was not practical for her daughters to take her given their responsibilities and difficulties.
KLMN described the huge impact of her eyesight problems on her ability to drive. If she drives for too long she suffers pain and gets hot. KLMN only drives to places she knows which take 10 to 15 minutes to reach. KLMN stated she obtained a taxi discount card during the previous year and described the difficulties she has using public transport. It is her PTSD coupled with not being able to see properly, combined with her depth perception problems that prevent her from using buses. She said her daughters’ ability to help was extremely limited.

Under cross-examination KLMN stated she had not undertaken any training in using public transport but would be prepared to do so if guided by professionals who believed that it would help her.
KLMN asked for air conditioning to be installed in her rental unit where she has lived for several years. She told the Tribunal that the landlord had not agreed to installation of an evaporative unit which she originally sought but had consented to a split system air conditioner provided it was at her expense and that she would rectify any damage to the property if it was to be removed. KLMN provided documentation showing her communication with the managing agent regarding the air conditioner and other tenancy matters. KLMN provided a quote dated 30 June 2016 from an air conditioning company for the installation of a split system unit of $2,400.00.
In her oral evidence KLMN stated that a cold environment helps to reduce her eye symptoms and pain. She therefore requires fewer painkillers and can work longer. KLMN said that she had tried ice packs for her eyes but that they only provide short-term relief and she can’t do anything else when the ice packs are on her eyes. One of her daughters has an air conditioner but lives 30 minutes away by car and she stated that the university is also too far away for her to use its air-conditioned facilities.
In a note dated 23 October 2013 when she was seeking to join the NDIS scheme, KLMN stated that she has not commented about all the issues she should when dealing with Vision Australia:
With regards to the matters I did not mention about coping with my disability, I have a lot of trouble in the warmer months as warmer weather exacerbates the swelling in my eyes, which increases the frequency I feel pain and also further limits my ability to use my eyes. The only relief I get is to sit in my car and run the air conditioner, sadly the drying effects of refrigerated air conditioning also causes problems with my eyes so it’s not a good solution. In an ideal world I would have evaporative air conditioning installed as this provides cool humid air, unfortunately I can’t afford to have a system installed and the running costs might not be affordable….
Under cross examination, KLMN stated that she had put roller blinds on her internal windows in an attempt to keep her unit cooler. She said that the air conditioning would help with her eyesight issues. KLMN said that she had not tried a cooling garment which had been suggested by the NDIA as an alternative to air conditioning. She stated that she had not considered a portable air conditioning unit as she had been told that they do not work as effectively as a fully installed air conditioner.
In relation to the enhanced security she was seeking which included fence extensions to the rear of the property, installation of locks to the ceiling space door in the bathroom, seven sliding window locks, a steel strip to the front door, a camera peephole to the front door and a deadlock to the front door, and the removal of all items installed if she leaves the property, the amount quoted by a tradesman was $1,165.00. In her oral evidence, KLMN said she wished to have higher fences to the rear of the property which backed on to some units in the next street as well as on the side near the pesky neighbour living in one of the other units where she lived. KLMN provided evidence that shows her landlord was prepared to allow her to install additional security measures provided that they were at her own expense. KLMN said she could shut the windows in the unit from the inside but the windows were not lockable by a key.
KLMN indicated that she has a security door but it only has a standard snib on it. She also stated that the sliding windows would be able to be lifted out of their frames. She said that she was aware of intruders having done just that elsewhere. In relation to a lock on the ceiling space, KLMN indicated that the roof of her unit was tiled but it was possible for someone to get in and she would feel safer with a lock. She confirmed that nobody had tried to break into her unit in the years she has been living there. KLMN said she is paying an affordable rent for her unit and does not want to move away from there at this time while she is still studying at the university.
KLMN stated that she had tried to get the landlord to put in extra locks on multiple occasions without success. She said she won’t answer the door unless expecting a visitor and conceded she does not know how often she has missed out on seeing people who visited.
KLMN provided a copy of a 12 month lease dated 19 August 2015 starting on 6 September 2015 and finishing on 5 September 2016.
Ms SJ, clinical psychologist, provided a report to Victoria Legal Aid (VLA) dated 9 June 2016. The report was about, amongst other things, the security adjustments that KLMN was seeking from the NDIA. Ms SJ stated that she had first seen KLMN after referral by KLMN’s general practitioner in June 2009. As at the date of the report, Ms SJ had seen KLMN for 57 psychotherapy sessions. Ms SJ stated that KLMN fulfils the criteria for PTSD according to the DSM 5.
In oral evidence Ms SJ described the nature of KLMN’s condition and the impact it had on her insecurity about safety. In her report Ms SJ stated:
… [KLMN] is frequently anxious and exhausted. It is crucial she have a place to relax and restore herself so she can continue to engage with the world…
Ms SJ said that KLMN has made some progress in overcoming the difficulties she faces but her condition can vary from time to time. Ms SJ outlined in her report of 9 June 2016 that KLMN’s PTSD has its genesis in past severe trauma:
She has extremely distressing intrusive memories and flashbacks about those events. She is easily triggered by situations and experiences acute physical reactions to reminders. As is common with PTSD she suffers… hypervigilance.
…Feeling vulnerable and unsafe tends to exacerbate her PTSD symptoms.
Ms SJ stated that over the years KLMN’s common theme has been a perceived lack of safety and security. KLMN has expressed fears about a neighbour in her villa unit complex, who has behaved aggressively toward KLMN and others in the complex generally. KLMN sought an intervention order against him to stop him harassing and threatening her. Outlining her opinion as to possible solutions to KLMN’s condition, Ms SJ stated that:
In order to feel safe in her current home she would benefit from securely lockable windows and doors as outlined in her request. She is also concerned about an access hole in her bathroom ceiling. A female neighbour in a like unit had a lock successfully fitted to the access hole after a home invasion. A lock could alleviate this issue for …[KLMN] and reduce her anxiety.
A front door peephole with camera screen would enable her to see and assess who was at the door. Currently she will not open the door if she is not expecting a visitor. This means she sometimes misses out on valuable social interaction and this reduces her ability to fulfil her goal of engaging with her community.
She currently feels unsafe in her yard due to a low fence. She is fearful people could climb over it. Raising the height would allow her to ... garden without fear. It would also reduce her concerns about her threatening neighbour.
…[KLMN] currently keeps lights on all night in an attempt to feel safe. Security lights that activate when movement is detected would allow her to relax at home at night, improving her mental health and ability to cope.
…
…[KLMN] has spent a lot of time considering what would make her feel safer. In my opinion the modifications would be effective and beneficial…. The security problems at her home are impacting on her ability to achieve her NDIS goals.
…
The disabilities interact in a negative feedback loop. Due to the PTSD she is anxious, hypervigilant and prone to avoidance. … [KLMN’s] vision problems make it harder to assess risk and danger. She finds it difficult to focus quickly and to see clearly. This, in turn, causes more intense hypervigilance and avoidance when it becomes overwhelming.
…
Ms JJ, a registered occupational therapist with over thirty years of experience, undertook an assessment of KLMN in her home in June 2016 at the request of VLA. Ms JJ was responding to suggestions and findings made by the NDIA. In her report Ms JJ stated, amongst other things:
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3. Environmental temperature control is likely to assist … [KLMN] to meet her goals as stated in her NDIS plan. It would assist with her strict study schedule…It would also assist her to maintain and improve her physical and mental health. The ophthalmologist found that a small improvement of eye function occurred when the eyes were colder, as a result of applying ice packs to the eyes.
Part of Grave’s disease is a swelling and protrusion of the tissues around the eyes, leading to overall forward protrusion of the eyes; proptosis, and chronic pain. This swelling and pain is worsened in hot weather.
…
While ice packs over the eyes may provide temporary relief when …resting, this is not practical for safe execution of daily living activities, performed independently… [KLMN] is renting a small west-facing unit, with concrete driveways and which lacks shading from trees. She is restricted in her ability to make changes to the home, as she is a tenant.
4. Effectiveness and benefits of temperature control:
Temperature control in hot weather would minimize additional swelling of the eyes and therefore pain. For … [KLMN] to continue to live independently and achieve her goals, she must minimize pain and associated difficulties as much as possible.
Chronic pain increases the risk of major depression and anxiety. It also affects a person’s ability to think clearly, concentrate and use memory and executive cognitive functions…. [KLMN’s] goals as outlined in her NDIS plan include completing her studies. This requires a high level of planning and organisation, memory and concentration. It also requires her to work consistently and regularly on weekdays, as she can only tolerate studying at this level for part of each day and needs to rest in the afternoons. If she is unable to study regularly and is interrupted by hot weather, this will put her behind in her schedule.
…
5. Cooling garments:
It is unknown whether cooling garments would be beneficial for… [KLMN] until they are trialed. There are wide variations in price, quality and practicalities in preparing and using such garments. I have not personally prescribed cooling garments for clients to date, although there is evidence for the use in clients with Multiple Sclerosis.
Cooling garments may reduce … [KLMN’s] body temperature, but would not remove humidity or increased temperature from the air.
…
12. In light of… [KLMN’s] vision impairment and mental health issues, are there any difficulties associated with... using public transport on a regular basis?
[KLMN] reports she has fallen from steps of a tram, as she is unable to judge depth perception accurately. This fits with her vision assessments indicating she has difficulty with establishing, changing and maintaining focus, particularly associated with movement. Public transport use is reportedly difficult and anxiety provoking for her. While training in this area is definitely possible, it would require a long term, multi-disciplinary approach to deal wholistically with physical, psychological and social difficulties…
[KLMN’s] PTSD has resulted in hyper vigilance associated with being in public places… She reports anxiety symptoms and feeling distressed when she is in confined areas, in unfamiliar areas, is in the position of reduced power, or is unable to see facial expressions clearly, and is unable to interpret expressions of other public transport users or staff… [KLMN] is also concerned about her physical ability to access public transport due to her difficulties with depth perception and negotiating stairs.
…
15. Why is home security important to … [KLMN]?
… [KLMN’s] PTSD symptoms include hyper vigilance and feelings of distress. Home security is important to …[KLMN] as she wants to feel safe in her own home and this will in turn lead to more effective functioning in all areas. When she is distressed, her memory, concentration and ability to think clearly are affected.
16. Are the security modifications listed likely to assist … [KLMN] to pursue her NDIS plan, goals, objectives and aspirations?
[KLMN’s] goal to maintain her mental health would be assisted by the security modifications. [KLMN’s] neighbour has forced his way into another resident’s unit nearby, thus adding to… [KLMN’s] distress and hyper vigilance associated with her PTSD. Security modifications would put her mind at ease, allow her to feel safe at home and reduce her levels of distress. Feelings of well-being and therefore improved
functioning with memory, concentration and study would then occur. The goal of continuing to live in her current unit would be assisted.
…[KLMN] keeps her front door locked from the inside the key hung nearby in the event that an emergency evacuation is required. This was shown to me during my visit. She would feel reassured if she could see who is knocking on her door before she opens the door. As it may take… [KLMN] some time to determine whether or not it is her potentially aggressive next-door neighbour, she needs this extra assistance. The increased fence height would allow… [KLMN] to feel safer in the back yard, as her next-door neighbour would not be able to see her when he is in his yard. This would allow… [KLMN] to attend to gardening tasks and meet her other obligations as a tenant. At present she avoids going outside at all.
Ms JJ gave oral evidence and confirmed the comments made in her report. Asked about the estimates of transport needs provided by KLMN, Ms JJ stated that the funding allocated by the NDIA would meet study and community access needs adequately but not in relation to the requirements of KLMN’s part time work or her participation in family activities away from her home town.
In cross-examination Ms JJ stated that she had visited KLMN at her home for around 75 minutes. Ms JJ said she did not drive in the car with KLMN. She had had no earlier involvement with KLMN. Ms JJ said she had based her comments about driving on reports provided by others and had not observed any issues with lighting as she had visited KLMN during the day.
Associate Professor JOD, consultant ophthalmologist, provided several reports after consultations with KLMN in relation to her eyes between 2009 and 2014. In his reports, he mentioned the importance of prism lenses but did not state that KLMN required an air conditioner to assist with her eyesight issues. He did however state in a report to KLMN’s general practitioner in February 2014:
…we were able to demonstrate a small improvement in the degree of proptosis when her eyes were colder.
The NDIS has fact sheets setting out the guidelines used for various supports including one on participant transport.
What is transport funding?
A participant will generally be able to access funding through the NDIS for transport assistance if the participant cannot use public transport without substantial difficulty due to their disability. Funding takes into account any relevant taxi subsidy scheme, and it does not cover transport assistance for carers to transport their family member with a disability for everyday commitments.
…
Expected levels of transport support
There are three levels of supports for transport assistance, as set out below. The three levels are used to provide a transport budget for participants. NDIA funded supports are indexed on an annual basis.
Three new participant transport support levels:
Level 1 - The NDIS will provide up to $1,606 per year for participants who are not working, studying or attending day programs but are seeking to enhance their community access.
Level 2 - The NDIS will provide up to $2,472 per year for participants who are currently working or studying part-time (up to 15 hours a week), participating in day programs and for other social, recreational or leisure activities.
Level 3 - The NDIS will provide up to $3,456 per year 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.
Exceptional circumstances: participants may receive higher funding if the participant has either general or funded supports in their plan to enable their participation in employment.
SUBMISSIONS
In her oral submission on behalf of KLMN, Ms Siskovic stressed the difficulties that KLMN faced in driving and in using public transport. She stated that KLMN could not rely on family to assist her travel. More often than not it is KLMN who provides support to her children and grandchildren rather than the other way around. Ms Siskovic submitted that the air conditioning was needed for the vision problems and an ice pack or cooling garment would not have the same impact. It was unclear whether a cooling garment would be of assistance.
Ms Siskovic stated the benefits of the additional security, which the landlord was not prepared to fund, would result in KLMN feeling safer, sleeping better and feeling calmer.
Ms Dickinson, on behalf of the NDIA, set out the legislative framework of the Act and the nature of the Guidelines. In relation to specific supports, she stated that she was relying on the internal review decision except for those items that had changed since 9 February 2016 such as the funding of the mobile phone and mirrors.
In written submissions, the NDIA stated that the original decision was not to provide funding in relation to the installation of locks, undertake fence extensions and repairs and replace and install security lights on the basis that they did not satisfy s 34(1) of the Act and it considered the expenses of the modifications and repairs were the responsibility of KLMN’s landlord pursuant to s 34(1)(e) of the Act. In the written submission, the NDIA stated:
45. The Respondent refers to the Applicant’s lived in statement which she provided in June 2016…in which she states she is currently living next door to an abusive man who has terrorised her and made her feel terrified on many occasions. The Applicant has apparently taken legal actions against her neighbour with limited success. The Respondent submits that the funding in relation to the installation of locks on gates and windows to the Applicant’s private rental; repairs to the fence; and repairs to security lights is a support that does not relate to the Applicant’s disability.
…
The NDIA did not agree to fund the installation of an environmental temperature control unit in KLMN’s rental property on the basis that the requirements of sections 34(1)(a) and (c) were not met. The NDIA also relied on the opinion of an occupational therapist, Mr MA, who determined that the support was not likely to be effective and beneficial for KLMN having regard to current good practice pursuant to s 34(1)(d) of the Act. In its written submission, the NDIA stated:
…
36. In particular, the support does not represent value for money in that the cost of the proposed support is not reasonable relative to both the benefits and costs of alternative support. It is submitted that the Delegate would consider alternative support such as ice packs and cooling garments.
…
38…The Respondent submits that alternative support such as a portable humidifier or a cooler unit may be more appropriate and less costly. The Respondent notes that no alternative support has been put forward by the Applicant.
…
40. There is no published and referred literature or any consensus of expert opinions with regards to the benefits of an environmental temperature control unit to the Applicant’s eyes and concentration.
…
42…It is the view of occupational therapist …[JJ] … that the Applicant’s study and concentration would be regularly interrupted by hot weather and in turn would put behind her schedule to complete her goals. The Respondent submits that the proposed support does not solely or predominately relate to the Applicant’s disability rather it is a kind of support that any Australia might need. According to the Operational Guidelines – Planning and Assessment – Supports in the Plan – Home Modifications…, the proposed support should not be funded by the NDIS.
…

Upon review, KLMN’s transport funding was increased to $2,377.00. The review delegate maintained the decision to refuse funding for KLMN’s air conditioner but suggested that alternative supports could be trialled and funded. The original decision concerning funding for home and safety security was also maintained on the basis that the support was not reasonable and necessary.
The NDIA advised in its written submission that in KLMN’s current plan dated 29 September 2016 (not the plan that is under review here), the transport component had been increased to Level 3 Funding at $3,456.00 on the basis that:
The funding reflects that the Applicant is a participant who is currently working and studying at least 15 hours per week, and is unable to use public transport.
The NDIA’s written and oral submissions were prepared prior to the McGarrigle decision. The NDIA submitted that the travel costs estimate prepared by KLMN contained elements that should not be part of NDIS funding including the funding of travel for KLMN to attend events for which she is paid a fee and lengthy taxi journeys to watch a grandchild participate in sport when he and his mother live in the same regional city as KLMN and journeyed 250 kilometres away to compete.
The NDIA also submitted that that:
…some of the Applicant’s travel costs to recreational activities form part of her day-to-day living costs that are not attributable to the Applicant’s disability support needs. This is particularly the case when the Applicant has driving tolerance of up to 30 minutes. The Respondent draws the Tribunal’s attention to the fact the Applicant’s travel distance to attend her swimming activity is approximately 10km one way and the travel distance to attend her biking activity is approximately 7.5km one way. The Respondent submits that these travel distances are well within the Applicant’s driving capacity. Alternative support such as public transport has not been factored in these travel estimates.
The Respondent submits that the full funding of the Travel Costs Estimate is not reasonable as it will result in funding the Applicant’s day-to-day living costs contrary to Part 5.1(d) of the Rules and having regard to the financial sustainability of the NDIS.
Following the McGarrigle decision, VLA provided a supplementary submission dated 20 April 2017, excerpts of which follow:
…
5. The Applicant makes the following submissions drawing on the important clarifications provided by the Federal Court in relation to the issue of whether on its proper construction, the National Disability Insurance Scheme Act 2013 (Cth) (“the Act”), requires “reasonable and necessary supports”, once identified, to be fully funded by the Agency. To put it another way, the Federal Court dealt with the question of whether the Act can be construed as including or extending to, partial funding of each support.
Key findings in McGarrigle
6. The Court (constituted by HH Mortimer J) found that the participant’s plan “is the foundational document” for a person’s access to services under the NDIS (at paragraph 87). It further noted that “… goals, objective and aspirations of a person with disability are a core aspect of the participant plan and … the supports which are approved are intended by the scheme to support pursuit of those goals objectives and aspirations” (paragraph 103).
7. The Court found that the “relevant gateway established by the legislative scheme is whether the support is reasonable and necessary and once through the gateway, the scheme intends the support will be fully funded. There are no references in these provisions to “contributions” from the participant, the participant’s family or carers” (at paragraph 95). It relevantly found that the Agency’s submission by reference to the concept of contributions “seek to place a gloss on the provisions” (at paragraph 96).
8. It reiterated that the scheme contemplates that “whatever support the decision-maker determines is reasonable and necessary is the support which will be fully supported” (at paragraph 98)….
…
Application of McGarrigle to current appeal: Transport Funding
16. The applicant submits that her estimated transport cost of $6889.76 is a reasonable and necessary support within the meaning of section 34 of the Act and should be fully funded as per the clarification provided by the Federal Court decision in McGarrigle.
17. The Applicant suffers from a number of conditions including complex PTSD and experiences significant vision difficulties associated with Graves disease. She contends that the need for transport funding is directly and intrinsically linked to her disabilities…
…
20. The Applicant submits that funding for the cost of transport is integral to the supports and her plan and its effectiveness. She maintains that the respondent’s decision to increase her funding to $2,377 is not sufficient to meet her needs and allow her to pursue her goals and aspirations. It reflects an erroneous and/or inflexible application of the legislative framework which inadequately takes her particular needs and individual circumstances into consideration.
21. She draws on and reiterates her previous submissions that the transport funding support represents value for money in that the costs support are reasonable, relative to both the benefits achieved and the cost of alternative support.
CONSIDERATION
Additional transport assistance
The Tribunal had before it a document prepared by KLMN that estimates the amount of transport assistance she believes she needs. The Tribunal also has later submissions prepared by the legal representatives of both parties stating that KLMN’s transport funding was raised to $3,456 in her current plan. There is no indication that KLMN’s needs or conditions had changed at the time that the new plan was put in place and are any different to that which existed in the plan under review. Therefore, the Tribunal accepts that KLMN should have, at a minimum, been at Level 3 funding under the plan it is reviewing. Based on the evidence, she clearly meets the criteria for Level 3. The Tribunal sees no need to re-analyse all the criteria for Level 3 funding given the NDIA has now found that KLMN meets relevant legislation and guidelines.
However, the estimate prepared by KLMN and the funding sought was $6,889.76, almost double the Level 3 allowance. As is spelled out in the Guideline, an amount higher than Level 3 may be funded if additional assistance is reasonable and necessary. The Guideline suggests exceptional circumstances may relate to general or funded supports to enable participation in employment.
As far as employment is concerned, KLMN was optimistic that she would be engaged to conduct 10 events per year travelling an average of 180 km return to the venue, estimating a total of 1800 kms. However, there is no evidence before the Tribunal that KLMN did in fact conduct that number of events during the now expired period of the plan. KLMN told the Tribunal what she charges for the events which she said was the standard rate. When asked if she can charge extra for travel to and from a venue to conduct the event, KLMN said that she would price herself out of the market if she did so. KLMN said that her two daughters who live nearby are too busy with their own children and one daughter also has serious health issues. She did not think it would be appropriate to ask participants or people attending the events to pick her up on their way. KLMN was rather vague about where the events were held, saying in the past they had been in various parts of Australia and that Apollo Bay was a popular site.
KLMN also requested financial support for two taxi round trips to Melbourne and/or a particular regional town to watch her grandson participate in his chosen sport which he does at an elite level. The two journeys were each described as a return distance of 250 kms each, being a total of 500 kms. KLMN said that it was not practical to travel with her daughter and grandson notwithstanding that they lived nearby because they left early and returned late and it would be difficult for her if she had to spend the whole day at the venues.
Other transport funding sought included taxi travel to undertake eight bush walks at a particular national park with a return distance of 80 kms each, a total of 640 kms. KLMN also asked for travel support for 16 return trips to undertake bike riding along a particular river, a distance of 15 kms return for a total of 240 kms and 80 swimming sessions with a return distance of 20 kms at a total of 1600 kms. Having a support person take her to swimming twice a week was one of the supports provided to KLMN by NDIA in the plan under review.
KLMN requested taxi travel for family events including visiting a relative in a Melbourne suburb and taking an aunt living in another regional city to visit family graves in another town. She also used transport support to attend two conferences in Melbourne, one of three days and one two days, returning to her home each night for a total of 570 kms.
In its submission to the Tribunal on this issue the NDIA submitted the full funding of the travel costs to the extent sought by KLMN would result in the funding of part of her day-to–day living costs which were not attributable to her disability support needs. The NDIA stated that this was contrary to Part 5.1(d) of the Rules. The NDIA submitted that the travel for some of KLMN’s recreational activities were within her driving capacity.
The NDIA decision makers also suggested that KLMN may benefit from guided training in using public transport which KLMN said she had not undertaken.
The NDIA also submitted that whilst reasonable support to assist applicants to undertake economic participation is appropriate, the travel costs sought by KLMN to conduct events are excessive and should be factored into the fees she charges.
As the Full Court stated at paragraph 4 in the NDIA’s appeal against McGarrigle, the decision on whether a support is reasonable and necessary depends on the facts of the case.
4. It was also common ground before us that the operation of the Act was particularly fact dependent and that the parties’ competing arguments presently sought to be made should be assessed in that context, including with regard to the specific circumstances of an individual participant.
The Tribunal is not satisfied that all of the additional transport funds sought by KLMN are reasonable and necessary. In particular, the Tribunal is not satisfied that it is reasonable and necessary for taxi travel to be provided for KLMN to attend her grandson’s sporting performances in distant places or for biking and bushwalking trips by taxi. The provision of a taxi fare to travel 180 kms to conduct events that may or may not take place is also of concern. The wish to go by taxi for five days return to attend conferences in which KLMN is interested is also somewhat extravagant but has already taken place to the Tribunal’s understanding. By coming back each night KLMN cut back on accommodation costs.
KLMN has stated that she once fell off the steps of a tram and faces difficulties with using local buses. The Tribunal accepts that she has trouble with trams and local buses and that it is difficult for her to judge depths and people’s expressions which results in some distress due to her PTSD and eyesight combination factors. However, there has been no evidence to show that KLMN would have the same difficulties in catching an express train to Melbourne that she has with using local buses. Furthermore, should she be provided with more appropriate tinted prism lenses, KLMN’s present difficulties with driving and catching public transport may not be as daunting as they are at present.
The Tribunal notes that KLMN has not undertaken any training in use of public transport and this has been suggested to her by the NDIA. KLMN has stated that she would be willing to undertake such training. The Tribunal notes that the design of trams, buses and trains and the places that they stop has been changing over the years with particular emphasis on accessibility and safety for people with disabilities. The Tribunal, however, is also aware that these changes have not been made in every instance. Training and selection of particular places at which to get on and off as part of that training may well prove useful and help to dispel some of KLMN’s fears about using public transport.
In considering the additional transport funding sought by KLMN, the Tribunal is satisfied that the additional transport funding meets s 34(1)(a), 34(1)(b) and 34(1)(d) of the Act. However s34(1)(c) is problematic as the Tribunal is not satisfied that the costs of the support are reasonable. In looking at Rule 5.1 the Tribunal is also not satisfied that some of the transport sought is related to KLMN’s disability support needs.
The Tribunal determines that the transport support for taxi fares to watch her grandson play sport in locations 250 kms from KLMN’s home town is not reasonable nor is her wish to take taxis to undertake biking or bush walks. To provide 10 trips of 180 kms each way to conduct events also appears to be somewhat excessive. Furthermore the costs for the 10 trips could be ameliorated by travelling to the yet undetermined locations with persons attending the event. KLMN stated that she needed to get to the venues well ahead to prepare for them so perhaps it is reasonable to allow for three events rather than 10 events but the Tribunal believes KLMN should, in the future, test out whether others involved could take her along if they pass through or live in the same city as she.
If those items are removed from KLMN’s claim for public transport, the support sought is lessened by 2,640 kms which results in a reduction for the support sought to around $3,550. This is very close to the Level 3 amount of $3,456 per year which is her current plan.
The Tribunal finds that KLMN should have had her funding for the plan under review set at $3,456. If KLMN has spent in excess of what was previously allowed for travel, namely $2,377, it would appear appropriate for her to provide evidence to the NDIA of that expenditure and its relationship to her disabilities and seek reimbursement up to $3,456.
As has been stated on a number of occasions, the Tribunal’s decision refers to a past plan not the current plan so apart from being able to claim any fares that are above the previously funded level of $2,472, there is not necessarily any impact from the Tribunal’s decision on future transport needs.
Air conditioning
As indicated KLMN is asking the NDIA to pay for an air conditioning unit and installation in the property she is renting. She is also seeking the cost of its removal should she decide to move or is required to do so by the landlord. KLMN has been renting the same unit for several years. The rent is reasonable and its location is quite good, it is close to the university at which KLMN studies, as well as being in the same city as two of her three daughters and her four grandchildren.
KLMN is on a year by year lease with the end date corresponding closely with the end of the plan under review. The lease requires her to have permission of the landlord to undertake any alterations. KLMN was originally seeking an evaporative air conditioner but the landlord would not agree to it. The landlord has now indicated that there is no objection to a split system air conditioner provided KLMN pays for it and if it is removed, rectifies any damage to the property.
On 30 June 2016 KLMN obtained a quote for purchase and installation of an air conditioning unit of $2,400. Ms JJ, in her report of 16 June 2016, stated that KLMN’s study and concentration would be improved if she had an air conditioning unit. The Tribunal was not presented with evidence from KLMN’s general practitioners or specialists that such would be the case. Her psychologist and the occupational therapists supported her submission that air conditioning would assist her.
The NDIA submitted that the funding for the air conditioning unit does not satisfy all the criteria under s 34(1) of the Act. The NDIA pointed out that there had been no measurement of the small improvement when KLMN’s eyes were cooler in February 2014 following the application of ice packs to her eyes mentioned by Associate Professor JOD. He makes no suggestion of an air conditioner providing a solution.
The NDIA also stated that the proposed support does not solely or predominantly relate to KLMN’s disability but rather is a kind of support that any Australian might need. The NDIA cited the Operational Guidelines – Planning and Assessment – Supports in the Plan – Home Modifications as another basis for its comments. The NDIA also submitted that there is no published and refereed literature or any consensus of expert opinions concerning the benefits of an environmental temperature control unit to KLMN’s eyes and concentration. The NDIA submitted, based on KLMN’s own comments, that the type of air conditioning unit being suggested may increase the dryness of her eyes. However, KLMN countered that comment by saying she had been advised that leaving water at relevant points may alleviate that problem.
The NDIA also stated that alternative support such as a portable humidifier or a cooler unit may be more appropriate and less costly. There was also a suggestion of cooling garments. KLMN has not indicated a willingness to try those options.
The Tribunal understands the request by KLMN to have air conditioning in her rented unit. Many people who live in accommodation that is not easy to cool would like an air conditioner. However, the Tribunal accepts the NDIA’s submissions that it is not reasonable and necessary to fund the installation of such a unit into KLMN’s rental property, a property in which she has chosen to live on the basis of reasonable rent and its proximity to the university and her children and grandchildren. There is no medical evidence beyond the assertions of the allied health professionals, namely the occupational therapists and the psychologist, that the air conditioner will help her to manage her condition and lifestyle.
The Tribunal finds that it is not reasonable and necessary for the NDIA to fund the purchase and installation of an air conditioner in the plan under review.
Home and Safety Security
KLMN is seeking enhanced security for the property. This includes additional locks for doors and windows and a higher back and side fence than presently exists. A quote for $1165 was provided to the Tribunal outlining the requested modifications and the cost. The modifications include:
·5 fence extensions to rear of property
·locks (2 off side latch) to ceiling space door
·7 sliding window locks
·steel strip to front door
·camera peep hole to front door
·dead lock to front door
One of KLMN’s concerns has been a neighbour with mental health and alcohol issues. However she conceded that the problem with him has diminished. Originally a number of her concerns arose out of his behaviour towards her and other residents of the complex.
In relation to the fence, KLMN said that there had been a fence extension at the back when she first moved into the property which has deteriorated. She now seeks some additional extensions on the side fence facing the difficult neighbour as well. The NDIA suggested, and the Tribunal agrees, that the repairs should be the landlord’s responsibility rather than the NDIA’s. The request for the extra fence extensions appears to arise mainly from KLMN’s wish for greater privacy in her backyard so that neighbours in the units behind her property as well as the problem neighbour, cannot observe her if she is in her backyard. The Tribunal agrees with the NDIA that the additional fence extensions should not be classified as reasonable and necessary.
In relation to the requests for additional locks and the like, Ms SJ stated that increased security for her home would assist KLMN to feel safer. Likewise Ms JJ stated that KLMN’s goal to maintain her mental health would be assisted by the security modifications. Ms JJ and Ms SJ both link KLMN’s request for additional security to her PTSD.

The NDIA has put forward three main arguments in relation to KLMN’s requests for the security modifications. Firstly, the NDIA submitted that the modifications do not relate to KLMN’s disability. Secondly, the NDIA submitted modifications are not reasonable and necessary and the costs should be more appropriately borne by the property owner in accordance with s 34(1)(f) of the Act. Thirdly, that the modifications do not represent value for money within the meaning of s 34(1)(c), and paragraphs 3.1 and Part 5 of the Rules.
KLMN currently is able to lock her front and back doors and her windows. They may not be impenetrable but they still appear to be adequate enough to meet residential tenancy requirements. The request for locks to the roof access appears to have arisen as a result of a neighbour’s experience. As discussed, the landlord has not agreed to fund the upgrades sought by KLMN.
KLMN has stated that she will stay in the current accommodation whilst she is still completing her studies due to its location and relative affordability. However she is under no obligation to do so at the end of her lease. She is nearing the end of her studies and it is not clear what her intentions are once she finishes.
In relation to section 34(1)(c) the Tribunal is not convinced that the additional security features represent value for money. When one looks at paragraph 3.1(b) there is no evidence beyond the treating psychologist’s comments in her report to VLA and the comments of the occupational therapist who visited KLMN at VLA’s request that the support will substantially improve the life stage outcomes for, and be of long-term benefit to KLMN. Neither is there any evidence that funding of extra security will reduce the costs of the funding of supports for KLMN in the long term.
The Tribunal is not convinced that the security upgrades sought will meet the requirements cited above under the Rules. The Tribunal finds the security additions and modifications are not reasonable and necessary supports pursuant to s 34 of the Act.
DECISION
The Tribunal sets aside the decision concerning transport assistance and substitutes a decision that KLMN is eligible for Level 3 assistance of $3456.00.
The Tribunal affirms the other decisions under review.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member

[sgd]........................................................................
Associate
Dated: 20 October 2017

Date(s) of hearing: 21, 22 November 2017

Date final submissions received: 10 May 2017

Solicitors for the Applicant: Victoria Legal Aid

Solicitors for the Respondent: National Disability Insurance Agency

[2017] AATA 1814

20 October 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	21, 22 November 2017
Date final submissions received:	10 May 2017
Solicitors for the Applicant:	Victoria Legal Aid
Solicitors for the Respondent:	National Disability Insurance Agency