KLMN and National Disability Insurance Agency
[2017] AATA 1815
•20 October 2017
KLMN and National Disability Insurance Agency [2017] AATA 1815 (20 October 2017)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2016/3517
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 under review and substitutes a decision that the respondent should have funded prism lenses for KLMN in her now expired plan.
[sgd]........................................................................
Regina Perton, Member
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – vision issues - prism lenses – whether likely to be effective and beneficial – whether NDIA should fund purchase
Administrative Appeals Tribunal Act 1975 ss 34J, 35
National Disability Insurance Scheme Act 2013 ss 3, 4, 33, 34, 209
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Fear, by his mother Vanda Fear and the National Disability Insurance Agency [2015] AATA 706
McCutcheon and National Disability Support Agency [2015] AATA 624
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v McGarrigle [2017] FCAFC 132Young and National Disability Insurance Agency [2014] AATA 401
Secondary Materials
National Disability Insurance Scheme (Supports for Participants) Rules 2013
Operational Guidelines issued by the National Disability Insurance AgencyREASONS FOR DECISION
Regina Perton, Member
20 October 2017
KLMN is a participant in the National Disability Insurance Scheme (NDIS). As with KLMN’s earlier Tribunal application (2016/1118), the Tribunal has granted her request for confidentiality pursuant to s 35 of the Administrative Appeals Tribunal Act 1975. To give effect to the s 35 order, some of the details in these reasons are made deliberately vague.
KLMN suffers from vision problems initially brought on by an illness. That illness is now in remission but it has left a legacy in relation to KLMN’s eyesight. Amongst the vision problems that KLMN has been experiencing is double vision. KLMN was prescribed what are known as prism lenses to assist her to minimise the impact of her visual disability. She and the optical specialists she has consulted agree that they make a substantial contribution in ameliorating her visual problems.
KLMN had a participant plan in place approved by the National Disability Insurance Agency (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 set out her goals and aspirations. The NDIA provided funding for a number of participant supports which included transport when she was unable to drive, personal assistance with shopping, participation in community activities and a magnification unit to assist her to use her computer. The NDIA refused funding for some of the supports KLMN sought in relation to the plan under review. Some of those items are dealt with in a separate decision by this Tribunal (2016/1118). This case is concerned with the NDIA’s refusal to fund six pairs of glasses with prism lenses.
On 17 May 2016 the NDIA refused the funding of the prism lenses that KLMN is required to use under her conditional driver’s licence on the basis they do not represent value for money and that they are more appropriately funded or provided by other service systems. On 24 May 2016 KLMN sought reconsideration by the NDIA of the decision to refuse to fund the prism lenses. On 22 June 2016 an authorised delegate advised KLMN that the agency was affirming its original decision. On 7 July 2016 KLMN lodged an application for review with the Tribunal.
Initially the matter was to be dealt with by hearing but at the request of KLMN and agreed to by the NDIA, the Tribunal has reviewed the decision without a hearing based on the documents provided and written submissions lodged pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (AAT Act).
Following a hearing in November 2016 in relation to KLMN’s other matter, this case 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 parties asked, and the Tribunal agreed, that this matter would proceed regardless of what the outcome was of the NDIA’s appeal against the McGarrigle decision. In the meantime, the Full Federal Court affirmed the McGarrigle decision on 21 August 2017 (National Disability Insurance Agency v McGarrigle [2017] FCAFC 132).
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.
KLMN’S STATEMENT OF GOALS AND ASPIRATIONS
KLMN’s statement of goals and aspirations included 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.
WRITTEN EVIDENCE
KLMN provided written statements to the NDIA and a statement dated 21 November 2016 to the Tribunal.
In her written statements to the NDIA and the Tribunal, KLMN described the circumstances in which she had developed the visual 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 involving double vision, sensitivity to light and bulging eyes.
KLMN has a conditional licence that specifies she must wear her prism lenses when driving. She stated she is unable to drive long distances due to her eyesight, mental health issues and tiredness problems.
KLMN described the impact of her eyesight problems on her ability to drive. She can only drive relatively short distances to places she knows which take 10 to 15 minutes. KLMN stated she obtained a taxi discount card during the previous year. KLMN 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 problem that prevents her from using local buses.
In a statement provided to the Tribunal, KLMN stated:
My eye problems
Due to thyroid eye disease I have diplopia, proptosis, exophoria and esophoria and photophobia. This means I have permanent double vision, my eyeballs protrude from the orbits, my eyes do not converge properly, focusing is very difficult, especially in near vision and I am very light sensitive. Using my eyes causes me pain and fatigue every day. It may be immediate or take several minutes to set in, ranges from mild to extreme depending on conditions and demands. At times of major fatigue my eyes just refuse to look at anything anymore and I may pass out or simply cease to be able to comprehend what I am looking at, even though I know I can see something.
I have a great deal of difficulty with everyday situations, the correct glasses make the situation more manageable. Some of the biggest challenges are:
·I never see people I know anymore, I can’t recognise people unless I look at them for ages. Due to PTSD I can’t do that as I worry I will be seen as staring and aggressive and will be treated as a threat by people.
·Driving – this is the most demanding task I am asked to do.
·I get scared in cars as a passenger, everything is so close, too close
·Not being able to see accurately exacerbates other PTSD symptoms
·My reading comprehension is not always accurate.
·Words move on the page, reading the lyrics at singing is difficult / moving to the next line I get lost / I have to read over
·It’s difficult to concentrate when pain is affecting me
·I can’t remember long sequences of numbers and forget what I’ve read as soon as I read it.
· My typing accuracy is not good and I have to make a lot of corrections, which is also very challenging.
·Things are not where I think they are.
·I can only use my eyes for a very limited time.
·If I over do it on one day it can knock me out for several days
·I can’t see my face properly to take care of my skin and hair properly
·I must use painkillers but they are debilitating and limit my function
·anti-inflammatory medications contribute to ill health for me
·It’s difficult to concentrate and keep my gaze on one thing for any length of time.
…
KLMN then goes on to discuss coping strategies she uses including acquiring suitable frames and corrective lenses, trying to provide a more conducive environment, pain management techniques, diet and managing her circumstances including avoiding dangerous places, using assistive technology, avoiding high demand circumstances and avoiding viewing moving objects. KLMN then describes her life without glasses stating that it is impossible for her to see people’s faces, read or write, drive, use the computer, study and be pain free. KLMN goes on to state:
Current glasses
Currently I have only one pair of glasses that the optometrists say meet my needs and do not need to be replaced. These are my Lightweight frames with single-vision near anti-glare coated lenses. I have three other pairs that are either scratched, have the wrong prescription or are very painful to use. Two pairs of the six necessary would be new prescriptions for me.
Accessing funding for glasses
When I was first prescribed prisms I was living… [overseas] … The first time I wore them it was a revelation, everything had crisp edges once again. My eyes could converge again. Only a very small amount of prism was required to achieve that. My eyes have constantly changed and these days more prism is required…
…
Victorian Eyecare Scheme
I have tried to use the Victorian Eye-care Scheme around 4 times in the last 5 years. The assistance available is not designed for people with the kinds of condition I have been diagnosed with. I first tried to access the scheme through … [a named provider] but they advised that they did not stock and the VES did not cover, the types of frames and lenses I needed. More recently I booked to see an optometrist locally but as I had recently had my eyes tested, I was advised that testing would not be bulk billed and so I cancelled that appointment.
Some months later, in July 2016, I was examined by a … [another provider] who provided me with clear single-vision and distance lenses to a pair of old frames I had. Those lenses cost $18, under the VES but have proved not to be useful as they do not have anti-glare coatings. They also quoted on several other frames and lens combination however none of what they were able to provide fully fitted my needs. After I tried the one set of lenses from them I realise that I would probably find myself with glasses that did not work and at considerable expense. I didn’t have the funds to test that hypothesis.
In September this 2016 I visited the head office of the VES at the Australian College of Optometry. I was able to obtain definitive decisions about what the VES would cover and what frames, lenses and coatings were available….The optometrist and orthoptist were very thorough and confirmed that I do indeed need 6 pairs of glasses and that some pairs will be covered, and to differing amounts, under the VES. They do, for the most part, have suitable stock to provide the 5 pairs that I need, one pair of my current glasses do not need to be replaced. The total cost to provide those 5 frames and lenses, in excess of the cost subsidised under the VES is $1332.50. I am asking the NDIS to fund that as a support in my NDIS plan.
Please note that none of my existing frames are suitable for reuse due to their age. They must be under 5 years of age or the VES administrators - the Australian College of Optometry will not re-use them
Associate Professor OD, opthamologist, provided several reports after consultations with KLMN in relation to her eyes between 2009 and 2016. In his reports, he cites the importance to her of prism lenses. In a recent report dated 23 May 2017 prepared at the request of Villamanta Disability Rights Legal Service Inc (Villamanta), he stated:
I have been seeing … [KLMN] over an 8 year period. Clinically I thought she had thyroid eye disease and she had difficulty reading with variable double vision.
The problem of double vision has improve[d] with prisms in her glasses.
The degree of prism for distance and for near are slightly different and are required to ameliorate double vision.
Thyroid eye disease can be manifest as an alteration in extra ocular muscle function resulting in double vision. I thought her double vision was the result of the thyroid eye disease and that she required prisms in her glasses to obtain single vision.
I last saw her in August 2016, at that stage she had prisms in both the right and left lens.
This did improve her double vision. I think the prisms are essential for management of this double vision.
The size of the double vision may alter over a period of time and the prisms may therefore require change.
The degree of squint at this stage is not sufficient to require any surgical intervention.
In earlier reports usually addressed to KLMN’s general practitioner, Associate Professor OD stated that she did not have any other general eyesight problems, having good vision.
In a report dated 23 May 2017, Ms GM, optometrist, stated that:
…
… [KLMN’s] main visual need is for prisms to realign, allowing her to focus and to prevent and relieve chronic ocular pain and fatigue. Chronic ocular pain also indicates the need for ultra lightweight flexible frames. Due to … [KLMN’s] eye condition she is also extremely photophobic so tinted polarised glasses and anti reflective coating are necessary. … [KLMN] also needs frames with nose pieces due to proptosis. The nature of muscular involvement of …[KLMN’s] eye disease means that bifocal or multi focal glasses are not suitable, therefore three specific focal length glasses have been prescribed for the specific tasks …[KLMN] is required to perform on a daily basis.
oDistance – 2m+ driving and viewing long distance eg. Seeing people’s faces, watching TV
oIntermediate – computer use, cooking, gardening
oNear – reading, grooming, …
…[KLMN’s] current distance sunglasses are damaged and need to be replaced. The current distance clear glasses do not have anti-glare coating on them, which is essential for glare control during night time and dim lighting conditions, so will need to be replaced. She has no intermediate tinted lenses and her current clear intermediate lenses are damaged and cause pain.… [KLMN] has no tinted near prisms and has lost her clear near glasses. She has not had intermediate or near tinted prisms previously.
To summarize, … [KLMN] needs:
1. Distance outdoor tinted polarised glasses with prism lenses in ultra lightweight flexible frames that have nose pieces. (Required for drivers license)
2. Intermediate outdoor tinted polarised glasses with prism in ultra lightweight flexible frames that have nose pieces.
3. Near outdoor tinted polarised glasses with prism in ultra lightweight flexible frames that have nose pieces.
4. Distance indoor clear glasses with prism and anti-glare anti-reflective coating in ultra lightweight frames that have nose pieces. (Required for drivers license)
5. Intermediate clear glasses with prism and anti-glare anti-reflective coating in ultra lightweight frames that have nose pieces.
6. Near indoor clear glasses with prism and anti-glare anti-reflective coating in ultra lightweight frames that have nose pieces.
Unfortunately there are no other alternatives for … [KLMN].
In a report dated 6 September 2016, Mr GR, optometrist stated:
… [KLMN] came to see me on the 02/07/2016 to organise new glasses through the Victorian Eyecare Scheme (VES). …[KLMN] suffers from Grave’s disease that has caused issues with her vision, at distance, intermediate and near. The condition has caused a variable misalignment of the eyes that requires prism in her glasses to help. … [KLMN] is best suited to separate glasses for each task, distance glasses (SVD) for driving, TV etc, Computer glasses (SVI) to focus as an intermediate distance, and reading glasses (SVN) veneer tasks specifically. Progressive lenses (all in one) are not suitable for …[KLMN] due to the prism requirement that does not work particularly well in progressive lenses and…[KLMN] has issues with the distortion and limited range of the intermediate zone of these lenses. … [KLMN] also has significant issues with glare and would like to have a second pair of each of the glasses tinted to help decrease her glare concerns.
…
I am happy to organise some glasses through the VES system however they will only cover 2 pairs of the 6 that … [KLMN] feel she requires that this time. The VES will cover her for SVD and SVN clear lenses as a subsidy, however it will not cover intermediate glasses nor the tinted distance, intermediate and near glasses that … [KLMN] feels that she requires. We have ordered her the glasses that we can through the VES however if she needs her other glasses that will need to have subsidy from elsewhere or be paid for privately.
…
On 19 August 2015, KLMN attended at Vision Australia for an assessment at the request of the NDIA. Ms MP, orthoptist, provided a report to the NDIA on 9 October 2015. Ms MP provided information about the impact of Graves’ disease. Ms MP stated that patients may experience extreme sensitivity to sunlight, blurred and/or double vision and ocular muscle weakness and fatigue.
Ms MP stated in relation to glare sensitivity:
Fluorescent lighting is recommended for general lighting as it provides diffuse light minimising the potential for shadow and glare. Use blinds and/or curtains to eliminate glare within the working area.
… [KLMN] may benefit from wearing tinted or photochromatic glasses indoors. Encouraged to also wear a hat and sunglasses outdoors.
Ms MP recommended that KLMN receive computer software that would enable her to enlarge text and connect her computer to a scanner to enable references and other documents to be scanned onto the computer. The NDIA funded that purchase in the plan under review.
In a letter dated 19 June 2017 following questions raised by KLMN’s lawyer, Ms MP stated that the earlier assessment she had written about KLMN was only based on KLMN’s goal of returning to study. Ms MP stated that :
..There are no other alternatives to prism glasses – prism glasses correct muscle imbalance (if it exists) which cause varying degrees of double vision and can help to manage eyestrain to some capacity. They are often worn in conjunction with or as a replacement for standard glasses and prescribed by an optometrist.
Vision Australia did not prescribe the prism glasses… [KLMN] presented with during her consultation. Vision Australia does not assess for or provide glasses as a support. Vision Australia provides supports with visual aids as an alternative to or in addition to glasses.
…
The daily routines of driving, recognising faces, cooking, and gardening were not raised during … [KLMN’s] consultation. It is therefore assumed that these activities were being managed.
Reading was the only area addressed in the consultation as it directly related to her goal to return to study. Please note her vision for both near and far are all within normal level.
I can only assume … [KLMN’s] glasses were all beneficial to her because at no time were any issues raised regarding any of the glasses brought along to the consultation.
Double vision, different glare adjustments for internal and external, difficulties moving and tracking of eyes and inability to converge eyes are all conditions associated with Grave’s (thyroid) disease in varying degrees. Prism lenses predominantly help with double vision and eye muscle weakness/imbalance.
Vision Australia does not prescribe glasses and in 2008 again … [KLMN] sought to obtain prism glasses from Vision Australia and was directed to a local optometrist for that service.
There were a number of other reports from eye professionals, psychologists and occupational therapists prepared at earlier dates which confirm the vision difficulties that KLMN experiences and the impact on her. Prism lenses have been described as providing considerable assistance to her. Her psychologist has commented that improvements in her ability to see people and objects would assist with her other conditions.
SUBMISSIONS
The Tribunal has set out in some detail the written submissions of the parties to elucidate the issues in this matter.
On 7 July 2017, a solicitor on behalf of KLMN, submitted that she met all the requirements of s 34 of the Act on the following bases:
a. The prism lenses will assist the Applicant to pursue the stated goals of maintaining and improving her physical health, continuing to live in her house, feeling safe in her home, being more active in the community, doing more …[events] and completing her … [studies] are by:
i)Supporting the Applicant to better carry out activities of daily living including household cleaning, gardening, personal grooming, shopping and reading.
ii)Allowing the Applicant to better manage the symptoms of PTSD because she is able to accurately identify people, objects and potential threats, and to build confidence in various environments where she currently experiences significant difficulty in coping;
iii)increasing the Applicant’s social confidence when she can see people’s faces and recognise them, as well as understanding their facial expressions and other non-verbal cues; allowing the Applicant to comply with licensing restrictions the require use of these lenses to drive;
iv)Reducing the factors impacting the Applicant’s stamina and concentration in reading and learning.
b. The prism lenses will assist the applicant to undertake the activities required to complete her … [studies] and her … business.
c. The prism lenses represent value for money, as the only alternative is for the Applicant to be funded for 1:1 support by a worker who can carry out a significant proportion of these activities for her, a cost that would be ongoing and indefinite;
d. The prism lenses have been recommended by numerous clinicians as described …
e. Funding of prism lenses is not an obligation that informal supports would be expected to provide;
f. The support is not most appropriately funded by another system of support.
Most appropriately funded by NDIS
As noted in Fear by his mother Vanda Fear and the National Disability Insurance Agency [[2015] AATA 706] (Fear)
The Act, the Supports for Participants Rules and the Operational Guideline employ a number of terms which are central to their application but which are not defined. So, for example, it may be difficult to draw lines between a disability, and associated functional impairment, and a participant’s health conditions, and it may be difficult to determine, when applying the Act, the Rules and the Guideline to individual circumstances, whose responsibility particular support should be.
a. Having acknowledged the difficulty of interpretation, the AAT stated in Fear that:
Where questions of interpretation arise, it will be necessary to consider the nature and purpose of the support for which funding is sought in light of the objects and purpose of the NDIS.
...
b. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (NDIS Rules) states that (emphasis added):
7.4The NDIS will be responsible for supports related to a person’s ongoing functional impairment and that enable a person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are not directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment.
7.5…
i)Prism lenses are a support related to the Applicant’s ongoing functional impairment and that enable her to undertake activities of daily living.
ii)The diagnosis and treatment of the Applicant’s health condition occurred in 2003, and ongoing medical management is conducted by the health system. There are no further medical interventions possible and there is no longer any relationship between the impairment and medical treatment.
c. The Operational Guidelines state the following differentiation between systems in relation to funding of aids and equipment:
NDIS: aids and equipment which are permanent and for the purpose of improving functioning and related to a participant’s self-care needs (including continence aids and catheters), except for medical or surgical procedures (e.g. the NDIS would not be responsible for providing continence aids and catheters for participants undergoing treatment within hospital settings),
Other parties: aids and equipment which are for the permanent or temporary purpose of regulating or treating medical or health condition or aids and equipment associated with medical or surgical procedures and post-acute recovery.
General hearing, vision and podiatry services where these are unrelated to the participant’s disability is determined in the NDIS access requirements and/or required by other Australians of a similar age without a disability.
NDIS: aids and equipment which are required because of a participant’s functional impairment and required regardless of the activity they are undertaking (e.g. hearing aids, wheelchairs, personal communications devices), but not any requiring medical or surgical procedures.
i)The prism lenses are for improved functioning (in the same way as a hearing aid or wheelchair), and not for the regulation or treatment of a medical or health condition.
d. The Council of Australian Governments, in the document, Principles to Determine the Responsibilities of the NDIS and Other Service Systems,… have agreed the following with regard to the differentiation between healthcare and disability systems
Reasonable and necessary NDIS supports for eligible people include “prosthetics, orthoses and specialist hearing and vision supports (excluding surgical services) where these supports directly relate to a person’s permanent impairment. Other parties are responsible for “general hearing and vision services unrelated to the impact of a person’s impairment on the functional capacity as determined in the NDIS eligibility criteria (e.g. prescription glasses).
i)The prism lenses are vision supports which relate directly to the Applicant’s impairment. The Applicant submits that the use of prism lenses is clearly distinct from the use of prescription spectacles because
ii)the Applicant submits that the use of prism lenses is clearly distinct from the use of prescription spectacles because:
A.Prescription spectacles and contact lenses are provided for adjustment to an individuals acuity, and are often provided at low or minimal costs by state funded schemes, or privately by private health insurance. The objective of these spectacles is to effectively cure the visual acuity problem by applying a lens which corrects the vision.
B.Prism lenses do not correct the functional visual impairment experienced by the Applicant, but provide a means by which she can more effectively and safely access the community and carry out activities related to her goals
C. If an individual’s impairment is such that it can be corrected by the use of prescription spectacles, the individual would not be eligible for supports under the NDIS in relation to this impairment, as implied by the wording of the comparison between “supports directly related to a person’s permanent impairment” and “unrelated to the impact of a person’s impairment on their functional capacity as determined in the NDIS eligibility criteria”. The eligibility criteria require that:
(c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning and undertaking, one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self-care;
(vi) self-management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation.
Relevance of the Victorian Eyecare Service
The Applicant submits that despite the statement made by the VES that there is some availability of lenses through their scheme, it is not relevant to the decision as to whether the lenses are more appropriately funded by the NDIS or not
a. In Young and National Disability Insurance Agency [[2014] AATA 401] the AAT held that:
Whether or not funding is available through other general systems is not the test of whether it is most appropriately funded or provided through the NDIS. The fact that the health system does not fund entirely, or even at all, what is essentially clinical treatment, or some other form of support that is more appropriately funded through the health system, does not make it the responsibility of the NDIS.
b. The same logic applies in reverse. The fact that a system does fund, whether entirely or at all, prism lenses, does not prevent this being the responsibility of the NDIS. This is readily apparent because:
i) Healthcare systems in hospitals fund the provision of wheelchairs, therapies and in-home supports under certain circumstances. The fact that the health care system funding an item in one circumstance and for one purpose does not automatically exclude the funding of a similar item under different circumstances.
ii) As stated in McCutcheon and National Disability Support Agency [[2015] AATA 624] (McCutcheon) (emphasis added):
the fact of the Medicare rebate is available for treatment might suggest that it is more appropriately funded by the health Systems in the NDIS, but not necessarily.
iii)Using the same logic is applied in McCutcheon, the reference in:
A.The NDIS rules to “supports related to a person’s ongoing functional impairment”, and
B.The Operational Guidelines to “aids and equipment which are required because of a person’s functional impairment and required regardless of the activity they are undertaking…
C.The COAG materials to “vision supports”
recognise that although some vision supports are funded under a different system that does not necessarily mean that that system is the appropriate funding mechanism for all vision supports in all circumstances.
18. Further, s 34 of the NDIS Act requires that the CEO is satisfied that the supports are not more appropriately funded through another system (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.
a. The VES is not a universal service, this specifically provided for people experiencing disadvantage … If the VES is not universally available, it cannot be part of a universal service obligation.
b. The VES provides reading, distance, bifocal and progressive lenses to correct visual acuity at varying distances, caused by short-sightedness or long sightedness, which are very common conditions in the general population. The Applicant does not experience either of these conditions, a requirement for lenses is of a different nature.
c. “Only one pair of reading glasses and one pair of distance glasses or one pair of bifocal or one pair of progressive glasses may be subsidised by the VES every two years” … The Applicant requires six sets of lenses to reduce the impact of her functional impairment. The VES is a fundamentally different type of service, with a fundamentally different goal, to the provision of these lenses
d. The fact that the VES supply similar items to those requested by the Applicant does not make the funding of the lenses the responsibility of the VES, nor does it extend to the VES and obligation to provide a visual aid that is outside of the scope of its objectives.
e. The lenses are not required as a reasonable adjustment in any context where this would apply.
Means testing
19. The VES “is a state-wide eye care and visual aid service for people experiencing disadvantage or other barriers to accessing eye care services.” Access to this service relies on the Applicant experiencing disadvantage.
20. The Applicant submits that requiring her to access the necessary vision supports through scheme which is available only to those who have a Health Care Card places a de facto means test on her access to supports which is not applied to other NDIS participants.
…
In a submission also dated 7 July 2017, the NDIA spelled out the history of the matter, the legislative requirements and the Rules as also set out in KLMN’s submission. The NDIA then went on to submit:
11. In the Respondent’s submission, the prism lens glasses the Applicant seeks do not meet the criteria in s 34(1)(c) and (f) of the NDIS Act, and are therefore not a support that are fundable by the Respondent.
The support is more appropriately funded by the health system: s 34(1)(f)
12. In a report dated 6 July 2016, … [Mr GR], optometrist, advised that the Applicant had consulted him to arrange new glasses through the Victorian Eyecare Scheme (VES)… [Mr GR] confirmed the Applicant sought two pairs each (one tinted, one not) of distance glasses for driving, intermediate distance glasses for computer use, and near distant glasses for reading. Mr GR noted the VES would only provide two of the six pairs at a subsidy: single vision distance, and single vision near distance, and the VES would not cover the intermediate distance lenses, or any of the tinted lenses.
13. The Respondent submits that the six pairs of glasses with prism lenses sought by the Applicant are more appropriately funded or provided through other service systems, namely the VES, which is funded by the Department of Health and Human Services. The supports sought by the Applicant relate to her eye health. Paragraph 7.5 of Schedule 1 of the National Disability Insurance Scheme (Support for Participants) Rules 2013 provides that the NDIS will not be responsible for health related activities that aim to improve the health status of Australians, including allied health services, which include optometry.
14. The NDIS Operational Guideline – Planning and Assessment – Supports in the Plan – Interface with Health … provides that parties other than the NDIS are generally more appropriate to fund vision services, including where these required by other Australians of a similar age without a disability, including prescription glasses. The Applicant is 54 years of age and her need for glasses is shared by many Australians of her age.
15. Prescription lenses like those the Applicant seeks support required by many Australians without a disability to help correct visual difficulty. It is therefore a reasonable expectation that the Applicant fund appropriate lenses for herself, including those additional lenses she seeks which are not subsidised by the VES.
16. In its decision in Young and National Disability Insurance Agency [2014] AATA 401 (20 June 2014) the Tribunal identified that s 34(1)(f) of the NDIS Act reflects the statement of the Productivity Commission that the purpose of the NDIS is not to respond to any shortfalls in mainstream services, and found that the supports sought by the applicant were more appropriately funded by the health system. The Tribunal noted that the fact that the supports sought were funded or subsidised under the health system supported its conclusion that they were the responsibility of, and more appropriately funded through, the health system.
17. In the Respondent’s submission, a gap in funding – like that which is present between the glasses the VES will subsidise and the glasses the Applicant feels she requires – is not sufficient justification for funding by the Respondent.
18. The Respondent submits that the prism lens glasses are not appropriately funded by the NDIS.
19. Further, in the Respondent’s submission, the lenses the Applicant seeks are not assistive technology. They are not speciality devices related to the Applicant’s permanent impairment in the same sense as a power wheelchair, for example. There are items used by many Australians without disability to improve vision, and so are most appropriately funded by the health system.
The support does not represent value for money: s 34(1)(c)
20. In a report dated 9 October 2015, Ms MP, orthoptist, recommended that to manage glare, the Applicant should use blinds and curtains within the working area, wear a hat and sunglasses outdoors, and take regular breaks for near tasks. In the Respondent’s submission, the cost of the multiple pairs of glasses the Applicant seeks does not represent value for money, and is unreasonable given Ms MP’s inexpensive recommendations for glare reduction.
21. In his report of 6 July 2016, Mr GR stated that the Applicant felt she required six pairs of glasses. He said she felt she required the pairs VES would not subsidise. Mr GR stated that the Applicant would like tinted pairs as she reported significant issues with glare.
22. The Respondent’s submission, in his discussion of the glasses the Applicant sought, …[Mr GR] was not expressing his professional recommendation of what the Applicant required based on his experience as an optometrist, but rather expressing what the Applicant desired. Mr GR did not suggest that the two pairs of glasses that would be subsidised by the VES inadequately met the Applicant’s vision needs. The Respondent further submits the cost of the claim support is not reasonable, as it is insufficiently is supported by medical opinion.
In a response to KLMN’s submission of 7 July 2017, the NDIA provided a submission dated 14 July 2017 in reply in which it stated:
Means testing and how supports are most appropriately funded
1. At paragraph 20 of the Applicant’s submissions, the Applicant contends that requiring her to access spectacles with prism lenses through the Victorian Eyecare Scheme (VES), which is accessible to those who have a concession card, “places a de facto means test on her access to supports which is not applied to other NDIS participants”.
2. The National Disability Insurance Scheme (NDIS) does not include any income or assets test. The Productivity Commission commented in its Disability and Care Inquiry Report Vol 1 No. 54, 31 July 2011 that it would be both inequitable and inefficient to exclude people from NDIS support solely on the basis of income.
3. The Respondent respectfully disagrees with the Applicant’s submission that linking the Applicant with an alternative service system through which she can access the support she seeks, imposes a “de facto means test” on her.
4. The VES has confirmed it provides spectacles with prism lenses, not just reading distance, bifocal and progressive lenses to correct visual acuity – see the report of …[Mr GR], optometrist, who was engaged to assist the Applicant access glasses under the VES… The Applicant currently has a health care card and is eligible to obtain subsidised spectacles with prism lenses through the VES. In the Respondent’s submission, whether or not the VES is accessible to all Victorians is not relevant to the Tribunal’s consideration of whether spectacles with prism lenses are most appropriately funded by the NDIS. What is relevant is whether the VES is accessible to the Applicant, which it is, and whether the VES provides spectacles with prism lenses, which it does.
5. The Tribunal only has jurisdiction to review the Applicant’s current plan and circumstances, and is not able to make a decision about what the Applicant may need or be able to access in the future. The Applicant currently has a health care card and can access spectacles with prism lenses through the VES.
6. Schedule 1 paragraph 7.1 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (NDIS Rules) provides that the National Disability Insurance Scheme Act 2013 (NDIS Act) limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems, for example as part of the universal services obligation. The Applicant contends at paragraph 18 of her submissions that because the VES is not a universal service, it cannot be part of a universal service obligation as provided by s 34(1)(f) of the NDIS act. The NDIS Act does not require other service systems under which supports can be funded to be universal service systems and the way the Applicant describes
7. The Respondent maintains a submission that the six pairs of spectacles with prism lenses that the Applicant seeks do not meet the criteria in s 34(1) of the NDIS Act for reasonable and necessary supports, as they are more appropriately funded by the health system, and so the Tribunal cannot be satisfied spectacles with prism lenses are more appropriately funded or provided through the NDIS.
Supports already provided
8. At paragraph 2 of the Applicant’s submissions, the Applicant stated that her double vision impacts her ability to read at close distance, including when studying on the computer, which is particularly significant as she is studying….
9. Funding was previously provided by the Respondent for specialist assessment, adaptive technology consultation, which was completed by… [Ms JF], orthoptist. … [Ms JF’s] recommendations were approved by the Respondent and, as at 9 February 2016, funding had been added to the Applicant’s plan for the provision of an Onyx Portable HD CCTV and additional computer monitor to assist her vision difficulties while using the computer…
10. There are therefore already supports in the Applicant’s plan to assist with her near vision. Part 5 of the NDIS Rules provides that a support will not be provided or funded under the NDIS if it duplicates other supports delivered under alternative funding through the NDIS.
11. In giving effect to the objects of the NDIS Act, which include providing reasonable and necessary supports, regard is to be had to the need to ensure the financial sustainability of the NDIS. The Applicant seeks six pairs of spectacles with prism lenses, some of which she can access through the VES, and others she could be reasonably expected to fund herself, especially in circumstances where the Respondent has provided other supports to help counter the Applicant’s vision difficulties, and where there are lower cost options to reduce glare, for example. As previously submitted, the Respondent does not consider the spectacles the Applicant seeks represent value for money, and when considering the need to ensure the financial sustainability of the NDIS, they should not be funded by the NDIS.
CONSIDERATION
KLMN’s double vision and her consequent lack of confidence in driving more than a short distance or in traffic, taking public transport and her concerns about people wrongly assessing her when she stares at them trying to identify them when in public places or taking public transport have a major impact on her. Her psychologist, various optical practitioners and her planners at the NDIA have all identified the impact on KLMN of her vision problems. Her psychologist has described the vision problems as exacerbating the PTSD symptoms from which she also suffers.
KLMN, in her statement, identified the difference prism lenses made when first prescribed. The Tribunal accepts that the prism lenses make a big difference to her ability to do a range of activities. The Tribunal also accepts the submission and evidence that there is nothing more that can be done medically to improve her vision problems. There is evidence before the Tribunal that KLMN does not have the usual problems that are often faced as people age of being near or far sighted and needing spectacles to deal with those issues.
In determining whether the prism lens glasses are reasonable and necessary supports, the Tribunal is required to consider the relevant legislation and guidelines. It is also required to look at KLMN’s individual circumstances in determining whether a support is reasonable and necessary as was stated by the Full Court at paragraph 4 in the NDIA's appeal against McGarrigle:
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 satisfied that the prism lenses would assist KLMN to meet her goals of improving her health, being more active in the community and her education goal. She can be more independent, feel more confident about driving, be better able to undertake personal grooming and a range of other positive benefits. The Tribunal finds that the provision of prism lenses will assist KLMN to pursue the goals, objectives and aspirations included in her statement of goals and aspirations. The Tribunal is satisfied that s 34(1)(a) of the Act is met.
Section 34(1)(b) of the Act requires that the support will assist KLMN to undertake activities that facilitate her social and economic aspirations. The Tribunal is in no doubt that the provision of prism lenses in anti-glare and clear lightweight frames will assist her in her social and economic activities. The Tribunal finds that s 34(1)(b) of the Act is met.
Section 34(1)(c) of the Act requires the support be value for money in that the costs of the support are reasonable, relative to the benefits achieved and the cost. KLMN’s plan resulted in almost $30,000 in expenditure for various supports (see 2016/1118), many of which involved a support person taking her to activities rather than KLMN travelling independently by car and/or by public transport. The cost of the prism lenses represents a minor component of the cost of the total plan and would, in the Tribunal’s view, more than pay for themselves in reducing the amount of reliance KLMN would have on support persons and taxi usage. That support is currently costing far more than the cost of the prism lenses. The Tribunal is of the view that the prism lenses are an important part of maintaining and enhancing KLMN’s independence in terms of transport cost and the expenditure on support persons for activities of daily living such as shopping or being taken to community activities.
Rule 3.1 provides further guidance on whether a support represents value for money. There are no comparable supports which would achieve the same outcome at a substantially lower cost according to the evidence of the optometrists and other eye experts who have provided evidence (Rule 3.1(a)). There is evidence that the support will improve the life stage outcomes and be of long-term benefit for KLMN (Rule 3.1(b)). In relation to Rule 3.1(c), the Tribunal forms the view based on the evidence provided that having appropriate lenses is likely to reduce the costs for things like transport support and the need for a support person to take KLMN to some of her nearby activities. The Tribunal is satisfied that Rule 3.1(c) is met.
In relation to Rule 3.1(d) the evidence indicates that there is no alternative to the prism lenses to assist KLMN to reduce double vision. The Tribunal is satisfied Rule 3.1(d) is met. Rule 3.1(e) does not apply to this matter. In relation to Rule 3.1(f), the evidence indicates that KLMN’s independence will be enhanced and is likely to reduce her need for other kinds of support. Her ability to drive herself, take trains and buses rather than taxis and generally feel better about herself is linked to having the appropriate prism lenses for the relevant task at hand.
The Tribunal prefers KLMN’s submissions over those of the NDIA in relation to s 34(1)(c) of the Act. The Tribunal is satisfied that s 34(1)(c) of the Act is met.
Section 34(1)(d) requires the funding of the support is likely to be effective and beneficial for the participant having regard to current good practice. For the reasons described above in relation to the earlier sections of s 34(1), the Tribunal is satisfied that the provision of the prism lenses would be effective and beneficial for KLMN, particularly as there is no medical treatment that would assist her.
Section 34(1)(e) considers if funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide. KLMN is a single person with adult children who have children of their own. It is not reasonable to expect them to provide the prism lenses.
In relation to s 34(1)(f), KLMN’s solicitor’s submission and that of the NDIA differ. The VES scheme is targeted at persons on low incomes which include KLMN who relies on a disability support pension and a healthcare card. The documentation indicates that the VES does provide limited assistance for someone like KLMN. Initial evidence seemed to suggest that they did not do so but later evidence from Mr GR indicates that they will provide one or two pairs of clear prism lenses and frames at less than full cost.
KLMN’s solicitor submitted that access to a program like that provided by the VES which is only available to those on lower incomes invalidates the NDIS philosophy and legislation which is that it is not means tested. The NDIA submitted that whether the VES is available to all Victorians is irrelevant to whether KLMN’s prism lenses should be funded by the NDIS.
The Tribunal accepts that if it were dealing with someone on a higher income for the same condition that KLMN suffers from, they would clearly not have access to the VES. The evidence indicates that it would take many years for KLMN to obtain the range of lenses she needs. Furthermore, the VES will not provide anti-glare prism lenses which it appears are highly desirable for KLMN given her extreme light sensitivity.
KLMN submitted that the NDIS funds wheelchairs as does the health system. Similarly the guidelines indicate that items used in daily living are also not funded. The Tribunal finds that analysis useful and appropriate.
The Tribunal is not satisfied that the VES can provide the six sets of prism lenses required by KLMN, particularly the anti-glare coatings and the number of sets of frames and lenses she requires. The Tribunal believes that the four pairs that are not accessible through the VES should have been funded by the NDIA given how crucial they are to allowing KLMN some assistance with her disability. However, in light of McGarrigle, the Tribunal finds that the six pairs are all necessary and reasonable supports, and should therefore be funded as part of KLMN’s now expired plan.
The scale of the spending on the prism lenses, in this individual case, is minor next to the cost of the other reasonable and necessary supports provided in KLMN’s plan. The Tribunal is satisfied that s 34(1)(f) of the Act is met in this particular case.
The Tribunal finds that KLMN’s now expired plan should have included funding for the six pairs of prism lenses. It also notes the NDIA’s comments that it is not bound to implement this in the current plan but hopes that the issue is able to be resolved if it remains an outstanding issue in KLMN’s current plan.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that the respondent should have funded prism lenses for KLMN in her now expired plan.
I certify that the preceding 52 (fifty-two) 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 on the papers: 28 August 2017 Solicitors for the Applicant: Villamanta Legal Service Solicitors for the Respondent: National Disability Insurance Agency
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