KXHC and National Disability Insurance Agency
[2024] AATA 2277
•4 July 2024
KXHC and National Disability Insurance Agency [2024] AATA 2277 (4 July 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/8053
Re:KXHC
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member K Buxton
Date:4 July 2024
Place:Brisbane
The decision under review is set aside and the decision is remitted for reconsideration with a direction that the Applicant’s approved statement of participant supports specifies:
a)From the date of this decision, funding for a passenger lift in the total sum of $46,789 (being $7,594 for the provisioning of the space and $39,195 for supply and installation of the lift); and
b)From the date of this decision, funding (as specified in the terms of partial agreement signed by the parties on 13 June 2024) for:
a.Core Daily Activities: 25 hours per week at the Weekday Daytime rate for Assistance with Self-Care Activities;
b.Capacity Building Daily Activities: Psychology 24 hours total;
c.Assistive Technology:
i.$2,746.00 for a second pair of second skin orthotics;
ii.4.5 hours (total) therapeutic support in relation to paragraph 1.3(a) above;
iii.$8,089.90 (per year) for other orthoses; and
iv.9 hours (per year) therapeutic support in relation to 1.3(c) above;
d.Home Modifications (pricing based on a series of 'Authority for Variation to Contract' provided by the Applicant on 5 June 2024):
i.Grab rail in the powder room: $300
ii.Grab rail and handheld shower hose in the main bathroom: $900
iii.Non-slip bathroom floor tiles: $976
iv.Weight bearing shower seat: $2,066
v.Increased width to hallways to enable walker access to powder room and main bathroom: $11,200
vi.Powder door frame width extended to 920mm: $79
vii.Bathroom door frame width extended to 920mm: $965
viii.An additional bedroom light switch: $45
ix.Standard Cambridge stair lighting: $1,212
x.All internal doors width extended to 920mm: $3,740
e.Capital Supports - Assistive Technology: Existing funding for Manual Wheelchair to be changed to a price range from $1,969 to $12,000.14.
c)That the reasonable and necessary supports otherwise specified be replicated until the reassessment date.
............................[SGD]...............................
Senior Member K Buxton
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – where the Applicant is an accepted participant of the National Disability Insurance Scheme – decision under review set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Cases
LZMX and National Disability Insurance Agency [2021] AATA 378
McGarrigle v National Disability Insurance Agency [2017] FCA 308Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
REASONS FOR DECISION
Senior Member K Buxton
4 July 2024
INTRODUCTION
The Applicant is an eleven-year-old girl who, with the support of her parents, has applied to the Tribunal, pursuant to section 103 of the National Disability Insurance Scheme Act 2013 (“the NDIS Act”), for review of a decision of the National Disability Insurance Agency (“the NDIA”) dated 6 September 2022.
The Applicant lives with Cerebral Palsy and vascular vision impairment. She resides with her parents and younger brother in her parents’ newly constructed home in South Australia. The Applicant has sought funding for home modifications included during the construction of the home in order to meet her disability-related needs, and for other various supports. In broad terms, this review concerns the NDIA’s decision not to specify funding for those supports.
On 3 June 2022 the NDIA approved a statement of participant supports (SPS) for the Applicant under subsection 33(2) of the NDIS Act for a two-year period. The SPS specified total funding of $109,831.16 but did not allow for the home modifications and other supports mentioned above to be funded as reasonable and necessary supports pursuant to subsection 34(1) of the NDIS Act. Following an internal review process the reviewable decision was then made on 6 September 2022. That decision varied the 3 June 2022 decision to specify total funding for supports of $142,774.52 for a two-year period, including for some, but not all, of the requested additional supports and it was from this decision that the Applicant applied to the Tribunal for review.
A hearing took place on 15 May 2024. The Applicant was represented by her mother and counsel appeared for the Respondent. Prior to the hearing the Respondent lodged with the Tribunal a joint tender bundle containing all relevant information provided by both parties in this case. In reaching its conclusion, the Tribunal has considered the documents provided by the Respondent under subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), together with the evidence set out in the bundle, which has been marked in the proceeding as exhibit one.
At the commencement of the hearing, the Respondent submitted that, in addition to the funded supports in the reviewable decision, funding for the following supports were also reasonable and necessary, but had not yet been included in the Applicant’s SPS:
(a)Core Daily Activities: 25 hours per week at the Weekday Daytime rate for Assistance with Self-Care Activities;
(b)Capacity Building Daily Activities: Psychology 24 hours total;
(c)Assistive Technology:
(i)$2,746.00 for a second pair of second skin orthotics;
(ii)4.5 hours (total) therapeutic support in relation to paragraph 1.3(a) above;
(iii)$8,089.90 (per year) for other orthoses; and
(iv)9 hours (per year) therapeutic support in relation to para (c)(iii) above;
(d)Home Modifications (pricing based on a series of 'Authority for Variation to Contract' provided by the Applicant on 5 June 2024):
(v)Grab rail in the powder room: $300
(vi)Grab rail and handheld shower hose in the main bathroom: $900
(vii)Non-slip bathroom floor tiles: $976
(viii)Weight bearing shower seat: $2,066
(ix)Increased width to hallways to enable walker access to powder room and main bathroom: $11,200
(x)Powder door frame width extended to 920mm: $79
(xi)Bathroom door frame width extended to 920mm: $965
(xii)An additional bedroom light switch: $45
(xiii)Standard Cambridge stair lighting: $1,212
(xiv)All internal doors width extended to 920mm: $3,740
(e)Capital Supports - Assistive Technology: Existing funding for Manual Wheelchair to be changed to a price range from $1,969 to $12,000.14.
The Applicant, through her mother, accepted that 24 hours of psychology care was reasonable and necessary, and did not wish to contend for the 50 hours previously sought. The parties then indicated their intention to sign partial terms of agreement, under section 42C of the AAT Act, to the effect that the additional supports accepted by the Respondent as reasonable and necessary, but not yet funded, be specified in the Applicant’s SPS. In these circumstances the review proceeded on the basis that evidence would only be led in relation to supports in two remaining categories, being certain complex home modifications for which funding had not been agreed by the Respondent, and a therapeutic subscription program for the iPad known as LusioMATE.
On 13 June 2024 the parties submitted partial terms of agreement signed in accordance with section 42C of the AAT Act and asked that the Tribunal give effect, in its decision, to each of the items agreed be specified in the Applicant’s SPS. The Tribunal decided that it would be appropriate to give effect to the agreement of the parties and, therefore, the agreed supports are reflected in the Tribunal’s decision.
In addition to the LusioMATE program, which was not accepted by the Respondent as reasonable and necessary, the remaining complex home modifications to be considered by the Tribunal were:
(a)a passenger lift;
(b)full height tiling in the main bathroom and powder room;
(c)category 2, 20mm stone with 16mm shadowline in lieu of included 32mm laminate surface in the main bathroom;
(d)upgrade range floor and wall tiles including feature tile to elevation ‘B’ above the mirror in the powder room;
(e)two category 3 handles in lieu of category 1 handles in powder room and main bathroom;
(f)basin mixer tap in matte black in powder room and main bathroom;
(g)wall-faced toilet suite with concealed plumbing in cistern in lieu of included close coupled suite in powder room and main bathroom;
(h)soft close hinges in powder room and main bathroom drawers;
(i)1700mm wall faced freestanding bathtub (in lieu of the standard 1675mm inset suite) in main bathroom;
(j)additional right-side handrail in the powder room; and
(k)handrail on stairs and landing.
For the reasons which are set out below, the decision under review is to be set aside and the matter remitted to the Respondent for reconsideration in accordance with the direction that the Applicant’s SPS specify funding for the passenger lift together with the supports identified in the section 42C terms of agreement. The Tribunal is not satisfied that it is proper to specify funding for the other home modifications, or the LusioMATE program.
RELEVANT LEGISATION
The NDIS statutory framework
The objects and principles of the NDIS Act are set out in Part 2 of the NDIS Act. Subsection 3(1) of the NDIS Act relevantly includes:
(1) The objects of this Act are to:
…
(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; and
(e)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f)facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(g)promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community;
…
Section 4 of the NDIS Act sets out the General Principles guiding actions under the NDIS Act and they relevantly include:
(1)People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
(2)People with disability should be supported to participate in and contribute to social and economic life.
(3)People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(4)People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5)People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
…
(8)People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives.
…
(11) Reasonable and necessary supports for people with disability should:
(a)support people with disability to pursue their goals and maximise their independence; and
(b)support people with disability to live independently and to be included in the community as fully participating citizens; and
(c)develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
…
(15)In exercising their right to choice and control, people with disability require access to a diverse and sustainable market for disability supports in which innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of those supports is promoted.
(16)Positive personal and social development of people with disability … is to be promoted.
Section 17A of the NDIS Act contains principles relating to the participation of people with disabilities including:
(1)People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.
…
(3)The National Disability Insurance Scheme is to:
(a)respect the interests of people with disability in exercising choice and control about matters that affect them; and
(b)enable people with disability to make decisions that will affect their lives; and
(c)support people with disability to participate in, and contribute to, social and economic life.
The functions of the agency are set out in section 118 of the NDIS Act and include the following relevant functions:
(1)The Agency has the following functions:
(a)to deliver the National Disability Insurance Scheme so as to:
(i)support the independence, and social and economic participation, of people with disability; and
(ii)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(iii)ensure that the decisions and preferences of people with disability are respected and given appropriate priority; and
(iv)promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and inclusion in the community;
…
Reasonable and necessary supports in participant’s plans
Chapter Three of the NDIS Act deals with individual plans under which reasonable and necessary supports will be funded for participants in the scheme. Section 31 of the NDIS Act sets out the principles relating to the preparation, review and replacement of a participant’s plan. These principles are generally reflective of the General Principles set out in section 4 and expressly include, amongst other things, that these processes should:
(a) Be individualised; and
(b)Be directed by the participant; and
…
(j)Facilitate tailored and flexible responses to the individual goals and needs of the participant; …
Section 33 of the NDIS Act deals with the contents of a participant’s plan. Subsection (1) sets out the requirements with respect to the participant’s statement of goals and aspirations, including that they are prepared by the participant. Subsection (2) applies to the statement of participant supports which must also be included in the plan, and which must be prepared with the participant and approved by the CEO. Subparagraph 33(2)(b) provides:
(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:
…
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
…
Subsection 33(5) of the NDIS Act states that the matters to which the CEO must have regard in deciding whether or not to approve the statement of participant supports are as follows:
(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.
Subsection 34(1) of the NDIS Act provides, with respect to reasonable and necessary supports, as follows:
(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.
The term “support” is not given a meaning in the NDIS Act. A “support” is defined in section 9 of the NDIS Act as including “general supports”, being those defined in subsection 13(2) as the kind of supports provided by the Agency itself. However, the term “support” and the phrase “reasonable and necessary” are not further defined in the NDIS Act. In McGarrigle v National Disability Insurance Agency [2017] FCA 308 at 91 (McGarrigle), Mortimer J observed, with respect to those words:
[91] Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (“the Rules”) made pursuant to subsection 35(1) of the NDIS Act provides further guidance with respect to the assessment of reasonable and necessary supports that will be funded. Pursuant to section 209 of the NDIS Act, the Rules are a legislative instrument and are therefore binding to the Tribunal. In this case the relevant Rules include:
Value for money
3.1In 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:
iii.the comparative cost of purchasing or leasing the equipment or modifications; and
iv.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.
3.3In 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.
General criteria for supports
5.1A 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.
20.The NDIS Operational Guidelines provide detailed policy to assist the NDIA in exercising its functions and powers in making decisions relating to the approval of specific types of supports in participant plans. Although this policy is not binding upon the Tribunal, it should be applied by the Tribunal unless it is inconsistent with the provisions of the NDIS Act: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
21.In addition to the general guidelines for supports, additional relevant guidelines are those published by the Respondent under the heading ‘Home Modifications’. The following is a summary of the key aspect of the guidelines relevant to the funding of such a support:
a.It must relate to the participant’s disability, which contemplates how the home modification will help them to do things they find difficult due to their disability, or whether the home modification will result in the participant needing less help.
b.It needs to help the participant pursue their goals (which considers how their disability prevents them from doing so) and participate more in social or work life, such as by enabling them to do things more independently.
c.It should do what the participant needs it to do or make things better for them by helping them to do more things themselves, which will demonstrate that it is effective and beneficial for the participant.
d.It must represent value for money, compared not only with the benefits the participant will derive from the home modification, but also with other supports that would achieve the same outcome. Considerations include:
i.the age and condition of the home, if there are structural problems that wouldn’t support the modification, or if the property needs a lot of work to make it accessible;
ii.how the home modification compares to the cost of moving to a more accessible home;
iii.if the home modification will help reduce the risk of fatigue or injury to the participant or to a carer.
e.Modifications such as extensions that make a home bigger will not generally be funded.
If the participant is thinking of buying or building a house and seeks funding for disability related home modifications, the operational guidelines state:
You should look for homes or designs that suit your needs, or that need minimal or no modifications. You should think about design choices that are suitable and accessible for you and consider getting professional advice. We can’t give you advice on your house designs, but you should look at the Livable (sic) Housing Australia Design Guidelines. These guidelines can help you design your home so it meets your needs.
We generally don’t fund modifications you wouldn’t have needed with appropriate site or home selection.
For us to fund modifications to a new home, a home modification assessor needs to assess your disability needs. This is an occupational therapist who is qualified to recommend more detailed home modification supports. They’ll recommend the specific supports that will work for you. We have assessment templates on our website.
For example, you might need:·large rooms and wide corridors for larger circulation spaces
·accessible benchtops, power outlets and light switches
·a level home entrance or one with minimal steps.
Once you’ve considered all your options and decided on your design, we may be able to fund the modifications we have approved for your new home. They will need to relate to your disability and meet the other NDIS funding criteria. In this situation, we would fund the costs of changing a standard feature to a disability specific feature.
ISSUE AND DECISION UNDER REVIEW
The issue to be decided by the Tribunal is whether funding for the supports are reasonable and necessary supports pursuant to section 34 of the NDIS Act:
(a)LusioMATE subscription; and
(b)Various complex home modifications.
The Applicant submitted that the criteria of subsection 34(1) of the Act were satisfied with respect to the provision of funding for the LusioMATE subscription and the home modifications sought. The Applicant has relied on the evidence provided by her mother in writing and during the hearing, and in the specialist reports, to demonstrate that the home modification supports would assist her to pursue her goals, assist her undertake various activities and is likely to be beneficial to her. The Applicant submitted that both the LusioMATE and the home modifications met all the requirements of subsection 34(1), including that they provided value for money.
The Respondent submitted that funding for these items was not reasonable and necessary and, in particular, that the passenger lift would not provide value for money, having regard to subparagraph 34(1)(c) (and Support Rule 3.1), and that the LusioMATE would not be effective and beneficial, having regard to subparagraph 34(1)(d) (and Support Rule 3.2), would not provide a benefit proportionate to the cost and would not assist the Applicant to meet goals in a way that could not otherwise be achieved through her existing funded supports.
CONSIDERATION
The Applicant’s participant plan approved in September 2022, lists the following goals:
Short-term Goals:
KXHC’s family would like her to develop her physical and gross motor skills.
KXHC’s family would like her to develop her self-care skills.
Medium or long-term goals:
KXHC’s family would like her to develop her fine motor skills.
KXHC’s family would like her to develop emotional regulation skills.
KXHC’s family would like her to increase her engagement in social and community activities.
During the hearing the Applicant’s mother gave sworn evidence. Ms Singh, an occupational therapist who prepared a report at the request of the Respondent, also gave sworn evidence. The joint hearing bundle contained statements from a number of allied health professionals who have treated the Applicant over time and this evidence, together, informed the Tribunal as to the complex needs of the Applicant and the various therapies and supports from which she regularly benefits.
LusioMATE
In relation to the LusioMATE, the Applicant relied on the written evidence of Ms Chloe Wegener, the Applicant’s former treating physiotherapist, being an undated letter to the Respondent. In that letter, Ms Wegener described the LusioMATE as a wearable gaming controller that motivates clients to do rehabilitative movements prescribed by their therapists and recommended this as a support for the Applicant. Ms Wegener noted that the annual subscription cost of $1,200 plus GST would provide a therapeutic modality tool that:
(a)engages and motivates players to complete their movement goal exercises;
(b)enables therapists to monitor client progress, tweak existing therapy programs for clients and prescribe new therapy programs;
(c)increases the efficacy of any face to face therapy by extending it into the client’s day to day life and routine; and
(d)can be used for both lower limb and upper limb therapy.
Ms Wegener was not required by the Respondent for cross-examination and the Respondent did not seek to challenge her evidence directly. However, the Respondent noted that the letter from Ms Wegener recommended the LusioMATE on the basis that it may be beneficial (rather that reasonable and necessary) for the Applicant and further noted that her treating physiotherapists since Ms Wegener had not recommended the support.
The Applicant’s mother stated in her oral evidence that the LusioMATE had first been recommended to the Applicant in 2020 when Ms Wegener was the Applicant’s treating physiotherapist. She described the therapy aid as a subscription to an App to be used on an iPad that enables the Applicant to play games and undertake therapy at the same time. When the Applicant has a break from therapies, such as in the holidays (due to funding) the Applicant could use the game to continue with therapy. The App presents as a game but actually required the Applicant to undertake sit to stand and other movements while trying to beat the computer. The Applicant has trialled the LusioMATE during therapy sessions.
The Applicant’s mother stated that the existing physiotherapy happens at school during the day and that the Applicant does not do much at home. She has a vibration plate at home but they don’t do therapy at home as the Applicant is too occupied with other things. The Applicant’s mother stated that the Applicant could use this aid outside of her normal hours of therapy, at home, as a fun therapy activity. The Applicant’s mother accepted that other physiotherapists with whom the Applicant has worked since 2020 had not recommended the aid and she stated that they do not know about it. She described LusioMATE as an “NDIS approved programme” and stated that, if it would be of benefit to the Applicant, she did not understand why it could not be funded. The Applicant is undertaking physiotherapy and working towards her goals, including to be walking independently. The Applicant’s mother stated that the Applicant would enjoy playing the App as a game, she could use it whilst the Applicant’s mother was undertaking chores, and she would not have to sit with the Applicant while she is using it.
The evidence demonstrates that the LusioMATE would be a welcome addition to the therapy protocol for the Applicant and that her family would benefit from the convenience of therapy that presents and play and can be undertaken independently of a parent. However, the Applicant’s renewed SPS now includes 25 hours a week of support worker assistance and a support worker may be able to assist the Applicant with home-based therapies or assist with self-care tasks such as meal preparation that may free up the Applicant’s parents to assist her with her therapies. Should the Applicant’s family choose, they can subscribe to LusioMATE with their own resources. However, at present LusioMATE appears to duplicate the currently funded supports of physiotherapy and support workers and there is insufficient evidence that it provides either value for money or beneficial outcomes that cannot be provided by therapy alone. That the Applicant’s current physiotherapists are not recommending LusioMATE is consistent with the conclusion that it is not a reasonable and necessary support for the Applicant at this time. The requirements of subsection 34(1) have not, therefore, been satisfied.
Home Modifications – general
The Applicant provided various documentary evidence in relation to the home modification supports, including:
a)Copy of the construction contract with Burbank homes for the new family residence dated 31 December 2020;[1]
[1] HB, p. 28.
b)Complex home modification assessment template completed by Ms Tamra Bogle, Occupational Therapist, dated 12 February 2021;[2]
[2] HB, p. 39.
c)Statements from the Applicant’s mother;[3]
[3] HB, p. 92; p. 435.
d)Quotations for the supply and installation of the passenger lift and other modifications, including the accepted quote from Adelaide lifts in the sum of $39,195, which was the least expensive of a number of quoted options; and
e)Report from Dr Rebecca Holst, Consultant Paediatrician, noting that the Applicant required a lift to safely access parts of her home and providing her support for this funding.
34.The Respondent provided a report from Ms Singh, Occupational Therapist,[4] dated 1 November 2023, in which she reported on her assessment of the Applicant’s home modification needs. The report assessed the space, rather than the Applicant herself, and in arriving at her views Ms Singh consulted with Mr Short, a building consultant with extensive experience, about costs and options for various home modifications. She has set out his view and her own in her report.
[4] HB, p. 460.
35.The Applicant lives in the family home with her parents and her younger brother. The home previously occupied by the family was on the same site and was demolished to make way for a new home that was larger and incorporated various features that enhance liveability for the Applicant. The cost of a number of these features, including wider doorways and hallways, bathroom features and some strengthened construction materials, have now been accepted by the Respondent as reasonable and necessary.
36.The home previously on the site was a modest three-bedroom home estimated to have been constructed in the 1950s or 1960s. The Applicant’s mother gave sworn evidence that the home measured about 140m2 and consisted of one bathroom and three small bedrooms, each measuring about 3m by 3m. She further stated that she and the Applicant’s father had purchased the property in 2011 as their first joint home, prior to having children. The reasons for selecting the location at the time included access to schools, access to the city, and it being a good area for children.
The hearing bundle contains an undated document entitled “Home Modifications for NDIS with Burbank Homes build – costings”[5] which was accepted, during the hearing, to be a record of information provided to the Applicant’s family by their builder in relation to various disability-specific costs that had been incurred during the construction of the new home. The total amount of these costs when correctly added is $77,345 (the document erroneously stated that the total was $66,145). The total included provision for some items which the Applicant now accepts are not reasonable and necessary supports, for some items in dispute and for some items that the Respondent has accepted should be specified in the Applicant’s SPS. The breakdown is for the passenger lift (discussed later in these reasons), costing $7,594 for provisioning of the space and $39,195 for supply and installation; a total of $3,751 for the accessible powder room and $6,732 for the accessible bathroom (without the inclusion of some grab rails, the costings for which have been redacted from the document in the bundle), $11,200 to allow for construction of hallways that were 500mm wider than the standard specification, $3,740 allowance for door panels, $3,876 for a concrete slab to allow access to the Alfresco door and $1,257 for electrical needs.
[5] HB, p. 90.
Some items specified in the document were not the subject of consideration during the hearing because the Respondent had accepted that funding for these items should be specified in the Applicant’s SPS. These included some items in both the accessible powder room downstairs and in the accessible bathroom upstairs, together with widening of the corridors throughout the house.
In her report, Ms Singh was unable to definitively answer the question whether this home could have been renovated (rather than rebuilt) in a way that would meet the Applicant’s disability-related needs. The experienced building consultant who advised Ms Singh on various technical aspects of her report is recorded as having stated that the home, being built in the 1950’s (although other evidence suggests it was the 1960’s) would have internal load-bearing walls and narrow doorways, making the expansion of the access and circulation points of that home, difficult. The costs of doing so were estimated by the consultant between $60,000 and $120,000 to undertake all necessary work, including the modifications to the bathroom. This would have resulted in a modified three-bedroom home with one bathroom. It would not have had the additional spaces for storage and therapy identified as necessary by the Applicant’s family and in the form prepared by Ms Bogle.
40.There was no challenge by the Respondent to the evidence that the original home was not suitable for the Applicant’s needs, and that it was not a suitable candidate for appropriate modification. The age and method of construction, together with size of the rooms, meant that corridors and circulation space could not be modified and the Applicant’s therapy needs could not be met easily and, even if the house could have been modified to some extent, the cost of doing so would have been significant. The Respondent has already determined that aspects of the modifications to the newly built home satisfy subparagraph 34(1)(c) of the NDIS Act and could not have arrived at that decision if there were any genuine controversy about the funding of supports in that home. The Tribunal has arrived at the same conclusion.
41.There were a number of home modifications that the Applicant pressed until the hearing but, through her evidence, the Applicant’s mother accepted either were not reasonable and necessary supports (or these would be included in the section 42C terms of agreement). These supports were identified in the report of Ms Singh,[6] and are listed at paragraph 24 of the Respondent’s statement of facts, issues and contentions:[7]
[6] HB, p. 477.
[7] HB, p. 8.
(a)Full height tiling in the upstairs bathroom: The Applicant’s mother did not dispute that this was a choice exercised by the family and that it was their preference not to have a shower curtain. She stated that it would be easier to access as an open shower, and that a shower curtain would minimise splash if installed but may be more of a hinderance for the Applicant with her walker and sitting in her wheelchair. The Applicant’s mother also accepted that any potential for mould, which could trigger the Applicant’s asthma, could be remedied by ensuring a shower curtain was kept clean and through ventilation using the room’s extractor fan and window. Whilst the Applicant’s mother did not expressly concede that this was not a reasonable and necessary support, she did not seriously contradict the expert opinion of Ms Singh that this was not a disability-related support.
(b)Category 2 tiling in lieu of laminate and upgraded floor and wall tiles: The Applicant’s mother accepted that her choice of wall tile had no connection with the Applicant’s disability. She stated that non-slip floor tiles were related to the Applicant’s disability and the selected tiles had been chosen to be used in both the ensuite and the main accessible bathroom. When questioned during the hearing, Ms Singh stated that she thought non-slip tiles may be reasonable and necessary having regard to the Applicant’s disability. However, the fact that the family has two young children who may both benefit from non-slip tiles was also accepted by the Applicant’s mother. The evidence about whether the Applicant’s SPS includes funding for that amount is unclear, although it may be that this is the agreed support, identified in paragraph 5(a)(iii) of these reasons, which is now included in the reviewable decision as re-made following the section 42C agreement. There is insufficient evidence available to the Tribunal to conclude the funds additional to those already specified in the SPS are required to allow for non-slip tiles.
(c)Handles in the powder room and bathroom: There was no evidence presented to the Tribunal about the disability-related need for upgraded handles.
(d)Mixer tap: The Applicant’s mother accepted that there was no cost increase arising from the desire to install a mixer tap rather than conventional dual taps and therefore no requirement for funding.
(e)Wall faced toilet: The Applicant’s mother accepted that the Applicant did not have a history of touching things at the back of the toilet and that it was therefore unlikely (although it was possible) that she may reach to touch plumbing fixtures if not closed to the wall. The Applicant’s mother did not identify any risk to the Applicant even if she did touch the plumbing fixture. There is insufficient evidence before the Tribunal to demonstrate that funding for this support would relate to the Applicant’s disability.
(f)Soft close hinges in the powder room and bathroom: These were not installed because there were no drawers in these rooms and therefore no requirement for funding.
(g)Bath: The Applicant’s mother stated that the Applicant enjoys a warm bath to relax her muscles and that they selected a bath that was easy for her to grip using her muscle strength. However, she accepted that the family would probably have installed a bath in a family bathroom in any event and that both children use the bath. Further, the amount sought was for an upgrade to a slightly longer freestanding bath when compared to the inset bath included in the building contract. There is insufficient evidence available to the Tribunal to conclude the funds additional to those already specified in the SPS are required to allow for an upgraded bath.
(h)Handrail on the stairs: The Applicant’s mother accepted that the Applicant does not use handrails to climb stairs and that, if the industry standards required the installation of handrails in the construction of a two-storey dwelling, these would not be a disability-related cost. The Respondent identified the relevant building code requirements during the course of the hearing.[8]
[8] Part 11.3.5 of the National Construction Code 2022: Respondent’s Statement of Facts, Issues and Contentions, para 45.
42.Ms Singh’s oral evidence about these supports accorded with the opinions expressed in her report and the Tribunal accepts that largely uncontroverted evidence, together with the concessions made by the Applicant’s mother during the hearing. As such the Tribunal notes that there was no evidence that any of these minor home modifications were reasonable and necessary supports for disability-related purposes and it is not necessary to further consider these issues.
43.The following evidence was given in relation to one final support, being a handrail in the accessible powder room:
(a)The Applicant’s mother stated that one handrail had been installed in the powder room and she did not think the cost had been included in the Applicant’s SPS.
(b)Ms Singh recommended a second handrail, differently positioned on the opposite side of the toilet with a drop-down function.[9]
[9] HB, p. 469.
(i)As the current rail was providing “amazing” support for the Applicant, the Applicant’s mother stated that they did not have a current intention to proceed with the installation of the additional rail recommended by Ms Singh.
(j)The installed rail cost $300.[10]
[10] HB, p. 90.
The evidence establishes a single need for the rail in the powder room to facilitate the Applicant’s independence and that the rail which is effective and beneficial has been installed at the cost of $300. This agreed support is now included the section 42C terms of agreement and will be reflected in the Tribunal’s decision.
Home Modifications – passenger lift
In relation to the most significant home modification sought, the total cost of the passenger lift is $46,789, comprised of $7,594 for provisioning of the space and $39,195 for supply and installation. The evidence makes clear that the Applicant now lives in a two-storey home and requires a lift to access the upstairs part of her home, which includes her bedroom, modified bathroom and a rumpus area. Occupational therapists Ms Bogle and Ms Singh both accepted that the Applicant cannot use stairs and the Tribunal accepts this clear evidence. Therefore, if the eleven-year-old Applicant is to independently access any part of the upstairs level of her family home, she requires a lift to safely do so.
The Respondent contended that the process by which the Applicant came to live in a two-storey home was relevant to whether the lift is a reasonable and necessary support. The Respondent submitted that the Applicant, through her family, made a “lifestyle choice” to build a two-storey home on the site of their former home, and that they committed to this design before consulting with the NDIS and obtaining funding. The Respondent submits that the lift cannot, therefore, be funded.
In order to consider the Respondent’s contentions, and determine whether funding for a lift is a reasonable and necessary support that meets the requirements of subsection 34(1) of the NDIS Act, it is necessary to traverse the available evidence about the previous home occupied by the Applicant and her family and their decision to re-build a two-storey home, with its layout and inclusions, on the same site and their previous single-storey home.
48.In the complex home modification assessment template, prepared after the Applicant’s family had engaged the builders to construct their new home, Ms Bogle made the following observations:
(a)The Applicant’s current home set up does not allow access for the Applicant to learn independence with her self-care skills;[11] and
[11] HB, p. 41.
(b)The Applicant does not have enough circulation space to use appropriate equipment. Her current home has small rooms and no accessible bathroom and toilet;[12]
[12] HB, p. 41; p. 45.
(c)The proposed new home layout was:
4-bedroom home with main bathroom, ensuites and powder room, double garage, 2 storey home with lift, large home 401 square metres including 2 levels, porch at front and back entrance to access by walker/wheelchair, main bathroom 2nd floor with disability accessible, powder room ground floor with disability accessible, open plan living with room for KXHC to access with her walker/wheelchair.
(d)The need for various home modifications was explained as follows:
KXHC’S family are building a home and they want this home to be accessible for KXHC. Due to KXHC’S disability, she uses a walker to get around her current home, and she uses equipment pieces such as; walker, wheelchair, standing frame, accessible seating and accessible toileting frames in her home. For this new home to be accessible for KXHC the following are required:
§Accessible bathroom
§Accessible powder room
§Extra door frame width (920mm)
§Accessible toilet
§Elevator to access to the second storey (where her bedroom will be)
The family are going to be building the home (a more open house for KXHV to manoeuvre around with her walker), but are requesting finances from NDIS for the above modifications. These modifications are beyond parental responsibility and are required due to KXHC disability. These modifications will also provide KXHC opportunity for independence, using the toilet and bathroom independently and using her walker on both storeys of the house.
(e)As to the need for a passenger lift, Ms Bogle stated:
Although a large cost, an elevator is required in the home to increase KXHC’s independence and access. A stair lift would not be suitable, due to requiring transfer assistance to get into the chair lift, the chair lift does not provide enough postural support would support KXHC to use her walker or wheelchair in any storey of the house and does not require a transfer lift to get KXHC onto anything.
49.Although there is limited evidence before the Tribunal about the now demolished former family home, the expert occupational therapists have expressed views about the suitability of this home for the Applicant’s needs as a result of information provided by the Applicant’s family and observations made by both Ms Bogle and Ms Singh, including photographs and information about the next-door home which, it is accepted, was a mirror of the layout and size of the now demolished former family home. The Tribunal considers that the uncontroverted evidence of the Applicant’s mother and the information about the neighbouring property sufficiently establish the following issues with this former home:
(a)The Applicant was unable to manoeuvre her walker or wheelchair through the corridors and kitchen;
(b)The Applicant’s bedroom did not allow sufficient circulation space for her walker;
(c)The bathroom was too small to accommodate the Applicant without modifications and did not provide privacy for the Applicant when using the toilet;
(d)The overall size of the house did not allow for a separate therapy room, storage of the Applicant’s disability-related equipment or sufficient manoeuvrability for the Applicant when using either her walker or her wheelchair.
Ms Bogle noted that, in addition the Applicant’s incapacity to independently use stairs, she also requires assistance with transfers, mobilising (including requiring a large footprint and space to circulate with her walker or when in her wheelchair), lifting and carrying capacity and with some aspects of learning and cognition. Ms Bogle also noted that the Applicant required assistance with the self-care activities of toileting, dressing and bathing, meal preparation, cleaning and laundry. This evidence was not challenged, and Ms Singh expressly accepted that the Applicant is not able to use stairs.
The Applicant’s mother provided an undated statement providing the following explanation of the need for the lift and other home modifications:
To access her home currently is very difficult for her due to small rooms we have no accessible bathroom and toilet. Her parents currently in the process of building a new home and are undertaken full home modifications to be accessible. With our builder we a making our new home with fully accessible bathroom (located on 2nd level) and accessible powder room (located on ground level) as well as a lift so KXHC can access her bedroom on the second level. There will also wider doors of 920mm so KXHC can access every room in the house. The reason for her bedroom room on the second level is to ensure there is enough room on the ground level for her to move in her walker and wheelchair. All main bedrooms of the home will be located upstairs. Having a lift will be easier for KXHC to access both floors with her aids. A chair lift will not be suitable as it is not enough posture support and unable to take aids with her while being on the chair lift.
52.A later undated statement provided the following further information:[13]
We lived in a small 3 bedroom that wasn’t sufficient for KXHC has it was hard for her to navigate through the narrow hallways and doorways. It was hard for her to be independent. As a family we decided to build a new home that was accessible for KXHC, and she will have independence and a home KXHC can enjoy for the rest of her life.
As parents we also put KXHC interests first when building and making decisions on our new home. We wanted her to able to do her own thing. We built a 2-storey home, so we can have plenty of room for KXHC to navigate through the home with no obstacles. We consider her needs and comfort so she can achieve goals within her NDIS plan.
Her bedroom was placed upstairs to be closer to her parents and her young brother at night. We also made her a bigger room for some of her equipment and using her walker. Plus, she needs assistance during the night as she calls for her parents around 2-3 times a night. She is unable to climb stairs, so we had another option to install a residential lift to the home for her to access the bedroom without our assistance as well as making it disability friendly. This is reasonable and necessary item for KXHC within our new home to NDIS could contribute, as it is requirement for her disability to access everyday activities and tasks.
A single storey was considered but we wouldn’t be able to have the backyard for KXHC to ride her bike, use her trampoline, walk in the garden and enjoy the outdoors independently. Within our new home we have a Guest Bedroom which is not suitable for KXHC as it is at the front of the home, with traffic and street noise this will trigger her psychological emotions with her sensory and anxiety levels.
[13] HB, p. 435.
The Applicant’s mother gave oral evidence at the hearing that was consistent with her written statements. She also stated that:
(a)The family had noted a positive difference in the independence of the Applicant since living in the new home, and being able to access every room in the home, for the last six months;
(b)The family was not able to build a single-storey home because the new home had to comply with setback requirements and building a large single-storey home would mean that the family would not be able to retain the backyard for the Applicant to use her trampoline and bike. The new home is over 400m2 in size and this could not have been accommodated on the existing block of land.
(c)All the bedrooms are now located upstairs and there is a guest bedroom downstairs. The Applicant’s brother is eight years old. Both children sometimes are awake at night. The Applicant is able to come into her parent’s room at night and they leave lights on at night for her. The two children’s bedrooms are now opposite the hallway from one another whereas they used to share a bedroom. The Applicant finds it comforting that her bedroom is near her brother’s and without that proximity there would be a physical barrier to the interaction between the Applicant and her brother, which often takes place in the evening before bed.
(d)The Applicant has anxiety. The downstairs guest room is the front of the house and there is lots of traffic at night that may affect her sleep. In any event the parents are upstairs and wish to be on the same level as the children. Further, there was no other place where the Applicant would have been able to have a bedroom downstairs. With the inclusion of wider hallways, the only other location for a potential downstairs bedroom would be opposite the kitchen and both of these room options are too noisy for the Applicant’s needs. They are also not near the other family members.
(e)The new home took about two years to plan and the family carefully considered all of the Applicant’s disability-related needs, including access, increasing independence in showering and toileting, appropriate circulation space for her walker and wheelchair. It was determined that these needs could best be met in the two-storey design. Factors considered by the family to be relevant to the size and design of the new house included:
(i) Cost;
(ii) Equipment, including places to store parallel bars, walker, wheelchair etc;
(iii) Size of walkways;
(iv) Whether a single-storey home could provide space for a therapy room, the storage of the Applicant’s exercise equipment and a bedroom sufficiently large for the Applicant’s needs.
(f)The family wished to remain in the location where they already lived, as it was close to public transport, the city, the school where both children attend, therapies and family and friends.
(g)Members of the Applicant’s mother’s family live within five minutes of the home. Cousins, friends and family are nearby if help is required with the Applicant, including babysitting and sometimes picking up and driving her to appointments. The Applicant’s mother’s own parents also live nearby and are aged in their 70s. She has caring responsibilities in relation to her parents including assisting them with their shopping and appointments.
The Applicant’s mother was closely cross-examined by counsel for the Respondent in relation to what was put to her as a “forensic decision to build a two-storey house that necessitated the installation of a lift”. In response, the Applicant’s mother gave the following evidence:
(a)She did not accept that the family made a decision to build two-storey home without first considering whether the agency might fund the lift. They had consulted with NDIS local area co-ordinator a few times and arranged to submit a report from their Occupational Therapist which supported the lift. The NDIS was asked to approve the lift over two years ago.
(b)However, she accepted that the family had proceeded with the installation of the lift without the consent of the NDIA and in the hope that it would be funded and knowing that there was no guarantee of this funding. She explained that they have proceeded with the lift and used borrowed funds secured by a mortgage in order to pay for the lift whilst awaiting the outcome of the review process.
(c)She did not accept that there was a convenient and appropriate position to put the Applicant’s bedroom downstairs.
(d)As to the suggestion that it was open to the family to choose another location for their home that would not involve a lift, she responded that it would not be possible to find a bigger property to accommodate their family in the area, but could only afford to buy a larger home in a faraway location. She further noted that the family already owned this property.
(e)As to the suggestion that the families’ decision to demolish and rebuild a home in the current location was “lifestyle driven” she responded that a location close to family and friends, therapies and school was important and that the family wouldn’t otherwise be able to afford to stay in the area if they had not knocked down and rebuilt. Therefore, they did not look into other options.
The report of Ms Singh, Occupational Therapist, stated that the parameters reported by the Applicant’s parents for their proposed new home were:[14]
(a)A four bedroom home so that their children could have their own bedrooms, and a spare bedroom that they could use as a study or could be used by a carer for KXHC to sleep in overnight in the future;
(b)Space for KXCH’s equipment and therapies to occur as previously therapy happened in the lounge with no privacy;
(c)It is important for them as a family to have some backyard space for their trampoline, cubby house etc. Mrs and Mrs KXHC reported that they did not want a little backyard as KXHC enjoys being in the backyard;
(d)KXHC’s bedroom to be close by to her parents so that they can render assistance to her easily when needed; and
(e)To retain the garage (rear shed) as it was only 10 years old and in good condition.
[14] HB, p. 468.
As to the construction of a two-storey dwelling, Ms Singh stated in her report,[15]
“In terms of whether the property had to be two storey is influenced by the home capacity and design aspects that Mrs and Mrs KXHC desired for their family. For their family home they wanted to retain their relatively large new shed at the rear, have a large backyard for their children, have a spare bedroom with walk in robe and ensuite bathroom for guests, or for a care worker to sleep overnight in the future should KXHC require it, have a retreat/therapy room for KXHC, and a rumpus room upstairs. They required extra wide hallways, widened doorways and large rooms for ample circulation space for KXHC.
The block is reportedly 830m². The Building Consultant has advised that, even with retaining the existing shed at the rear and with an 8.5m set back from the road, a single storey family home could have been accommodated on the block that included 3 bedrooms, two bathrooms, combined kitchen, living and dining area, garage, laundry and spare bedroom/therapy room/rumpus room and a sizeable backyard for the children. This would have been at the expense of some of the space in the back yard.”
[15] HB, p. 474-475.
As to the installation of a lift, Ms Singh stated:
“…the Building Consultant has advised that a single storey property, or a different design with two bedrooms and accessible bathroom facility could have been accommodated on the block. However, if the AAT considers it reasonable that the family’s wishes for their new family home be taken into account, including the inclusion of a retreat/therapy room and a large back yard for their children, then inclusion of lift would be reasonable and necessary, based on the assumption that KXHC is not safe to negotiate stairs.”
Ms Singh concluded in her report that, if it were reasonable to take account of the family’s wishes in relation to backyard size, retaining a large garden shed and providing for those additional spaces in the home, including the therapy room, then it would be reasonable to have a lift. She concluded, in consultation with the building consultant, that the desired rooms could not all be on the ground floor. Ms Singh also accepted during the hearing that the organisation of bedrooms should not impede on the Applicant’s independence or on her sibling interaction.
Having regard to the expert opinion of Ms Singh, and the building consultant with whom she has conferred, it appears that the critical question for the Tribunal is whether the Applicant’s family should be permitted, through her NDIS funding, to recover for the provision of accessible features in a home with the scale and amenities they have chosen to include. The evidence demonstrates that it was necessary for the new home to have consisted of two-stories in order to fit on the block and accommodate all the rooms that comprise the new house. The building consultant provided Ms Singh with a list of the rooms that could have been accommodated in a single-storey house taking space in the rear yard currently occupied by the garden and shed. Some, but not all, of the families’ requirements could have been met. Construction of a single-storey home would have necessitated compromise on both internal and external space. There would not have been sufficient space for a separate therapy room, rumpus room and study/guest room. These needs would have had to be combined into a single utility space serving the multiple functions of accommodating the Applicant’s disability-related equipment, any of the usual toys and gear that children may have in a rumpus room, providing a place for the Applicant’s mother to use as a study when working from home and a place for a guest or overnight carer to sleep. In addition to this compromise, the outside garden and storage facilities would have been reduced significantly in size and amenity.
The evidence demonstrates that the Applicant’s family chose to utilise the property they already owned by demolishing an older house that was neither practical nor economical to modify and replacing it with a new home that was bigger and met their current needs. They have not sought to have the increased size of the home funded but have asked that the disability-related support of the lift be funded. The motivation for doing so was explained by the Applicant’s mother:
We built a 2-storey home, so we can have plenty of room for KXHC to navigate through the home with no obstacles. We consider her needs and comfort so she can achieve goals within her NDIS plan.
Providing room for a growing family by replacing an older single-storey home with a modern double-storey home is an unremarkable and utterly conventional choice for any family with the means and motivation to do so. The Applicant’s parents purchased a small starter home, before having children, and it was entirely foreseeable that the house would require extension or replacement in time when their family expanded. What they may not reasonably have been able to anticipate, but what they have nonetheless now responded to, is the need to provide a family home that meets both the growing needs of their family and the disability-related needs of their daughter. To do so effectively has required the family to build a home that is larger than their previous home and configured in a way that allowed for larger hallways, greater circulation space, storage and therapy spaces, a more generous bedroom for the Applicant and generous proportions to all rooms she may access whilst retaining access to functional and safe outside space.
The parents have located the bedrooms together on the same floor as a result of a combination of the disability-related needs of the Applicant and the reasonable needs of a family with two young children. Both children may require the attention of the parents at night, but the Applicant’s mobility issues put her at risk if she is to be on a different floor to her parents who care for her overnight. If the Applicant and her parents were able to be accommodated in order to sleep on the downstairs level, the Applicant’s brother would be upstairs. This would compromise the familial interaction between the Applicant and her brother and challenge the parents’ caring responsibilities towards their eight-year-old son (who would have been five or six years old when the new home was commissioned). The Tribunal is not satisfied it would be reasonable for the Applicant to be able to access only some parts of the home even if her bedroom were located on the lower level of the house. If her parents’ or brother’s bedrooms or rumpus room are upstairs then those rooms would be inaccessible to the Applicant without a lift. In order to access all parts of a two-storey home, however configured, and for the family members to care for and interact with the Applicant, it is necessary that she be able to access both levels of the home and the Tribunal accepts that she can independently do so only via a lift.
The Respondent submitted that the Applicant’s family has chosen to prioritise “lifestyle choices” in deciding to re-build their home in its current location and in choosing to include additional internal space and retain rear garden space and an existing shed. The Respondent relied on the decision of LZMX and National Disability Insurance Agency[16] in which the Tribunal determined that, although LZMX was a fulltime wheelchair user and could not use stairs, it was not reasonable and necessary for funds to be specified for a lift for the Applicant to reach a first floor apartment in which he was to reside as a result of an agreement with his daughter (identified in the reasons as SH). The unique facts of that case are set out from paragraph 141 of the reasons for decision:
“The Applicant and his family decided, for their own lifestyle reasons, to purchase the particular property in the city, which property was to be for a dual purpose, namely, SH’s business requirements and a home for the Applicant and LH. The property, by its location, provided better infrastructure to enable the Applicant to move outdoors with assistive technology, have closer proximity to the hospital, and for he and LH to have greater access to family members including SH, their daughter-in-law and their grandchild. The decision to move residence is well understood in the circumstances of this matter. But it was the location of the property that provided those improvements for the Applicant; not the lift. The requirement of the lift only arose because of the lifestyle decision to locate the Applicant on the first floor of the Adelaide premises.
It is also relevant, in the circumstances of this matter, that the Applicant made a decision to leave his home, in which he had a proprietary interest, to reside at [the] premises…”
[16] [2021] AATA 378.
The Tribunal in that case determined that the installation of a lift was “relevant to the lifestyle choices that the family then made to enable the Applicant to occupy and use the first-floor accommodation” and was an “extravagance that was, pursuant to s 34(1)(e), in the circumstances of this matter, reasonable to expect the family to provide.”[17]
[17] Ibid at [164].
This case differs markedly to the circumstances giving rise to the decision in LZMX. In that case, the Applicant and his wife could have chosen to live in any location and elected, somewhat unconventionally, to utilise the upper-storey of an inner-city property owned by their daughter, who ran a business from the downstairs portion of that property. Here, the Applicant is a child who relies on her family to make decisions. The family has incurred expenses on behalf of the Applicant in relation to modifications to their newly built family home, on land they already owned, in order to make the new house suitable to the Applicant’s disability-related needs. The family’s decision to do so has been scrutinized in excess of the scrutiny they likely would have received if they had no connection to their community and had instead sold their existing home and purchased a larger two-storey home that otherwise met their needs. Critical focus by the NDIA upon a families’ decision-making process may lead to the consideration of irrelevant factors.
The Respondent submitted that the decision of the Applicant’s family to “go head long into design and construction of the home without any certainty that the lift can be covered” was somehow relevant to whether it is a reasonable and necessary support. A support will be reasonable and necessary because it meets the statutory requirements of subsection 34(1) of the NDIS Act and the related support Rules, not because it has been requested in a manner or sequence favoured by the Respondent. The Respondent was asked to approve the lift in a timely way, some years ago, and decided to refuse to approve it. It was open to the Applicant’s parents to commence and continue construction during the internal and external review process which, in the event, has taken longer to complete than the construction process itself. Many other aspects of the modifications were also committed to by the family without any certainty that they would be funded and, subsequently the Respondent has accepted that these are reasonable and necessary. The Respondent has asked the Tribunal to make a decision including funding for various home modifications that have now long been constructed. It is irrational to treat this particular modification differently. Further, this aspect of the Respondent’s submission appears to be at odds with the applicable operational guidelines. The relevant guidelines were extracted, in part, in the Respondent’s statement of facts, issues and contentions in a way which inaccurately suggested that approval is first required before undertaking home modifications for which funding will be specified in a SPS. However, when considered in full, it is plain that the guideline stipulates that the NDIA cannot give advice about design choices and contemplates the prospective funding by the scheme of modifications to homes after the design has been settled upon by the participant, whether in a home that is to be newly built or newly acquired:
“Once you’ve considered all your options and decided on your design, we may be able to fund the modifications we have approved for your new home. They will need to relate to your disability and meet the other NDIS funding criteria. In this situation, we would fund the costs of changing a standard feature to a disability specific feature.”
In the circumstances, the Applicant, through her parents, followed the parameters of the guideline and obtained a home modification assessment using the appropriate template when seeking funding for the support. The design was settled upon and the funding they sought. The only remaining relevant question is whether the modification is reasonable and necessary, having regard to subsection 34(1) of the NDIS Act. It is not relevant whether the NDIA had approved funding prior to construction.
The guidelines further states, “We generally don’t fund modifications you wouldn’t have needed with appropriate site or home selection.” The Tribunal is satisfied, for the reasons set out above, that the Applicant has not made a site selection at all as the home is built on the site of their previous family home. This site is close to the informal supports the parents rely upon to assist with caring for the Applicant together with the Applicant’s older parents whom she also assists at times. The home has an existing garden and shed that are suitable for the needs of the family, including the Applicant who is able to use her trampoline and bicycle and who can access the garden without the barriers she would face in accessing, for example, a local park or riding a bike in the street. The Applicant’s family has carefully considered the suitability of the design.
In the event, the Tribunal is satisfied that both the size and the configuration of the newly constructed home is appropriate for the reasons set out above. Each case turns on its facts. However, the Tribunal notes that pejorative terms such as “lifestyle choices” and “extravagance” have no application to the circumstance of this case or the actions of the Applicant’s family. They already owned land. The backyard and the shed were already in use by the family. There were good reasons to retain the block of land and the existing outside features and to build a new home in situ. It would have been uneconomical for both the Applicant’s family and the NDIS to modify the older existing home. The new home accommodates the needs of the family and the disability-related needs of the Applicant in a proportionate and reasonable way and in order to do so the family had no choice but to arrange the required rooms over two-storeys. In those circumstances, it was wholly proper for a lift to be installed in order to meet the Applicant’s disability-related needs.
The Applicant’s goals include maintaining her independence and improving her skills. The Tribunal accepts the conclusions drawn by the various medical and allied health professionals as set out above, which are consistent with the conclusion that the requirements of subparagraph 34(1)(a) of the NDIS Act are met.
The Tribunal considers that the Applicant’s social and economic participation includes her familial interaction at home. Her safe access to the garden to use her trampoline and to play, including with her brother, together with her access to all parts of the home, facilities this participation. For these reasons, the Tribunal considers that the requirements of subparagraph 34(1)(b) of the NDIS Act are met.
Support Rule 3.1 provides additional “value for money” considerations in determining whether the support meets subparagraph 34(1)(c). There is no evidence before the Tribunal of comparable supports which would achieve the same outcome for the Applicant at a substantially lower cost. This is because the Applicant’s family could not fit all the desired rooms onto the block without building a two-storey home and all other options would require a compromise of the indoor or outdoor spaces. The other costed alternative was modification of the existing home which would likely have been more expensive than the total cost of the modifications including the lift and would not have resulted in same outcomes in terms of family living and interaction leading to increased skills and independence. It would have been a higher cost option with less desirable outcomes for the Applicant. The Tribunal is satisfied that full access to her modified family home and garden during her childhood will provide relatively greater benefits for the Applicant than any other option.
Weighing all of the evidence, the Tribunal finds that the support of a passenger lift represents value for money in that the costs are reasonable, relative to both the benefits achieved and the cost of alternative supports and is therefore consistent with the conclusion that the requirements of subparagraph 34(1)(c) of the NDIS Act are met.
Support Rule 3.2 provides additional considerations in determining whether the support is effective and beneficial under subparagraph 34(1)(d). The consensus of expert opinion in this case supports, overwhelmingly, the Applicant’s need to access a lift in order to navigate her home.
Having regard to the relevant evidence and findings already made, the Tribunal finds that the support is likely to be effective and beneficial for the Applicant, having regard to current good practice and is therefore consistent with the conclusion that the requirements of subparagraph 34(1)(d) of the NDIS Act are met.
It follows that the Tribunal is not satisfied that the support is not reasonable, taking account of what families, carers and networks might reasonably provide or that the support was more appropriately to be funded or provided other than through the NDIS. The Tribunal is satisfied that the support meets both subparagraphs (e) and (f) of section 34(1).
In addition to Support Rules 3.1 and 3.2 discussed above, Rule 5 of the Support Rules includes general criteria for supports and specifies which supports will not be funded or provided. Relevantly, Support Rules 5.1 provides as follows:
General criteria for supports
5.1A 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.
Mortimer J in McGarrigle, with respect to the Rules, states as follows:[18]
[43] The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) to (7) constrain the rule-making power to preserve the federal characteristics of the NDIS The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Rules) are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.
[18] McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [43].
The primary issue advanced by the Respondent in relation to the Rules appears to be that the lift represents a lifestyle choice or election on the part of the Applicant’s parents and should therefore be funded by them or should not have been constructed before approval was given by the NDIA. Having regard to the findings already made, it follows that the Tribunal is not satisfied that the available evidence supports the Respondent’s submissions. The Tribunal is satisfied that funding for the passenger lift is not inconsistent with the Rules.
For completeness, subparagraph 3(3)(b) of the NDIS Act requires regard to be had to the need to ensure the financial sustainability of the National Disability Insurance Scheme. In addition, subsection 4(17) provides:
It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to the need to ensure the financial sustainability of the National Disability Insurance Scheme.
There was no evidence before the Tribunal and no submissions made regarding the financial sustainability of the National Disability Insurance Scheme. The home modifications sought in this case are significant and it should be acknowledged that not every such case will result in the conclusion that a lift should be installed in a newly built domestic dwelling. This case, like all cases, turns on its unique facts. There is therefore no basis to conclude that, in the particular circumstances of this case, funding for the approved supports is likely to have an adverse impact on the sustainability of the NDIS.
CONCLUSION
For the reasons set out above, the Tribunal is satisfied that the passenger lift meets the requirements of a reasonable and necessary support as defined in the NDIS Act. The Tribunal is not so satisfied in relation to any other home modifications or the LusioMATE program.
DECISION
The decision under review is set aside and the decision is remitted for reconsideration with a direction that the Applicant’s approved statement of participant supports specifies:
a)From the date of this decision, funding for a passenger lift in the total sum of $46,789 (being $7,594 for the provisioning of the space and $39,195 for supply and installation of the lift); and
b)From the date of this decision, funding (as specified in the terms of partial agreement signed by the parties on 13 June 2024) for:
a.Core Daily Activities: 25 hours per week at the Weekday Daytime rate for Assistance with Self-Care Activities;
b.Capacity Building Daily Activities: Psychology 24 hours total;
c.Assistive Technology:
i.$2,746.00 for a second pair of second skin orthotics;
ii.4.5 hours (total) therapeutic support in relation to paragraph 1.3(a) above;
iii.$8,089.90 (per year) for other orthoses; and
iv.9 hours (per year) therapeutic support in relation to 1.3(c) above;
d.Home Modifications (pricing based on a series of 'Authority for Variation to Contract' provided by the Applicant on 5 June 2024):
i.Grab rail in the powder room: $300
ii.Grab rail and handheld shower hose in the main bathroom: $900
iii.Non-slip bathroom floor tiles: $976
iv.Weight bearing shower seat: $2,066
v.Increased width to hallways to enable walker access to powder room and main bathroom: $11,200
vi.Powder door frame width extended to 920mm: $79
vii.Bathroom door frame width extended to 920mm: $965
viii.An additional bedroom light switch: $45
ix.Standard Cambridge stair lighting: $1,212
x.All internal doors width extended to 920mm: $3,740
e.Capital Supports - Assistive Technology: Existing funding for Manual Wheelchair to be changed to a price range from $1,969 to $12,000.14.
c)That the reasonable and necessary supports otherwise specified be replicated until the reassessment date.
I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for decision of Senior Member K Buxton.
.................................[SGD]....................................
Associate
Dated: 4 July 2024
Date of the hearing: 15 May 2024
Date of final submissions: 16 June 2024
Applicant: KXHC by her mother
Counsel for the Respondent: Mr Paul d’Assumpcao
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