LJJY and National Disability Insurance Agency

LJJY and National Disability Insurance Agency [2018] AATA 3506 (18 September 2018)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2017/5823
Re:LJJY
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:18 September 2018
Place:Sydney

The reviewable decision made 5 September 2017, being the internal review decision made by the National Disability Insurance Agency not to provide in-home care assistance for the Applicant, is affirmed.
....................[sgd]....................................................
J W Constance
Deputy President
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME - whether support is reasonable and necessary - whether the requested support assists the Applicant to pursue the goals, objectives and aspirations included in the statement of goals and aspirations – whether the requested support assists the Applicant to undertake activities, so as to facilitate social and economic participation – whether the support represents value for money in that the cost of the support is reasonable – whether the requested support be, or likely be, effective and beneficial to the Applicant, having regard to current good practice – after school care - Autism - decision affirmed
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth)
CASES
TKCW and National Disability Insurance Agency [2014] AATA 501
REASONS FOR DECISION
18 September 2018
INTRODUCTION

The Applicant is seven years old. He is a participant in the National Disability Insurance Scheme (NDIS) which is administered by the National Disability Insurance Agency.
In this application, made on his behalf by his father Mr A, the Applicant is asking the Tribunal to review the Agency’s decision to refuse to include in his plan provision for in-home care for three hours per day, three days per week. Mr A is of the view that the care requested involves therapy, as well as supervision, for the Applicant after school. The Agency claims that the care requested is essentially child-minding.
For the reasons which follow, the decision of the Agency will be affirmed.
BACKGROUND
The Applicant was diagnosed with Autism when he was two years old. At the age of six he was assessed to have a more specific level 3 Autism severity which requires substantial support.
On 30 May 2017, the Chief Executive Officer of the Agency issued a plan for the Applicant.[1] The plan did not include the after-school support requested on his behalf.
[1] Exhibit R1 at 68.
On 7 July 2017, Mr A requested that there be an internal review of the decision not to include the after-school support in the plan.[2] By letter of 5 September 2017, the Agency notified Mr A that it had been decided not to change the decision refusing the additional support requested.[3]
LEGISLATIVE FRAMEWORK
[2] Exhibit R1 at 25.
[3] Exhibit R1 at 7.
Participant plan
Once a person becomes a participant in the Scheme, the Chief Executive Officer of the Agency must facilitate the preparation of a plan for the participant as soon as reasonably practicable.[4] This plan must include a “statement of goals and aspirations” of the participant and a “statement of participant supports”.[5] The latter statement must specify “the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme”.[6]
[4] National Disability Insurance Scheme Act 2013 (Cth) s 32.
[5] National Disability Insurance Scheme Act 2013 (Cth) s 33.
[6] National Disability Insurance Scheme Act 2013 (Cth) s 33(2)(b).
The objects of the Act
Subsection 3(3) provides, in part:
In giving effect to the objects of the Act, regard is to be had to:
…
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme; and
…
(d) the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.
General principles guiding action under the Act
Relevant general principles to this application found in section 4 of the Act are:
(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
…
(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.
Requirements for reasonable and necessary supports
Section 34 of the Act provides:
(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).
THE ISSUES FOR DETERMINATION
In order to decide whether the provision of the requested after-school support is a “reasonable and necessary support” for the Applicant and one which should be funded under the Scheme, the following issues arise:
(1)Will the requested support assist the Applicant to pursue the goals, objectives and aspirations included in his statement of goals and aspirations?
(2)Will the requested support assist the Applicant to undertake activities, so as to facilitate his social and economic participation?
(3)Will the support represent value for money in that the cost of the support is reasonable, relative to both the benefits achieved in the cost of alternative support?
(4)Will the requested support be, or likely be, effective and beneficial to the Applicant, having regard to current good practice?
EVIDENCE AND FINDINGS OF FACT
The evidence of Mr A, the Applicant’s father
Mr A provided a statement dated 21 November 2017[7] and gave evidence before the Tribunal.
[7] Exhibit A1.
The effect of the Applicant’s disability
In his statement, Mr A said that the Applicant’s:
social awareness and communication is still very lacking, he has no sense of danger in the community (traffic safety, stranger danger, needs to stay within an arm reach of an adult) and needs a higher level of support in the community than other children his age, both with staying safe and in learning appropriate safety skills to promote future independence in accessing his community.[8]
[8] Exhibit A1.
The Applicant’s current situation
The Applicant attends an Autism specific school five days per week. He utilises assisted school transport but cannot transition to and from the bus without support. Usually Mr A escorts him to and from his transport in the morning between 8:00am and 8:30am and in the afternoon between 3:00pm and 4:00pm.
The Applicant attends speech therapy once per fortnight.
The Applicant’s parents have engaged a junior therapist to assist him after school. She is usually engaged for a two hour session (3:15pm to 5:15pm), twice per week. The therapist assists by meeting the bus in the afternoon, escorting the Applicant home, and engaging with him on a one-on-one basis. At the time Mr A made his statement in November 2017, the therapist was working with the Applicant to develop his fine motor skills. Her services cost $44.72 per hour.
If the Applicant did not have his disability he would be enrolled in after-school care until 5:30pm each week day. His parents have placed his name on waiting lists of other after-school carers. They have been advised that the Applicant will need a support worker if he is placed in a non-specialist care environment. It is their aim to be able to have the Applicant enrolled in mainstream after-school care within two years.
The family situation
The Applicant has one sibling, a three year old brother. He attends full-time day care from 8:00am to 5:30pm during the week.
Mr A is in full-time employment. His employer permits him to adjust his hours of work to enable him to escort the Applicant to the bus and to be present at home after the Applicant returns from school. The Applicant’s mother, Ms A, has recently started in a new position and is not able to be present at home to assist the Applicant within normal working hours.
CONSIDERATION OF THE ISSUES
Will the requested support assist the Applicant to pursue the goals, objectives and aspirations included in his statement of goals and aspirations? (Subsection 34(1)(a))
The Applicant’s goals and aspirations are set out in his Plan:
My First Goal is:
During this plan: [The Applicant’s] parents would like him to develop improved cognitive skills.
My Second Goal is:
During this plan: [The Applicant’s] parents would like him to be more able to use language in everyday life.
My longer term goals and aspirations are:
Goal: [The Applicant’s] parents would like [the Applicant’s] fine motor and self care skills to improve.
Relates to: Daily life
Goal: [The Applicant’s] parents would like him to be able [to] independently say hello and goodbye without prompts and to start to interact with, play with and take turns with other children.
Relates to: Social and community activities
Goal: [The Applicant’s] parents would like him to learn how to stay safe in the community and to appropriately participate in community activities.
Relates to: Social and community activities
The Respondent’s argument
The Respondent argues that there is no evidence that could satisfy the Tribunal that the requested support will assist the Applicant in this regard. There is no independent evidence that any of the necessary skills are being taught to the Applicant and no evidence of measurable outcomes.
The role of ABAlink
At the time of the hearing on 28 March 2018, ABAlink was providing the after-school care described earlier in these reasons. The junior therapist meets the Applicant at the bus stop and cares for him until one of his parents returns home from work.
Tracking documents for 14, 20 and 21 March 2018 provided by ABAlink show that:
·the therapist engaged the Applicant in “reciprocal book reading”;
·verbal requests and expressions of gratitude were encouraged and modelled;
·community involvement was encouraged by visiting the local library;
·social greeting was encouraged;
·creativity was encouraged.[9]
[9] Exhibits A2 and A3.
An undated document provided by ABAlink describes the role of the carer as assisting the child to learn:
·improved cognitive skills;
·to have the ability to use more language in everyday life;
·improved self-care skills;
·to independently communicate without prompts and to interact with other people;
·how to stay safe in the community and appropriately participate in community activities.[10]
[10] Exhibit A5.
Mr A’s evidence
In a statement made 21 November 2011,[11] Mr A said that the services of ABAlink had been used recently “as some work commitments have ramped up.”
[11] Exhibit A1.
Discussion
On the basis of this evidence, I am satisfied that there is an element of child-minding in the services of ABAlink. However, it is not correct to say that there is no evidence that the requested support will assist the Applicant to pursue his goals, objectives and aspirations. I do agree that the evidence is limited and that there are no measurable outcomes. Although I have no evidence of the activities the Applicant engages in at school, it is reasonable to assume that these would be designed to assist him in the same way as those undertaken with the junior therapist.
I am satisfied that, to a limited extent, the requested support would assist the Applicant to pursue his stated goals, objectives and aspirations.
Will the requested support assist the Applicant to undertake activities, so as to facilitate his social and economic participation? (Subsection 34(1)(b))
To the extent that the support will assist the Applicant to pursue his goals, it will also facilitate his social participation. However, on the evidence before me, the extent of the facilitation is limited.
Will the support represent value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support? (Subsection (34)(1)(c))
The present cost of the junior therapist requested is $44.72 per hour which equates to $268.32 per week if she is engaged for six hours per week.
As I have already found, the therapeutic component of the care proposed is limited. The website of ABAlink refers to the ABA therapy programs as follows:
Your Program Supervisor creates your child’s ABA program and assesses the progress your child makes. Your Senior Therapist runs weekly therapy sessions with your child and manages your child’s team of therapists. Your Junior Therapists deliver the majority of therapy in your home to the ABA therapy program plan.
…
Clinics are an important part of the program. You and your child’s team evaluate your child’s progress with your Program Supervisor every 4 weeks. This ensures a continuous progression to your child’s goals.[12]
[12] Attachment to Respondent's Statement of Position dated 26 March 2018.
The requested support does not involve a senior therapist providing weekly therapy sessions with the Applicant, nor are there monthly evaluations by a program supervisor. The junior therapist provides childminding and limited activities which may have a therapeutic effect.
There are other sources of funding which would assist the Applicant’s parents. These funding arrangements may not meet the total cost of after-school care for the Applicant.
From 2 July 2018, the Child Care Subsidy has been the principal means of family support provided by the Commonwealth. As at the date of hearing, Mr A had not investigated possible entitlements under this scheme, which is means-tested and with a maximum hourly cap for in-home care of $25.00.
The Commonwealth also funds an Inclusion Support Program to subsidise after-school care and to increase resources available to childcare providers, specifically to enable children with disabilities to be included in mainstream care.[13]
[13] Respondent's Statement of Position 26 March 2018 at [44] and attachment.
Mr A said that he was unaware of the support provided under this program which may allow the Applicant to attend after-school care outside his home.
Taking these factors into account, I am not satisfied that the proposal to engage a junior therapist to provide after-school care with limited therapy is reasonable. The evidence available to me indicates that the benefits of the support requested are limited and have not been assessed. The relative costs of alternative supports, which may include some financial or time contribution from the Applicant’s parents, are unknown.
Will the requested support be, or likely be, effective and beneficial to the Applicant, having regard to current good practice? (Subsection 34(1)(d))
I do not have sufficient evidence to be satisfied that the requested support meets this requirement.
The description of the ABA program provided by ABAlink makes it clear that the support proposed is only a small part of the program. I am unable to determine whether that part of the program which is proposed would be an effective support in addition if the other support provided to the Applicant is taken into account.
The Tribunal recognises that it may be difficult to obtain evidence of current good practice in some circumstances. In TKCW and National Disability Insurance Agency, the Tribunal said:
Evidence, even if anecdotal, from a sufficient number of qualified therapists or positive outcomes in sufficient numbers of children may be enough to say that it should be regarded as current good practice.[14]
[14] [2014] AATA 501 at [75].
In this application I do not have the benefit of any expert evidence to enable me to be satisfied as to the nature of current good practice and the likely benefit to the Applicant of what is proposed.
CONCLUSION
As I have decided that the requested support fails to meet the requirements of subsection 34(1)(c) and subsection 34(1)(d), I cannot be satisfied that it is a reasonable and necessary support which will be funded by the scheme. It is unnecessary that I determine whether the remaining subsections of section 34 are met.
The reviewable decision made 5 September 2017, being the internal review decision made by the National Disability Insurance Agency not to provide in-home care assistance for the Applicant, will be affirmed.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

..................[sgd]......................................................
Associate
Dated: 18 September 2018

Date(s) of hearing: 28 March 2018

Solicitors for the Applicant: Synapse

Solicitors for the Respondent: Wisewould Mahony Lawyers

[2018] AATA 3506

18 September 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Remedies

Date(s) of hearing:	28 March 2018
Solicitors for the Applicant:	Synapse
Solicitors for the Respondent:	Wisewould Mahony Lawyers