LNMT and National Disability Insurance Agency - [2018] AATA 431

LNMT and National Disability Insurance Agency [2018] AATA 431 (6 March 2018)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2017/2769
Re:"LNMT"
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Deputy President K Bean

Date: 6 March 2018
Place:Adelaide

The decision under review is varied so as to provide that the applicant’s plan of 12 May 2017 (the existing plan) is itself varied so as to include the following additional supports, calculated on the basis explained in the Tribunal’s Reasons for Decision:
·Support coordination - $12,228.32;
·Increased social and community participation - $ 2,200;
·Core supports - $8,779.96;
·Cognitive assessment - $ 1,020.00;
·Assistive technology - $10,080, in substitution for the amount of $980.00 allowed in the existing plan;
·Improved daily living - $11,375.70 plus the cost of an orientation assessment, in substitution for the amount of $11, 065.00 allowed in the existing plan; and
·Improved relationships - $5,847.45, in substitution for the amount of $5,614.70 allowed in the existing plan.

....................[Sgd]..........................................
Deputy President K Bean
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – Applicant a child with blindness, epilepsy and cognitive impairments – Reasonable and necessary supports – Support coordination – Support workers, pool program and aquatic therapy – Respite care – Whether participant plan should be extended - Decision under review varied.
LEGISLATION
National Disability Insurance Scheme Act 2013, ss 33, 34 and 209
National Disability Insurance Scheme (Supports for Participants) Rules 2013
CASES
McGarrigle v National Disability Insurance Agency [2017] FCA 308
REASONS FOR DECISION
Deputy President K Bean
6 March 2018

The applicant in this matter is an 11 year old girl who suffers from blindness, epilepsy and cognitive impairments. She currently resides in Tennant Creek in the Northern Territory. She is subject to a care order made by Territory Families in January 2016 and has been in the care of her foster mother since July 2016.
The applicant has had plans under the NDIS since at least September 2014, with the original plan the subject of the request for internal review in this matter covering the period 27 March 2017 to 27 March 2018.
Following the request for internal review of that plan, on 9 May 2017 that plan was varied and the varied plan provided for supports in the amount of $62,172.91. The dates of the plan were also changed so that the plan started on 12 May 2017 and was to be reviewed by 14 May 2018.
On 15 May 2017, a request was made on behalf of the applicant for review of the varied plan by the Tribunal, giving rise to this application.
In making her application to the Tribunal, the applicant is seeking additional supports in areas including the following:
(a)Speech pathology, occupational therapy and physiotherapy;
(b)Positive behaviour therapy;
(c)Assistive technology;
(d)Increased funding for support workers;
(e)Plan support coordination;
(f)Respite – short‑term accommodation; and
(g)A cognitive assessment.
The issue for me, accordingly, is whether additional supports are required in any or all of these areas.
THE LEGAL SETTING
Section 34(1) of the National Disability Insurance Scheme Act 2013 (the Act) provides that, for the purposes of specifying in the statement of participants’ supports the reasonable and necessary supports that will be funded under the scheme, the CEO must be satisfied that the support:
(a)will assist the participant to pursue the goals, objectives and aspirations in the participant’s statement of goals and aspirations;
(b)will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)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)will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)being funded or provided would take account of what is reasonable to expect families, carers, informal networks and the community to provide;
(f)is most appropriately funded or provided through the NDIS 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 obligations; or
(ii)in accordance with the reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules) deal with the assessment and determination of ‘reasonable and necessary supports’ that will be funded under the Scheme. The Support Rules form part of the legislation (s 209).
Paragraph 2.5 of the Support Rules provides that in administering the Scheme and in approving each plan the CEO must have regard to the objects and principles of the Act including the need to ensure the financial sustainability of the Scheme and the principles relating to plans.
Paragraph 3.1 of the Support Rules provides that in deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a)whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c)whether funding or provision of the support is likely to reduce the cost of funding supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d)for supports that involve the provision of equipment or modifications:
(i)the comparative cost of purchasing or leasing the equipment or modifications; and
(ii)whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e)whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f)whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
Paragraph 3.4 of the Support Rules provides that in deciding what is reasonable to expect families, carers, informal networks and the community provide, the CEO is to consider for a participant who is a child:
(a)that it is normal for parents to provide substantial care and support for children; and
(b)whether, because of the child’s disability the child’s care needs are substantially greater than those of other children of a similar age; and
(c)the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and
(d)whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing; and
(e)the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.
In McGarrigle v National Disability Insurance Agency [2017] FCA 309, Mortimer J stated with respect to the question of whether a support was reasonable and necessary (at [91]-[93]):
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of these proceedings 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”.
Relevantly to this proceeding, the factor set out in s 34(1)(e) (“funding or provision of the support takes into account what is reasonable to expect families, carers, informal networks and the community to provide”) goes to both whether a support is “reasonable” (in the sense of it being subject to provision or funding by the Agency) as well as whether it is “necessary” (in the sense of whether it is a support that cannot be provided by others).
In my opinion, the text and context of s 33(5)(c) read with s 34(1) indicates that the CEO (or the delegate or Tribunal) must either be satisfied that a support has the character of being a reasonable and necessary support or that it does not. Once a support is identified and described (to take an example away from this case, speech therapy lessons three time a week), then the question for the CEO (or the delegate or Tribunal) is whether she or he is satisfied that support, as identified, is reasonable and necessary for that particular participant. It may be open to the CEO to be satisfied that a differently identified support is reasonable and necessary: in this example speech therapy lessons once a week. That determination can only be made on the basis of probative evidence.
APPLICANT’S GOALS
The applicant’s Participant Statement lists the goals she wishes to work towards during her current plan (T14):
During this plan: I would like to improve my communication skills.
The applicant also identifies her longer term goals as being:
I would like to learn how to regulate my emotions and behaviours
…
I would like to ensure my carer is supported to sustain their carer role
…
I would like to maintain and increase my access to community activities – improving my social skills
…
I would like to access the appropriate assistive technology to increase my independence.
…
I would like to be supported within an educational setting.[1]
[1] T-documents, T13/87.
AREAS OF AGREEMENT
The respondent has ultimately conceded that some of the additional supports sought by the applicant should be provided and her plan should be varied to that extent.
The parties now agree that the applicant’s plan should be varied so as to reflect the following supports and amounts in the areas indicated, in substitution for those contained in the applicant’s existing plan:

·   Assistive technology $10,080.00[2]

·    Improved daily living

(Includes an increased allowance for occupational therapy, physiotherapy, speech therapy and orientation and mobility assessment, together with associated travel costs)

$11,375.70 plus the cost of an orientation assessment (up to six hours in accordance with the Price Guide – Very Remote, based on the assessor’s specialty and $500 travel)

·    Improved relationships

(This includes behavioural support plan development and implementation and social reciprocity support and investigation of behaviours and social interaction)
$5,847.45
[2]     Applicant’s Statement provided 19 October 2017, [12]; Respondent’s Reply to applicant’s Statement dated 26 October 2017; Statement of Ms East dated 12 October 2017.
AREAS OF DISAGREEMENT

The areas of disagreement are as follows:
·Support coordination – the applicant seeks $12,228.32 on the basis of 104 hours over 6 months calculated at $117.58 per hour;
·Increased social and community participation – the applicant seeks additional funding for two support workers to take the applicant to the pool 5 hours per week for 24 weeks and 5 days (1 November to 1 May) calculated at $66.25 per hour on a weekday evening;
·Core supports – the applicant seeks additional funding for respite care in disability supported accommodation for 7 days every 6 weeks calculated at $627.14 per day, to be substituted for the existing 14 days per year of respite allowed in the plan under review; and
·Cognitive assessment – the applicant seeks the cost of this in the sum of $1,020.00.
THE EVIDENCE
The applicant’s foster mother
In her written statement provided to the Tribunal, the applicant’s foster mother provided detailed information in relation to the applicant’s behaviours and care needs:
11.     Some examples of [the applicant’s] concerning behaviours include:-
i.      Anti-social behaviours;
ii.     Incontinence;
iii.     Propensity for violence and acting / reacting violently;
iv.     Deficits in rational behaviour;
v.Lack of understanding/coping with change causing trauma and behaviour issues;
vi.     Inability to navigate and regulate emotions;
vii.    Deficits in expression of emotions;
viii.    Inability to verbalise issues/challenges/feelings;
ix.Deficits inability [sic] to share space, place, objects, songs and reacting violently to those who attempt to share with or in those things;
x.     Falling over/stammer in her feet;
xi.    Swearing and using words to threaten others;
xii.    Challenges with regulating sexualised behaviour;
xiii.   Masturbating in public, masturbating in shared spaces at home;
xiv.    Progressive increase in seizure activity’;
xv.    Echolalia speech
xvi.    Incessant talking
xvii.   Challenges with learning new things;
xviii.     Challenges with her behaviour when expectations are not met;
xix.Demonstrating a complete lack of understanding leading to reacting negatively when others values, beliefs, attitudes and emotions differ to her own;
xx.    Deficits in fine motor skills; and
xxi.   Fixation and obsession on objects, food and relationships.
12.     [The applicant] has high care needs.
13.     Some examples of [the applicant’s] care requirements include:-
i.      Advocacy and education for those working with [the applicant], e.g. school;
ii.     Scheduling and attending appointments;
iii.    Scheduling and attending care conferencing;
iv.     Consulting / working with relevant specialists;
v.     Transporting to and from appointments;
vi.     Developing strategies to address and provide behaviour support;
vii.    Washing clothes and bedding;
viii.     Medication administration;
ix.    Delivering therapeutic interventions;
x.     Recording behaviours;
xi.    Meal preparation;
xii.     Attending to personal care needs;
xiii.     Teaching body awareness, personal care and hygiene habits; and
xiv.     Supporting toileting including menstruation
14.     [The applicant’s] disability requirements are escalating.
15.Since February 2017, [the applicant] has experienced an increase in falls. This has been caused from an escalation to her stammer in her footing and increased gait.
16.There has also been an increase in her frequency of epileptic seizures.
17.Prior to May 2017, [the applicant] would experience an epileptic seizure once every three weeks. Since May 2017, [the applicant] experiences three seizures a week; equating to approximately 12 seizures a month.[3]
[3] Statement of lived experience of the applicant’s foster mother dated 15 August 2017, [11]-[17].
In her oral evidence, the applicant’s foster mother explained the circumstances in which the applicant came into her care. She said she was approached by Territory Families to be the applicant’s carer and having met the applicant, who was very sociable, she decided they were a good fit and that she would take on the applicant’s care. However, she also added that at the time she agreed to take the applicant, she did not appreciate the extent of the applicant’s care needs, which were in excess of what she had been led to understand.
For example, she had been told that the applicant was continent and could brush her teeth, but neither of these things were actually the case at that time. She also discovered that the applicant could be very verbally and physically aggressive. She further explained that there are particular issues associated with the applicant’s disabilities, for example when she has an epileptic seizure she will talk incessantly without stopping, on one occasion talking from 2:30 in the afternoon until 10:30 at night, repeating the same three words over and over, and being unresponsive to any form of intervention.
The applicant’s foster mother also explained the enormous challenges associated with the applicant’s combination of impaired cognition and blindness. She indicated that her assessment was that the applicant’s primary disability was her intellectual disability rather than her blindness, although her intellectual disability interacted with her blindness in complex ways. She also explained that in the time that the applicant had been in her care, her vision had deteriorated greatly. Where a blind person may learn to navigate around a particular environment based on a “map” in their head, given her cognitive impairments, this was essentially not possible for the applicant. In addition, the applicant’s foster mother explained that others find it very difficult to understand the applicant who, at times, becomes extremely violent and aggressive physically and verbally.
The applicant’s foster mother also explained that going to the swimming pool in Tennant Creek was one of the applicant’s main forms of exercise and recreation. She said the pool opens in September and stays open until Easter and she would take the applicant to the pool “every couple of days”. This also allowed both the applicant and her foster mother to socialise with others and do some exercise. She confirmed this occurred three to four times per week, and they would also go to Lake Surprise and the local dam sometimes at weekends during the warmer months.
The applicant’s foster mother also explained that when she took the applicant to the pool she would either take friends with her or friends already at the pool would assist her. She explained that on one occasion the applicant had an epileptic seizure while in the pool and she was able to get the applicant out of the pool, but needed assistance to “move her to the side of the pool”. She explained that this was not easy as the applicant weighs approximately 43 kilograms. However, she was able to do this on this occasion due to an “adrenaline rush” in response to the applicant having an epileptic seizure in the pool.
She explained the applicant loves going to the pool and it was helping her confidence. However, she needs someone in the pool with her at all times and needs two adults supporting her in order to safely access the pool. The applicant’s foster mother explained this was necessary for a variety of reasons, including the need for one person to be in the pool with her and one to help pull her out. In addition, if she did have a seizure, it was necessary for one person to be with her while the other called the ambulance. It may also be necessary in the event that the applicant suddenly became extremely distressed or aggressive.
The applicant’s foster mother also explained that, in addition to the other benefits, the applicant required pool based therapy for muscle tone. She further indicated that in addition to being the sole carer for the applicant, she also worked full-time. Accordingly, she said that from her point of view it was necessary for two support workers to take the applicant to the pool on a regular basis. She explained that it was not necessarily easy for her to drop the applicant off somewhere, as the applicant may become distressed at her leaving, which could result in her being detained for a significant amount of time. She also explained that she already takes the applicant to many activities and appointments including school, medical appointments, visiting friends, to the dam, camping, and accompanies her in the ambulance when required.

Later in her evidence, the applicant’s foster mother confirmed that four hours for two people for about nine months of the year would be sufficient to cover this need. She indicated it would be ideal for the applicant to go to the pool Mondays, Wednesdays and Fridays, and she felt it would be feasible for her to she replace the second support worker on one of those occasions. She also explained that, in addition to making it easier for her to separate from the applicant, having the applicant collected from home by support workers would give her some additional respite.
With respect to respite care, the applicant’s foster mother explained that when the applicant came into her care, it was her understanding that there would be seven days respite every six weeks. However, this was not possible under ordinary foster care arrangements as the applicant cannot simply be placed with another carer like other foster children. She needed to be accommodated in disability supported residential care. She explained that currently, when required, this was paid for by Territory Families as a matter of necessity to maintain the applicant’s current foster care arrangement.
The applicant’s foster mother further explained that from her point of view, it was a condition of her taking on the care of the applicant that she had seven days of respite every six weeks. She explained that this was imperative for her to “reset, take care of herself, have normal relationships with people and recuperate”. She saw this as essential for her to maintain delivery of the current level of care. She explained that caring for the applicant was extremely physically and mentally fatiguing and that she tended to average only four hours sleep per night while living with the applicant. She explained that at one stage she was seeking counselling due to mental stress and considering whether she could continue caring for the applicant. She further explained that even when she is on a break she will be contacted by the disability support service the applicant is staying with and so is unable to have a complete break. In addition, her main family are in Melbourne, which takes two days to travel to from Tennant Creek. She also explained that her partner had moved out of her home due to the impact of the applicant. She explained further that if she did not receive an adequate amount of respite care, she would need to relinquish care of the applicant as it would not be sustainable. Regular respite was also imperative for her to be able to maintain any kind of social life. She also saw this time as important for the applicant to learn to adapt to other environments and other people and build her adaptive skills.
The multidisciplinary assessment
In late 2017, a multidisciplinary assessment was undertaken of the applicant by professionals at Novita Children’s Services and the resulting report was tendered into evidence. The assessment was undertaken by a physiotherapist, Ms Kerry Evans, a psychologist, Ms Lyn Murray, a senior occupational therapist, Ms Zalanyi, and a speech pathologist, Ms Penny Miller.
This assessment indicated that the applicant’s use of language was consistent with a child under five years, her cognitive skills were similar to a child of around two to three years, that she “demonstrates a considerable delay in the development of cognitive abilities outside what can be reasonably be explained by her current level of visual impairment”, and that she has an intellectual disability. It was also concluded that the applicant “will need ongoing, intensive support to learn new skills across all domains including self‑care, social, communication, functional academics, health and safety, community access, and home living skills”.[4] The recommendations made included the following:
In consideration of her meeting DSM-V diagnostic criteria for an Intellectual Disability and the range of complex, multiple developmental delays she presents with, it is recommended that [the applicant] has access to ongoing and comprehensive multidisciplinary intervention services to enhance development, independence and participation in childhood experiences, with a focus on caregiver involvement, training and support using a collaborative teamwork approach to optimise/develop community and mainstream supports. Additionally, assistive technology has been recommended as the assessors consider these items would provide functional and safety benefits for [the applicant], and enhance her ability to access and be involved in recreational, school and community activities.[5]
[4] Multidisciplinary Assessment Report, p 10.
[5] Ibid p 13.
Various intervention services were also recommended including:
Continuation of her pool program and incorporate aquatic therapy activities. The pool environment provides an ideal environment and opportunity to enable [the applicant] to practice standing and walking skills, and strengthening activities. To support the program the following supports would be required:
—Physiotherapy review three to four times a year of the pool program to provide and update ideas for her carer/support workers to optimally support [the applicant] in the pool.
—To access the pool [the applicant] requires two adults to assist with transfers in and out of the pool.
—One adult needs to be in the pool with [the applicant] whilst another person with appropriate pool rescue certification would be required, outside of the pool.
—An appropriate floatation device would be required to ensure [the applicant] is safe in the pool.[6]
[6] Ibid pp 13-14.
Two members of the assessment team, Ms Murray and Ms Miller also gave oral evidence at the hearing, which was consistent with the report.
CONSIDERATION
Support coordination
There is very little information before me which assists in determining with any precision how much support coordination the applicant requires.
The applicant essentially relies upon the fact that in the applicant’s original plan of 27 March 2017, an amount of $23,605.92 was allowed, representing 208 hours over the course of the year,[7] at a rate of $113.49 per hour, being the amount then specified in the applicable Price Guide.[8] Somewhat surprisingly, there was no allowance for this at all in the revised plan of 12 May 2017. The only explanation given for eliminating this support in the very brief reviewable decision of 9 May 2017 was that “Support Coordination is not most appropriately funded by the NDIS”. In other words, no issue was apparently taken with the amount previously allowed. Rather the delegate apparently eliminated the support on the basis that it was more appropriately funded as part of a universal service obligation.
[7] T-documents, T13/88.
[8] NDIS Price Guide – Very Remote, version release date 24 June 2016, p 46.
Perhaps unsurprisingly, the respondent has not sought to defend that positon in the context of this matter. However, for reasons which have not been explained, the respondent takes issue with the amount of support coordination allowed for by the NDIA itself in the original plan. The respondent now maintains that 80 hours of support coordination over six months should be sufficient, but has not put forward any evidence in support of that contention, or explained how that amount has been arrived at. The amount sought by the applicant over a six month period works out to $12,228.32, whereas the amount contended for by the respondent is $9,040.00.
One of the complicating factors for me, of course, is that there are now less than 3 months remaining before the plan is due to be reviewed, and I have no information as to the extent of expenses which have been incurred for support coordination during the currency of the current plan. Noting the respondent’s revised position with respect to this support, it is of course possible that such expenses have been incurred in the expectation of a variation to the applicant’s plan, at least to the extent acknowledged by the respondent as appropriate.
Having regard to the complexity and changing nature of the applicant’s needs, and the level and variety of supports she requires, it is clear that a high level of support coordination is required, including a high level of liaison with her school. I am also conscious of the risk that inadequate support coordination will add to the already enormous workload of the applicant’s foster mother.
Noting that 208 hours per year were initially allowed for coordination of supports, the respondent now accepts that coordination of supports is appropriately funded by the NDIS and no reason has been given as to why a lesser amount should be allowed for this than the amount included in the applicant’s original plan, I have decided that the current plan should be varied so as to restore the level of support coordination contained in the applicant’s original plan, but for a six month period only as sought by the applicant. I have therefore decided to allow an amount of $12,228.32 calculated on the basis of 104 hours over 6 months at $117.58 per hour, as I am satisfied that this level of support coordination is reasonable and necessary for the applicant. I note that funds allocated must be spent in accordance with a participant’s plan, and to the extent these funds are not required during the currency of the applicant’s current plan, they will remain unspent.
Increased social and community participation
In addition to the existing allocation for this item, the applicant seeks funding for two support workers to take the applicant to the pool for 5 hours per week for 24 weeks and 5 days, being from 9 November to 1 May (a period approximately 4 weeks after the hearing until the end of the swimming season), calculated at $66.25 per hour on a weekday evening. The amount sought comes to $331.25 per week.
The respondent’s position is that that level of support is not required. However, having regard to the evidence before me I am satisfied that from the point of view of her physical and social well-being, it is highly beneficial for the applicant to attend the pool in Tennant Creek 3 times per week. I am further satisfied that it is only safe for her to do this on the basis that there are two adults with her at all times, as recommended in the Novita report. I note the need for this arises, in part, from the risk that she may have an epileptic seizure or an outburst of aggression or distress, which necessitates two people being available to contain her and safely exit her from the pool.
Although I do not consider it reasonable to expect the applicant’s foster mother to take the applicant to the pool three times per week given her other commitments and caring responsibilities, I consider it reasonable for her to accompany the applicant to the pool on one of the three visits, such that only one support worker would be required on that occasion. However, factoring in the need for the support workers to collect the applicant and take her to the pool on the other days, I consider that 5 hours per week is a reasonable allowance, noting that this allows for 1 hour and 40 minutes for each visit, including the time involved transporting the applicant to and from her home, and assuming that on the day the applicant’s foster mother goes to the pool, the support worker will meet her and the applicant at their home. This will allow the applicant to safely access the pool three times per week, which will significantly enhance her well-being and facilitate her physical development. In my view, because of the benefits it will yield to the applicant, together with a degree of essential respite for her foster mother, this level of support represents value for money, is likely to be beneficial to the applicant and will facilitate her social participation, to the extent this is possible. It will also assist the applicant to meet her longer term goals, in particular increased participation in community activities. I am accordingly satisfied that this support is both necessary and reasonable for the applicant.
Again, determining an appropriate amount for this support is complicated by the fact that additional time has now elapsed and there are now effectively only two months remaining until the end of the current swimming season. Again, I have no information as to funds which may have been expended in anticipation of an increase in the allowance for this support. Doing the best I can on the information I have, I consider it appropriate to increase the amount allowed for this support by $2,200.00 so as to allow for $275.00 per week for the 8 weeks which remain of the current swimming season. The amount of $275.00 is calculated by reference to the amount of $331.25, reduced by one sixth to reflect the fact that only one support worker will be required for one of the three visits.
Core supports
With respect to the issue of respite care, having regard to the evidence I have referred to, I am satisfied that it is essential to the maintenance of the applicant’s current care arrangements that her foster mother be provided with seven days of respite every six weeks. I am satisfied on the basis of her evidence that if this is not provided, it is probable that the applicant’s foster mother will not be able to continue caring for her, which would be likely to have an extremely negative impact on the applicant, and increase the impact of her disabilities upon her.
At the hearing, the respondent directed me to the Council of Australian Governments “Principles to Determine the Responsibility of the NDIS and Other Service Systems”[9] (COAG Principles) which include the following:
(a)Relevant state and territory authorities will be responsible for meeting the needs of children with disability in out-of-home care and support to carers of children in out‑of-home care, including making reasonable adjustments to meet the needs of children with disabilities.
(b)The NDIS will fund supports required due to the impact of the child’s impairment/s on their functional capacity where a child with disability is in out-of-home care and has support needs that are above the needs of children of a similar age. The diversity of out-of-home care arrangements is recognised and the level of “reasonable and necessary” supports will reflect the circumstances of the individual child. The standard supports provided by the child protection system to carers relevant to their out-of-home care arrangement will continue.
(c)The NDIS will be responsible for support for children, families and carers required as a direct result of the child’s or parent’s disability, including supports that enable families and carers to sustainably maintain their caring role, including community participation, therapeutic and behavioural supports, additional respite, aids and equipment and supports to help build capacity to navigate mainstream services.
(d)The NDIS and the systems providing child protection and family support will work closely together at the local level to plan and coordinate streamlined services for individuals requiring both child protection and/or family support and disability services recognising that both inputs may be required at the same time or that there is a need to ensure a smooth transition from one to the other.
[9] T-documents, T19/144.
The Principles also nominate the following as “reasonable and necessary NDIS supports for eligible people”:
(a)Funding disability-specific family supports, which are required due to the impact of the person’s impairment/s on their functional capacity, including for parents with disability.
(b)Funding the reasonable and necessary disability support needs of children with disability in out-of-home care where these supports are required due to the impact of the child’s impairments on their functional capacity, and are additional to the needs of children of similar ages, including:
·skills and capacity building for children with disability;
·supports to enable sustainable caring arrangements (such as additional respite and outside school hours care);
·home modifications (consistent with other applied principles);
·therapeutic and behaviour support; and
·equipment and transport needs (consistent with other applied principles).[10]
[10] T-documents, T19/152.
As the applicant’s mother explained in her evidence (which was not challenged on this point), the applicant cannot participate in the usual respite arrangements which apply to children in foster care. Because of her significant disabilities, difficult behaviours and complex needs, when her foster mother is not available to care for her, she must be placed in disability supported accommodation on a temporary basis. I see no room for doubt that this expense is attributable to the applicant’s disabilities, is not more appropriately funded as part of a universal service obligation and therefore must be met as a reasonable and necessary support under the NDIS. I note my conclusion in this regard is consistent with the COAG Principles, which expressly acknowledge that additional respite care required as a result of a child’s disabilities so as to enable sustainable caring arrangements for them will be a reasonable and necessary support under the NDIS.
I am also satisfied that provision of this support is reasonable and necessary for the applicant as it:
·will assist the applicant to pursue her goals, aspirations and objectives, in particular ensuring that her carer is supported to sustain their caring role;
·represents value for money, in particular compared to possible alternatives if the applicant’s foster mother is unable to continue caring for her, such as full-time residential care; and
·is likely to be highly beneficial for the applicant in ensuring the maintenance of her current care arrangement, thus creating the opportunity for her to make progress toward her other goals.
As to the appropriate amount, I understand Territory Families have been meeting this expense out of necessity as an essential aspect of maintaining the applicant’s foster care arrangement. I note the cost involved is $4,389.98 every six weeks. As there are approximately two months remaining before the review date of the applicant’s current plan, I consider it appropriate to allow for two respite weeks, or $8,779.96, in addition to the 14 days of respite provided in the plan under review, which I expect will have already been expended.
COGNITIVE ASSESSMENT
I will also allow the amount of $1,020.00 for the cognitive assessment undertaken by Novita. This has provided extremely valuable opinions and advice as to the nature and extent of the applicant’s disabilities and the supports she requires,[11] and in my view therefore also qualifies as a reasonable and necessary support for the applicant.
[11] Novita Children’s Services Tax Invoice dated 24 August 2017.
The respondent contended that this report was “more appropriately funded or provided through other general systems of service delivery or support services … ”.[12] However, the respondent has not identified any other body or agency with a responsibility to meet this cost, which clearly relates directly to the applicant’s disabilities. In these circumstances, I am satisfied this is an expense appropriately met by the NDIS.
[12] Respondent’s Statement of Facts, Issues and Contentions, at [64].
POSSIBLE EXTENSION OF PLAN
As sought by the applicant, I have also considered whether it may be appropriate to extend the review date of the current plan. However the applicant’s needs are complex and changing. As I understand it both her blindness and epilepsy were deteriorating as at the time of the hearing. In these circumstances, and noting the constraints which operate on the Tribunal given its function, I consider it would be appropriate for a comprehensive review of the applicant’s needs to be undertaken in May this year, as currently scheduled. For the reasons I have given, I am not satisfied that I am in a positon to determine the appropriate supports for the applicant for a longer period.
DECISION

The decision under review is varied so as to provide that the applicant’s plan of 12 May 2017 is itself varied so as to include the following additional supports, calculated on the basis explained above:
·Support coordination - $12,228.32;
·Increased social and community participation - $ 2,200;
·Core supports - $8,779.96;
·Cognitive assessment - $ 1,020.00;
·Assistive technology - $10,080, in substitution for the amount of $980.00 allowed in the existing plan;
·Improved daily living - $11,375.70 plus the cost of an orientation assessment, in substitution for the amount of $11, 065.00 allowed in the existing plan; and
·Improved relationships - $5,847.45, in substitution for the amount of $5,614.70 allowed in the existing plan.

I certify that the preceding
52 (fifty-two) paragraphs are
a true copy of the reasons of
the decision herein of
Deputy President K Bean

……………………[Sgd]…………………………………..

Associate

Dated: 6 March 2018

Date of hearing:  12 October 2017
Counsel for the Applicant:           Ms Louise Martin
Solicitors for the Applicant:           Northern Territory Legal Aid Commission
Counsel for the Respondent:        Mr Ben Dubé
Solicitors for the Respondent:      Sparke Helmore Lawyers