Loadsman and National Disability Insurance Agency

[2021] AATA 1990

Loadsman and National Disability Insurance Agency [2021] AATA 1990 (29 June 2021)

Division:                NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s): 2020/5748

Re:Tascha Loadsman

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member W Frost

Date:29 June 2021

Place:Canberra

The Tribunal sets aside the decision under review pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975 and makes a decision in substitution for the decision so set aside that a Hercules PS Track stairclimber and associated modifications at Mrs Loadsman’s home be included in the statement of participant supports in her NDIS plan.

...............................[sgd].............................

Member W Frost

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – Motor Neuron Disease – whether support is reasonable and necessary – whether NDIA should fund a lift – whether NDIA should fund a stairclimber – whether cost of support is reasonable – whether funding for support is consistent with the Support for Participant Rules and Operational Guidelines – decision under review set aside and substituted

Legislation

Administrative Appeals Tribunal Act 1975 ss 43

National Disability Insurance Scheme Act 2013 ss 3-4, 33-35, 100, 103, 209

National Disability Insurance Scheme (Support for Participants) Rules 2013

Cases

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

LZMX and NDIA [2021] AATA 378

Madelaine and NDIA [2019] AATA 4025

McGarrigle v National Disability Insurance Agency [2017] FCA 308

Secondary Materials

National Disability Insurance Scheme – Operational Guidelines – Planning

National Disability Insurance Scheme – Operational Guidelines – Including Specific Types of Support in Plans

REASONS FOR DECISION

Member W Frost

29 June 2021

INTRODUCTION

1. The Applicant, Mrs Tascha Loadsman, is 46 years old and was diagnosed with Motor Neuron Disease (MND) in January 2020. She lives in a two-storey house with her husband, three of their five children and her mother. In July 2020, Mrs Loadsman’s second National Disability Insurance Scheme (NDIS) plan was approved, but it did not contain funding she requested for installation of an elevator in an external lift shaft at her home in order to independently access both levels.[1]

   [1] Exhibit R1, T6, pages 99-103; T12, pages 136-148.

2. In September 2020, following Mrs Loadsman’s request for the National Disability Insurance Agency (NDIA) to conduct an internal review of its decision not to fund an elevator,[2] a delegate of the Chief Executive Officer (CEO) of the NDIA confirmed that original decision, under section 100 of the National Disability Insurance Scheme Act 2013 (NDIS Act). An elevator was determined not to meet the value for money criterion under subsection 34(1)(c) of the NDIS Act.[3] Pursuant to section 103 of the NDIS Act, Mrs Loadsman applied to the Administrative Appeals Tribunal (Tribunal) for merits review of the NDIA’s decision.[4]

   [2] Exhibit R1, T8, page 109; T9, pages 110-120.

   [3] Exhibit R1, T1A, pages 8-12.

   [4] Exhibit R1, T1, pages 1-7.

   ISSUE

3. The Tribunal must decide whether the installation of an elevator (and associated building works) at Mrs Loadsman’s home is a reasonable and necessary support within the meaning of subsection 33(2) of the NDIS Act.

   BACKGROUND

4. In 2013, Mrs Loadsman and her husband bought a two-storey house, which is situated on the corner of two roads in a suburb of Queanbeyan in New South Wales. The two storeys are connected by a single straight staircase. Mrs Loadsman’s bedroom and bathroom (which she shares with her husband) are on the ground floor of the house. The NDIA has separately allocated funding to make them more accessible. The garage is also on the ground floor, which opens out onto one of the roads at the front of the property. Mrs Loadsman can access all areas on the lower level of the house and the immediate external areas on that lower level.  

5. The house originally had a kitchen and lounge room on each level. The Loadsman’s recent renovations of the house removed the kitchen on the ground floor and the adjoining room now has a billiard table. A swimming pool was also installed in the rear yard at the property, which is only accessible by external stairs or by entering from a side driveway. Mrs Loadsman received her MND diagnosis during the course of the renovations. One of her NDIS goals is to have access to all parts of the house; Mrs Loadsman wants to remain in her home and has sought supports to overcome the problems that its layout poses for her mobility and independence.[5]

   [5] Exhibit R1, T11, page 128.

6. Funding was requested from the NDIA for the installation of an elevator to allow Mrs Loadsman to access the upstairs kitchen, lounge room, dining room and balconies, because she will increasingly be unable to safely move up and down the stairs that connect the two storeys. The proposed elevator would be located on the outside wall at the rear of the house. It would require the removal of sections of the external wall on both levels of the house to create two entrances from inside the home to an external lift shaft.  

7. In September 2020, Mrs Loadsman applied to the Tribunal for review of the NDIA’s decision refusing the inclusion of funding for the installation of an elevator and the associated building works in her NDIS plan.

8. On 8 January 2021, with the consent of the parties, the Tribunal made orders which remitted the reviewable decision to the NDIA, pursuant to section 42D of the Administrative Appeals Tribunal Act 1975 (AAT Act). On 15 January 2021, following the NDIA’s reconsideration of the reviewable decision in accordance with the Tribunal’s abovementioned order, it approved the commencement from that date of Mrs Loadsman's third NDIS plan, which continued her reasonable and necessary supports on a pro rata basis and stipulated a plan review date of 16 July 2021.[6]  Mrs Loadsman’s current plan comprises total NDIS funding for six months of $126,145.51, made up of $68,419.90 for core supports, $48,944.61 for capacity building supports and $8,781 for capital supports.[7]

   [6] Exhibit R1, Tab 6.

   [7] Exhibit R1, Tab 6.

9. In mid-April 2021, the Tribunal held an in-person hearing of this proceeding and the parties subsequently made written closing submissions. The Tribunal has considered all documents filed and taken into evidence in this proceeding and, for the following reasons, sets aside the reviewable decision and in substitution makes a decision that the NDIA fund a Hercules PS Track stairclimber and the requisite associated modifications at Mrs Loadsman’s home. In this regard, Mrs Loadsman’s request for the NDIA to fund the installation of an elevator at her home is unsuccessful.  

   LEGISLATION & POLICY

   The NDIS Act

10. The objects of the NDIS Act, set out in section 3, include to:

    (a) in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and

    (b) provide for the National Disability Insurance Scheme in Australia; and

    (c) support the independence and social and economic participation of people with disability; and

    (d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and

    (e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; 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;

    (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; and

    (ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and

    (h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability…

11. Subsection3(3) of the NDIS Act relevantly provides that, in giving effect to the objects of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.

12. Section 4 of the NDIS Act sets out the general principles guiding actions under the legislation, including:

    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 to the extent of their ability;

    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.

    …

    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.

    …

    15)Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.

13. Section 4(17) of the NDIS Act also provides that:

    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:

    …

    (b) the need to ensure the financial sustainability of the National Disability Insurance Scheme.

14. Section 33(2)(b) of the NDIS Act relevantly requires a participant’s plan to include a statement, prepared with the participant and approved by the CEO of the NDIA, that specifies, among other things, ‘the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme’. Subsection 33(5) of the NDIS Act stipulates that in deciding whether or not to approve a statement of participant supports under subsection (2), the CEO of the NDIA, or in this proceeding the Tribunal, 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.

15. The criteria in subsection 34(1) of the NDIS Act sets out what supports will be provided to an NDIS participant, 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.

16. In McGarrigle v National Disability Insurance Agency [2017] FCA 308, Mortimer J observed that:[8]

    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”.

    Relevantly to this proceeding, the factor set out in s 34(1)(e) (“funding or provision of the support takes account of what it 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 times 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.

    [8] At [91]-[93].

    The Rules

17. Subsection 34(2) of the NDIS Act authorises NDIS rules to 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)’ in section 34. In this regard, pursuant to subsection 209(1) of the NDIS Act, the Minister may by legislative instrument make rules regarding the NDIS. Section 35 of the NDIS Act relevantly provides that the NDIS rules ‘may make provision in connection with the funding or provision of reasonable and necessary supports’, including methods or criteria to be applied and supports that will not be funded or provided under the NDIS.

18. The rules relevant to this application are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Rules), which relate to the assessment and determination of the reasonable and necessary supports that will be funded for participants under the NDIS and which the Tribunal is bound to apply pursuant to subsection 33(5)(d) of the NDIS Act.

19. Part 3 of the Rules provides guidance for assessing a participant’s proposed supports under subsection 34(1) of the NDIS Act.

20. Clause 3.1 of the Rules relates to the ‘value for money’ criterion in subsection 34(1)(c) of the NDIS Act and 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 the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);

    (d) for supports that involve the provision of equipment or modifications:

    (i) the comparative cost of purchasing or leasing the equipment or modifications; and

    (ii) whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;

    (e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;

    (f) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).

    Operational Guidelines

21. The NDIA has made operational guidelines to provide guidance on the application of the NDIS Act and the Rules. Relevantly, the NDIS Operational Guidelines – Planning (Planning Guideline)[9] provides that:[10]

    Before any support is added to a participant’s plan, the NDIA must also be satisfied that the support represents value for money in that the costs of the support are reasonable as compared to the benefits achieved and the cost of alternative support (section 345(1)(c)).

    …

    The NDIA will consider value for money both in the context of the relative expense of different supports available to achieve the same goal, and in the context of whether investments in supports will represent value for money over time.

    For example, where an investment in early intervention supports is likely to reduce a participant's overall support needs over time, the NDIA may consider that the support represents value for money as an early investment (even where that value may be realised over the period of several plans).

    In applying the value for money criteria in the NDIS Act and Supports for Participants Rules, the NDIA will, to the extent is permissible under the NDIS Act and Rules, consider the cost of any available in-kind supports and the impact on the sustainability of the NDIS if supports which are already available in-kind are instead purchased by paying cash.

    The NDIA is considerate of the fact that funding supports that do not represent value for  money has the potential to undermine the financial sustainability of the NDIS (section 3(3)(b)).

    For example, where assistive technologies and certain types of aids and equipment are being considered, it is expected the NDIA will generally only fund the minimum necessary or standard level of support required (i.e. a wheelchair with standard specifications and features, as opposed to funding additional items such as bespoke wheels or other luxury finishes).

    Home modifications, as a further example, would generally only be considered where the home to be modified is the participant's principal place of residence and the participant intends to remain living at the premises. Other value for money considerations in this instance would relate to the length of a tenancy agreement for participant's [sic] who are renting, whether the outcomes expected to be achieved by home modifications could be achieved using less costly alternatives or whether supporting a participant with the cost of relocating to more accessible premises would be a more cost effective solution.

    [9] Exhibit R1, T15, pages 167-240.

    [10] ibid., pages 183-184.

1. In addition to the home modification considerations mentioned in the Planning Guideline, the NDIS Operational Guideline titled, Including Specific Types of Support in Plans, further considers home modifications (Home Modifications Guideline) and relevantly states as follows:[11]

   [11] Exhibit R1, Tab 12, Annexure B to the NDIA’s Statement of Facts, Issues and Contentions dated 26 March 2021.

   Home modifications are changes to the structure, layout or fittings of the participant’s home that are required to enable the participant to safely access and move around frequently used areas in their home as a result of their disability.

   …

   the NDIA must also be satisfied, amongst other matters, that the home modification being considered 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 (section 34(1)(c)).

   When determining whether home modifications represent value for money, the NDIA will specifically consider:

   • whether the proposed home modification represents value for money when compared to the cost of other lower cost alternatives, for example less costly home modifications which reasonably achieve the same intended benefits or outcomes, or assistive technology;

   • whether the proposed home modification is cost effective when compared to the cost of other supports such as assistance with the cost of moving to accessible premises; and

   • the expected length of tenure for participants and whether this is commensurate to the cost of the home modifications.

   …

   Generally, the NDIA will fund reasonable and necessary home modifications:

   • to the participant’s primary residence where, due to the impact of the participant’s disability, the participant or their carers are unable to reasonably access and use frequently used rooms and spaces using standard fixtures and fittings;

   • when the participant’s primary residence, in its current condition, has a significant and adverse impact on the sustainability of current living and care arrangements; and

   • where a suitably qualified Occupational Therapist has performed an assessment and recommended home modifications considering all possible alternatives, including the use of equipment.

   …

   The NDIS will generally not fund:

   …

   • capital building additions such as additions of rooms, stories or lifts or inclinators to allow access to multiple levels of a home or steep blocks of land. However, when considering whether the funding of items of this kind is reasonable and necessary the NDIA will also consider:

   i. whether other parts of the house can be reasonably organised as an alternative;

   ii. whether alternate accommodation which is more accessible or more easily modified is available and the cost;

   iii. whether there are compelling factors related to the participant, their family, community or employment which makes moving premises unrealistic; and

   iv. the long term costs and benefits of alternative funded supports against the costs and benefits of the modifications to the home.

   v. See also is the support most appropriately funded or provided through the NDIS? In particular, housing and community infrastructure.

   It is generally expected that home modifications will be suitable for the participant’s anticipated long term needs. Therefore, it is unlikely that further modifications will be funded for the same premises except where there are unforeseen and significant changes to the participant’s needs.

2. The Operational Guidelines represent government policy and, to the extent they are consistent with the relevant legislation, should be applied by the Tribunal unless there is a good reason not to do so.[12] The Tribunal is not aware of any reason not to apply the policies set out in these documents in this proceeding.

   CONTENTIONS

   [12] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. See also Madelaine and NDIA [2019] AATA 4025 at [9].

   The NDIA

3. The NDIA contended that an elevator, costing approximately $58,500,[13] and $105,682.26 in total with the required building works,[14] is unreasonable and does not represent value for money under subsection 34(1)(c) of the NDIS Act, because there are much lower cost supports for Mrs Loadsman to access both levels of her home. These alternative supports were identified during the course of the proceeding as a ‘chairlift’, being a chair attached to a rail fixed to the wall of the staircase, which carries a person sitting on the chair or a ‘stairclimber’, being a mobile device that a wheelchair can be fastened onto and then which carries the wheelchair up and down stairs with another person’s support.

   [13] Exhibit R1, Tab 9, ST2, pages 11-13.

   [14] Exhibit R1, Tab 10, RE1, page 7.

4. Following consideration of the evidence received at the hearing, the NDIA accepted that a chairlift would not be suitable for Mrs Loadsman. The NDIA maintained that its reviewable decision correctly rejected funding for an elevator, but that the correct or preferable decision is to supply a ‘Hercules PS Track’ stairclimber, which would necessarily result in the Tribunal setting aside the decision under review and substituting it with a decision approving funding for a stairclimber and the associated building works. A ‘Hercules PS Track’ stairclimber is ‘a mobile unit that has been developed for operating on straight steps’.[15] It has a load capacity of 160 kilograms,[16] helps ‘safely convey wheelchair users up and down stairs’ and requires a stair width of 650 millimetres.[17]

   [15] Exhibit R1, Tab 11, R8A, page 7.

   [16] Exhibit R1, Tab 11, R8B, page 11.

   [17] Exhibit R1, Tab 11, R8A, page 7.

5. In order to allow use of a stairclimber at the Loadsman’s home, a portion of the upstairs lounge room wall (which is not a load-bearing wall) would have to be removed to give sufficient clearance at the top of the stairs for the wheelchair to turn. The timber trim at the top of the stairs would also need to be removed. The cost of the Hercules PS Track stairclimber is $8,800, with the modification works to the home being approximately $13,650.69, amounting to a total cost of $22,450.69.    

6. The NDIA submitted that, unlike an elevator, a stairclimber can be sold, or supplied to other NDIS participants, if Mrs Loadsman stops using it. A stairclimber is also portable and can be used outside the home, such as to access the pool area of the property and in the community.

7. The NDIA further contended that an elevator does not satisfy subsection 34(1)(e) of the NDIS Act because it is reasonable to expect any family members or carers present with Mrs Loadsman to assist her to use a stairclimber to access the upper level of the house if needed. A short period of instruction is required for a person to learn how to operate the stairclimber. This is provided free by the supplier and once ‘trained’ a person can then ‘train’ others in how to operate the device. Thus, the supplier can instruct one or more members of Mrs Loadsman’s family, who can then instruct anyone else in its use and operation. The NDIA submitted that, if no-one else is present in the home, there is no need for Mrs Loadsman to access the upper level by herself to spend time with her family. The NDIA also contended that it is reasonable to expect Mrs Loadsman’s family to configure their house and to carry out their activities in a way that reduces any perceived need for her to access the upper level of the house.

   Mrs Loadsman

8. Mrs Loadsman submitted that an elevator is value for money when compared with a stairclimber or other proposed supports. She stated that the cost comparison undertaken by the NDIA promotes a staged way of funding and providing supports and effectively acknowledges that the ‘stairlift is a “stop gap” solution’. Additionally, the potential ‘care costs’ relating to the use of the stairclimber were said to be $86,533.10 per annum. In this regard, Mrs Loadsman contended that while the elevator has a larger immediate capital expense, it does represent value for money over time when compared with the staged funding of the NDIA’s proposed stairclimber. Furthermore, in circumstances where Mrs Loadsman may have an extended survival rate and there is no direct evidence as to how long she will continue to live at home, the initial capital cost would be ameliorated over time.

9. Mrs Loadsman contended that the NDIA presupposes that she only needs to go upstairs when her family is present, which is not correct. She wants to maintain her independence. Over her three NDIS plans, Mrs Loadsman has stated her goals to be:[18]

   To remain engaged and central to family – this includes having good means of communication and access to the main living areas of the home

   To have access to all parts of the house, yard and pool to meet social and exercise needs

   To maintain her fitness and active lifestyle

   To support the family in their caring role and to be safe and independent in the home and community

   [18] Exhibit R1, T11, page 128; T12, page 141; and Tab 6.  

10. Mrs Loadsman further submitted that there is no evidence before the Tribunal that the living spaces (in their entirety) on the first floor can be replicated on the ground floor. Significantly, no mention is made of the dining room or kitchen which are significant areas of family interaction. Further, no mention is made of the outdoor living spaces that are only accessible from the first floor. Additionally, unlike and distinguishable from a separate proceeding involving a request for a lift, LZMX and NDIA [2021] AATA 378 (LZMX), the family’s decision to remain in the home is not a ‘lifestyle choice’; the renovation and improvements of the residence were commenced and largely undertaken prior to the knowledge of Mrs Loadsman’s MND diagnosis. It was further contended that, due to their commitments, the family will not always be available to provide support to Mrs Loadsman during the day.

11. Mrs Loadsman submitted that the supply of an elevator and associated building works satisfies all of the ‘reasonable and necessary support’ limbs of subsection 34(1) of the NDIS Act and the Tribunal should therefore approve the inclusion of that support in the statement of participant supports in her NDIS plan pursuant to subsection 33(2) of the NDIS Act.

    EVIDENCE

    Mrs Tascha Loadsman

12. The Tribunal has considered Mrs Loadsman’s ‘Life Experience Statement’ regarding her MND diagnosis and request for the provision of funding by the NDIA for the installation of an elevator at her home.[19] 

    [19] Exhibit R1, Tab 4.

13. Mrs Loadsman attended the Tribunal hearing in-person to give evidence in this proceeding. She informed the Tribunal that she has difficulty with her speech, including due to new medication, and wrote down some responses to questions, which were conveyed at the proceeding by a Tribunal assistant. These handwritten notes were taken into evidence to avoid any doubt as to Mrs Loadsman’s evidence to the Tribunal,[20] noting also that the parties had the benefit of the transcript of the hearing for the purposes of making their written closing submissions. In addition, Mrs Loadsman explained to the Tribunal that it was ‘part of’ MND that she could uncontrollably cry or laugh while speaking, but she was content to persist with her evidence despite occasional difficulty.

    [20] Exhibit A3.

14. Mrs Loadsman confirmed to the Tribunal that she has lived at her current house since 2013. She lives with her husband, Mr Matthew Loadsman, and four of their children, only one of which is still of school age, and her 78-year-old mother. Her husband subsequently told the Tribunal that three of their children now reside with them at the property.

15. Mrs Loadsman told the Tribunal that her stated goals covered in her NDIS plan included being close to family, accessing the community and all parts of her home and the property. Mrs Loadsman also said that she had exercise and social needs. In this regard, Mrs Loadsman said it was ‘absolutely’ important for her to have independence in her home and the community.

16. Mrs Loadsman was asked about her difficulties getting up the internal stairs from the ground floor of the house to the upstairs section. She replied that she ‘cannot’ get upstairs because her ‘legs don’t work’. She currently mobilises in the home with a wheelchair, but until recently was using a walker and an Ankle Foot Orthosis (AFO) on her left leg. Mrs Loadsman said she was waiting for provision of an approved powered wheelchair and AFO for her right leg. However, Mrs Loadsman told the Tribunal that she cannot currently get any wheelchair upstairs and nobody can assist her to do so or get her upstairs. Because she cannot access the upstairs section of the house, Mrs Loadsman said she was unable to participate in family activities undertaken on that level. Additionally, Mrs Loadsman said that she cannot currently undertake any social activities in the courtyard area at the rear of the property, which includes the pool. To access this area, Mrs Loadsman must go out the front of the property and onto the road, because there is no footpath, and down the side of the house and in a side roller door. Mrs Loadsman told the Tribunal that she felt ‘frustrated’, ‘upset’, ‘unimportant’ and ‘like I am already dead’ as a result of not being able to engage in the family’s social activities.

17. Mrs Loadsman was asked how she would feel if she were required to live on the lower level of the house without access to the upper floor. She replied that she would be ‘sad’; this level of the house has limited or low natural light, it was not intended to be a living area, unlike the upstairs section which has full-length windows and is ‘bright and airy’. Mrs Loadsman confirmed the NDIA had recommended a stairclimber and she said this would make her feel ‘so frustrated’ to be dependent on others to operate this device. To this end, Mrs Loadsman said she would need a carer, ‘long before’ such support was required as a result of her impairment. Mrs Loadsman was asked by her representative how an elevator would assist, and she said she would be ‘independent much longer’ and it would be less difficult and safer for others to operate, such as her family and carers.

18. By way of cross-examination, Mrs Loadsman confirmed that she was waiting for an AFO to assist with her mobility. The Tribunal was told by Mrs Loadsman that currently she can walk short distances but cannot go up or down the stairs in her home and always uses ramps or elevators in the community. Mrs Loadsman said she ‘very rarely’ uses the NDIA-funded scooter, but she is waiting for the AFO to be received and stable to see if she can use this vehicle. Presently, Mrs Loadsman is using a wheelchair while she waits for the AFO and will continue using both the wheelchair and the AFO at different times for mobilising. Mrs Loadsman uses a wheelchair for longer distances and a powered wheelchair is preferred for independence.

19. Mrs Loadsman also told the Tribunal that once she is in the powered wheelchair there will be no further transfers required, such as from a foreshadowed hoist and lift. In this regard, Mrs Loadsman confirmed that she has a supra-pubic catheter inserted to assist with toileting from the wheelchair. Mrs Loadsman empties the bag, but sometimes when she is tired her husband performs this task. In addition, Mr Loadsman assists his wife with dressing and getting into the wheelchair. Sometimes Mr Loadsman will help his wife to where she needs to be, but she can also ‘scoot a little’. Mrs Loadsman’s mother will also move her around the house, but once settled in one room she will stay there.

20. Mrs Loadsman said that when she has the AFO, she will ‘hopefully’ be able to use the stairs to get to what she described as the ‘family areas’ of the house. She is required to go up and down the stairs ‘constantly’ for appointments, to which she is taken by her husband, but may soon require taxis; Mrs Loadsman says they ‘take it as it comes’. The Tribunal was told that if Mrs Loadsman’s family is available she does not require assistance with the powered wheelchair. She no longer undertakes any domestic duties and ‘manages to avoid it’.     

21. At present, Mrs Loadsman accesses the rear of the property via the road. In this regard, Mrs Loadsman said an external chair or stairlift was ‘unsuitable’ for a person with MND because the associated loss of trunk support means it cannot be used. Counsel for the NDIA asked Mrs Loadsman whether she currently had trunk control, to which she replied that she had tried a stairlift at a nearby aged care facility but she could not get on or off without slipping as her feet cannot ground her on the footstools. Mrs Loadsman could not recall the model of this stairlift, she had used three different ones, and all had arm restraints.

22. Mrs Loadsman said her husband and children help get her in and out of the pool; she would not use it by herself, but does hydrotherapy and also sees exercise therapists. Mrs Loadsman likes social activities and doing ‘fun stuff’, like rolling in her wheelchair around the paved area at the rear of the property. Her preferred area is on the balcony of the upstairs section of the house ‘looking at our magnificent view’.     

23. By way of re-examination, Mrs Loadsman confirmed that the powered wheelchair was coming ‘this week’ following approval by the NDIA. It has been sourced from ‘FlexEquip’.

24. Following the conclusion of re-examination, the Tribunal asked Mrs Loadsman to confirm the status of the AFO. She currently wears an AFO on her left leg and was waiting for an AFO for her right leg. Mrs Loadsman told the Tribunal she saw ‘no medium to long-term safe way’ of her going up and down the stairs. The Tribunal asked whether there was any recent medical advice regarding the status of her MND. Mrs Loadsman deferred to her treating Neurologist, Professor Rowe, but said it can go ‘slow to fast to slow, you never know’ and can be ‘6 months or Stephen Hawking, 50 years’. In this regard, Mrs Loadsman said her lung function was currently ‘better than “normal” people’. 

    Mr Matthew Loadsman

25. The Tribunal has considered Mr Loadsman’s ‘Statement of Impact’ in relation to the effect on his wife of their interaction with the NDIA regarding the requested elevator.[21] Mr Loadsman gave evidence in-person at the hearing of his wife’s application before the Tribunal. He said that he owns and operates a building and landscaping business, which sees him engaged from approximately 8.30am to ‘whenever a job is completed’, but usually until around 5pm or 6pm. Mr Loadsman told the Tribunal that he now tries to work five days a week and finish at 4pm, but this is often seven days a week. The business is based in Queanbeyan and services all of the Canberra region and surrounds, however Mr Loadsman tries to limit the location of jobs to one hour drive from home so as to be close to Mrs Loadsman should she need him during the day.

    [21] Exhibit R1, T1B, pages 13-14.

26. Mr Loadsman confirmed that three of their sons are now at home, with one having recently purchased a property and moved out.  Two of these adult children living at home have full-time jobs and the other is at school, leaving at approximately 7.45am and returning at 4.40pm, unless he has extra-curricular activities. If so, Mr Loadsman will collect his son later in the evening.

27. Mr Loadsman told the Tribunal that during a workday he has ‘very limited’ ability to provide assistance to his wife but does so if required. Recently, Mr Loadsman was required to return home from a job forty-five minutes’ drive away following Mrs Loadsman having a fall. Only Mr Loadsman and his son can ‘dead-lift’ Mrs Loadsman from the ground and into a suitable position. Mr Loadsman said he provides his wife with daily assistance in relation to toileting, showering, transferring in and out of bed, medical assistance, such as dealing with pressure sores, and dressing and making her safe and as comfortable as possible before leaving for work.

28. Mr Loadsman told the Tribunal that his duties have increased since his wife has been unable to mobilise with her walker. Mr Loadsman said his wife cannot get up to the first storey of their home because there is no opportunity to currently do so. To access the backyard, Mrs Loadsman must exit the home, go onto the driveway to a path and in a roller door at the side of the property. Mr Loadsman was asked about the impact on Mrs Loadsman’s ability to participate in family activities. He replied that there is an ‘exclusion factor’; safety is also an issue when having to exit the property to access the backyard. Mrs Loadsman was said to feel ‘withdrawn’, she is not independent and cannot ‘do life’ with her family as they had planned and worked towards for years.

1. Mr Loadsman described his wife as being ‘fiercely independent’; they have five sons, he was formerly in the Australian Defence Force and she had ‘done a good deal of the job’ raising their children. As a result, Mr Loadsman finds it ‘really, really tough’ seeing Mrs Loadsman feeling ‘worthless’. Mr Loadsman knows that when his wife withdraws it will take ‘three to four days’ to get her back to an emotional state where she does not feel like a burden on her family. Mr Loadsman said the family are trying to build a lifestyle to maintain his wife’s independence for as long as possible.

2. In relation to a stairclimber, Mr Loadsman said this would be ‘another thing’ they ‘would have to do’ and would be ‘another thing sitting around unused’. He did not think it would be adequate, including because the platform at the top is inadequate and a carer would be required to operate the device, which he believed had not been factored in to the NDIA’s costings. A stairclimber was said to be another burden to assist Mrs Loadsman, he cannot use one and had no training in their use.

3. The advantages of an elevator were said to be for Mrs Loadsman to have ‘an element of freedom and independence’, including to access all areas of the house. Mrs Loadsman could enter into the backyard area; she enjoys gardening in raised planter boxes. There is a barbeque area, pool and roller door out into the community. The elevator is seen by Mr Loadsman as an ‘independent opportunity’, while other options remove his wife’s independence. In this regard, the powered wheelchair will improve Mrs Loadsman’s independence, to move around the house, assist with loading her into a purpose-built vehicle and maintaining her mobility. Mr Loadsman said it was not viable to leave Mrs Loadsman on one level of the house.

4. Under cross-examination, Mr Loadsman acknowledged he was aware that Mrs Loadsman’s current NDIS plan included funding to access the community, but was unaware that this could include funding a support worker to collect her for appointments or other activities; this funding had not been used. Mr Loadsman also acknowledged it was possible that if his wife required help, she could access this by calling a carer, however he said there would be a ‘time lag’ involved. Mr Loadsman did accept that there would be no such lag for care associated with attending scheduled appointments. Mr Loadsman said he currently manages these appointments within his own commitments and balancing the running of his business. Mr Loadsman acknowledged that there was the potential for carers or support workers to assist with his wife, if required, in circumstances where he was delayed at work. In addition, Mr Loadsman said a support worker could be scheduled if needed at regular times throughout the day but said that care was ‘not included’ with devices such as a stairclimber.

5. Mr Loadsman told the Tribunal that he would do whatever it takes to assist his wife and would ‘absolutely not’ put barriers in front of her. He had dedicated his life to ‘this woman, to [his] country and to [his] children’. To this end, Mr Loadsman was asked about the proposal from the occupational therapist, Ms Hammond, for an access ramp to the rear of the property to be created along the side of the house, which would not currently be possible because he was building a 6 metre by 9 metre shed to house ‘excavators and all my tooling’. The shed was built ‘late last year’, after the in-home assessment by Ms Hammond. Mr Loadsman said he ‘needed’ to build the shed and there was a path external to the property able to be used by his wife. Mr Loadsman was asked whether the shed could be re-positioned on the property. He said this was ‘do-able’, but the tooling would not be able to be carried from a health and safety perspective. Furthermore, Mrs Loadsman needs to access the garage at the front of the property to get into a car. It was put to Mr Loadsman that he could park his car and machinery on the street, to which he replied that his excavator would need to be registered and trailered.

6. Currently, Mr Loadsman helps Mrs Loadsman up and down the stairs. He told the Tribunal that he has ‘always been willing to trial’ a stairclimber and be trained in its use. He accepted that he or his son could, at times, be Mrs Loadsman’s carer at the home. Mr Loadsman said his reference to a stairclimber being ‘unused’ was because Mrs Loadsman would be unable to independently use one. There was said to be no difference between the current required assistance for Mrs Loadsman and a stairclimber. Mr Loadsman said the powered wheelchair would be used on the upper level of the house and understood his wife would be able to access this level with a stairclimber but also understood the ‘impact of that getting put in’.

   Ms Kyleen Slatyer – Occupational Therapist

7. The Tribunal has considered the ‘Complex Home Modification Assessment Template’ dated 3 July 2020 and completed by Ms Slatyer following her assessments in May 2020.[22] Ms Slatyer stated that, as Mrs Loadsman’s MND progresses, she ‘will need increasing levels of physical assistance with daily tasks’ and at present ‘the biggest impact of MND on Tascha is difficulty with mobility and walking, and subsequent fatigue’. In this regard, ‘full time use of a wheelchair is expected’ in future, while noting that the ‘rate and progression in MND cannot be predicted’.[23] Ms Slatyer stated that an ‘enclosed platform lift at the rear of the property with entry to both floors is the proposed solution for internal and external access’ to the home.[24] Two further reports from Ms Slatyer have also been considered by the Tribunal in its preparation of these reasons.[25]

   [22] Exhibit R1, T3, pages 63-84.

   [23] ibid., page 65.

   [24] ibid, page 72.

   [25] Exhibit R1, T7, pages 104-108; Exhibit R1, Tab 3.

8. Ms Slatyer gave evidence by telephone to the Tribunal and confirmed her opinion that the supply of an elevator or external platform lift was a superior or preferred support to others recommended by Ms Hammond, the occupational therapist engaged by the NDIA to undertake an assessment of Mrs Loadsman and her home.

9. Ms Slatyer was referred to Mrs Loadsman’s order of a powered wheelchair from ‘FlexEquip’, which was a ‘Glide Centro’ mid-wheel drive powered wheelchair said to be more suitable to others because of its manoeuvrability; Ms Slatyer said it has a small turning circle ideal for in-home mobility and its position can be changed by tilting the chair, which provides relief from respiratory symptoms. It also has a high back rest which addresses Mrs Loadsman’s posture issues and is suitable for wheelchair taxis. The operational weight of the powered wheelchair was said to be between 130 kilograms and 150 kilograms without the user seated in it and depending on the features fitted to the unit.

10. Ms Slatyer was asked about a stairclimber with a maximum weightbearing capacity of 160 kilograms and confirmed that with the current ordered powered wheelchair it would be above the weight capacity. Additionally, Ms Slatyer said the size of the internal stairs precluded its use indoors. She also had concerns about Mrs Loadsman’s safety, security, privacy and dignity if it were used outdoors and said it would not be the community’s expectation that a person accessed the different levels of their home by external means. Ms Slatyer told the Tribunal that a stairclimber would limit Mrs Loadsman’s independence because it would require operation by another person and therefore cause her to be ‘100% reliant’ on another person being present in the home. Ms Slatyer queried how Mrs Loadsman can have complete access around her home without a carer being properly trained.

11. In relation to the Hercules Domino stairclimber with a 400 kilogram capacity, Ms Slatyer told the Tribunal that it would not fit within the internal stairs; it could only be installed on the outside of the property. The footplates of the wheelchair were said to hang over the base of this stairclimber by 100 millimetres and Ms Slatyer recommended checking whether it was safe and acceptable to fit the wheelchair on the unit. For instance, Ms Slatyer queried whether the wheelchair would catch on the stairs or could be reclined when using the stairclimber.  Ms Slatyer told the Tribunal the Hercules Domino stairclimber was unavailable for hire or trial; lightweight options were in stock to trial or hire, but the 400 kilogram capacity unit was sourced from overseas and was required to be purchased.

12. Ms Slatyer told the Tribunal an external elevator would allow Mrs Loadsman to ascend and descend the floors in the house safely and with ‘dignity and privacy’. It would help Mrs Loadsman meet her goals in relation to her role as a mother and wife, provide access to all levels and spaces of the home and continue her social participation.

13. Under cross-examination, Ms Slatyer told the Tribunal that the powered wheelchair had been obtained for Mrs Loadsman through the ‘FlexEquip’ scheme, which is operated by the MND Association, who own the equipment. Mrs Loadsman is able to access necessary equipment from the MND Association through membership of the organisation funded under her NDIS plan. Ms Slatyer said she understood the powered wheelchair had been shipped and therefore assumed that Mrs Loadsman had signed an agreement for the device. Ms Slatyer did not think a second powered wheelchair would be issued under the FlexEquip scheme, but acknowledged she had no experience in seeking a second wheelchair and that a case could be made to the FlexEquip scheme for additional equipment. Ms Slatyer also agreed that the NDIA itself could provide a wheelchair to Mrs Loadsman.

14. Ms Slatyer was again asked about the current wheelchair to be delivered to Mrs Loadsman. She said there ‘may be’ other chairs that can fit the internal stairs and would need to look at Mrs Loadsman’s particular needs and the device’s platforms. Ms Slatyer was referred to Ms Hammond’s assessment and recommendation that a wheelchair be chosen that was appropriate for use on a stairclimber. She acknowledged this was a consideration, but said that the wheelchair must suit Mrs Loadsman’s needs.

15. Counsel referred Ms Slatyer to the Hercules website exhibiting wheelchairs with footplates over the edge of the device. Ms Slatyer said she had not looked at it ‘specifically’, she was unsure it could be done and agreed she would need to undertake further enquiries. In relation to Ms Slatyer’s evidence regarding the unsuitability of the Domino People 400 kilogram capacity model, she acknowledged that her written report on this device was more qualified than her oral evidence at the hearing in examination-in-chief. In this regard, Ms Slatyer said she would defer to a qualified builder if it was said the width of the internal staircase was between 845 millimetres and 855 millimetres and that this difference would not present a problem for the installation of the stairclimber. Ms Slatyer said this latter point was an issue for the supplier of the Domino People stairclimber.  

16. Ms Slatyer agreed that a stairclimber would only be able to be used externally when there was good weather, otherwise it would be used internally, but that it was unlikely Mrs Loadsman would venture outside in bad weather except for appointments or social events. In this regard, Ms Slatyer agreed that Mrs Loadsman could access a car through the garage on the lower level of the house, rather than the steps at the rear of the property. Ms Slatyer also agreed that people can be trained to use the stairclimber and once this skill is acquired that person can train others in its use. Ms Slatyer confirmed she had ‘anecdotal experience’ from various people in the community receiving services, including people with MND, that support workers did not have relevant training in an aspect of care for a person’s disability. Ms Slatyer was asked whether she was aware that the NDIA can require support workers to have specific training in the use of a stairclimber to provide support to an NDIS participant and in relation to work health and safety requirements. Ms Slatyer acknowledged she did not appreciate this capacity of the NDIA. 

    Mr Supachok Suthayakhom – Occupational Therapist

17. The Tribunal has considered the report prepared on 9 October 2020 by Mr Suthayakhom following his assessment on 25 September 2020, which ‘strongly recommended’ Mrs Loadsman be provided with an elevator to increase her independence and participation and decrease her reliance on family and friends.[26]  Mr Suthayakhom confirmed that he had read Ms Hammond’s occupational assessment report and was asked why he had not considered a stairclimber in his report. Mr Suthayakhom responded that this was because Mrs Loadsman ‘would still like to remain independent’ and a stairclimber would not give her such independence including throughout the home; she would require assistance between each level.

    [26] Exhibit R1, Tab 7.

18. Mr Suthayakhom told the Tribunal that he had conducted his own investigations into stairclimbers and said that a Hercules ‘PS Track’ with a 160 kilogram weight-bearing capacity is ‘mainly used for sports wheelchairs’ given their lighter fabrication and its load capacity would be unusable due to the combined weight of a powered wheelchair and Mrs Loadsman. Additionally, Mr Suthayakhom said a Hercules sales representative told him the ‘Domino People’ with a 400 kilogram weight-bearing capacity was manufactured in Italy, which would take 4 weeks, and between 4 to 6 weeks for delivery. It required a large landing space for transfers and was possible to use if there were home modifications as set out in Ms Hammond’s report. However, an attendant would be required, which would remove Mrs Loadsman’s independence to travel between the floors of the home. 

19. By way of cross-examination, Mr Suthayakhom confirmed that family assistance was factored into his considerations in relation to assisting Mrs Loadsman with moving between levels of the home. Mr Suthayakhom was asked about the operation of a stairclimber and whether the required assistance between levels of the house was different to helping her walk up the stairs. Mr Suthayakhom replied that it depended upon the frequency of her moving between these levels. At the time of his assessment, Mrs Loadsman was finding it difficult to walk upstairs.

20. Mr Suthayakhom said he was not aware of stairclimbers, so recently ‘updated himself’; he was unaware of particular models or products and ‘looked them up’. This occurred the day before he gave evidence to the Tribunal and comprised internet searches and conversations, including two telephone calls with ‘Total Mobility’ and one call with ‘Hercules’. Mr Suthayakhom confirmed he did not have direct experience of stairclimbers but knew of the ‘theory’ of their use. He has not worked with anyone using a stairclimber.

21. Mr Suthayakhom agreed that Mrs Loadsman would not be segregated from her family if she had a stairclimber and that some of these devices could carry Mrs Loadsman and her wheelchair. Mr Suthayakhom also agreed the statement in his report regarding Mrs Loadsman’s family ‘all living and sleeping upstairs’ would be wrong if her husband was sleeping on the same level. He acknowledged that communication was possible through intercoms on each level of the house and that someone in Mrs Loadsman’s family could use the stairclimber for her to participate in family activities. Additionally, Mr Suthayakhom agreed that emergency services can use the steps in and around the house to effect any required transfers of Mrs Loadsman and that houses do not normally have lifts installed. However, Mr Suthayakhom did not agree that he had exaggerated this aspect of his report, stating that it depends on the injury suffered by a person, but acknowledged that emergency services personnel deal with a range of situations and do not require the use of hospital beds for transfers from a house. In this regard, Mr Suthayakhom agreed that a person could be transferred from home and then at the hospital put into a hospital bed meaning there was no requirement for any hospital bed carrying capacity between the levels of the Loadsman’s house.

    Ms Deborah Hammond – Occupational Therapist

22. On 6 November 2020, following an in-home assessment on 28 October 2020, Ms Hammond provided a report regarding the home modifications requested by Mrs Loadsman.[27] The Tribunal has considered this report which relevantly noted that Mrs Loadsman ‘requires maximal support to negotiate internal stairs’ and that she ‘reported holding onto the single handrail and being supported up/down the stairs by her husband’. Ms Hammond advised that her preferred option to enable Mrs Loadsman to participate as fully as possible in family life at home was the use of a Hercules PS Track stairclimber, including because it ‘is a cost-effective solution’ compared to an elevator and can be used by other people when no longer required by Mrs Loadsman. It could also be implemented in a timely manner.

    [27] Exhibit R1, Tab 5.

23. Ms Hammond’s report noted that Ms Slatyer supported the installation of an elevator, but had not addressed installation costs, disruption to the family of those works, the associated lead time and the ‘limited time period Ms Loadsman will benefit from the lift’. Ms Hammond further stated that when Mrs Loadsman’s mobility deteriorates in the short to medium term, she will ‘require attendant support during the day and support from family overnight’, which ‘will be required for her to exit the property’. Ms Hammond agreed that relocating to another property was not feasible for the family.   

24. The Tribunal has also considered Ms Hammond’s supplementary report dated 19 March 2021, in which she considered other supports and confirmed again that a stairclimber was her preferred option.[28] She relevantly stated that a stairclimber ‘may be able to be used on the internal stairs, however, I envisage there may not be sufficient clearance at the top of the internal stair for the attendant to turn with the device. A trial is recommended’. Furthermore, Ms Hammond noted that the weight of Mrs Loadsman’s wheelchair ‘will need to be considered when prescribing to allow the use of the PS Track stair climber,’ which may also ‘require Ms Loadsman having a second wheelchair for in home use and one for community use’.

    [28] Exhibit R1, RE2A, pages 94-99.

25. Ms Hammond appeared at the hearing of this proceeding by Microsoft Teams and was referred to the Glide Centro mid wheel drive powered wheelchair supplied by FlexEquip, which Ms Slatyer had arranged for Mrs Loadsman. Ms Hammond said she was familiar with the particular powered wheelchair provided to Mrs Loadsman and agreed it could be used both indoors and outdoors, however suggested a ‘more low key’ wheelchair for in-home use because of its ‘big footprint’, wide wheel base and it not being easily manoeuvrable. Ms Hammond said it is ‘quite a wide wheelchair’ which can ‘take up a lot of space’.

26. Ms Hammond said that she had envisaged a ‘lighter’ weight wheelchair being used by Mrs Loadsman in her home; it would be ‘ideal’ to have a wheelchair with a capacity loading of less than 160 kilograms that could be taken up and down the internal stairs of the home. She considered two wheelchairs were ‘very common’ and ‘what we would recommend’, with one for indoor use and one with a larger footprint for use in the community. In this regard, the anticipated Glide Centro wheelchair would be used in the community given its stability. Ms Hammond told the Tribunal she considered Mrs Loadsman required a support worker for one to two hours in the morning to assist with transfers and activities of daily living. She also may require support at lunchtime and at the end of the day. Mrs Loadsman would require ‘continuous support’ if there were cognitive concerns.

27. Under cross-examination, Ms Hammond said that if Mrs Loadsman were to use a powered wheelchair she will require a stairclimber with the footprint to accommodate one. A trial is ‘best practice’ and required by the NDIA. If this was not possible, Ms Hammond said she had no ‘preference’ between stairclimbers.

1. Ms Hammond agreed that the current powered wheelchair Mrs Loadsman was to be using meant the only presently suitable stairclimber product was the Hercules Domino People 400kg unit, but said that there were other ‘suitable’ options, such as using a lightweight wheelchair in the home which would ‘fit’ with other Hercules products. Ms Hammond disagreed that a lightweight chair would not meet Mrs Loadsman’s in-home care needs and noted that a seating system can be fitted to both manual and powered wheelchairs that would meet her postural needs.

2. Ms Hammond disagreed that stairclimbers should not be used in extreme weather, but said that she would not recommend their use outside in wet weather, but that the external stairs were ‘wide enough’ for this device. However, she considered a trial of the device would need to be conducted to determine suitability. In this regard, Ms Hammond said that Ms Slatyer’s report did not indicate whether she had contacted Hercules regarding a trial of their stairclimbers and had made an assumption that this was not possible. Ms Hammond understood that the 400kg unit was ‘built to order’, but that Hercules would ‘have a strategy’ about how it could be trialled.

3. Ms Hammond agreed that a stairclimber must be operated by an attendant and said that when Mrs Loadsman was using a powered wheelchair she will require a support worker to perform functional tasks, regardless of whether there was an elevator or stairclimber at the home. Ms Hammond agreed that an NDIS-funded support worker would need to be trained in the use of a stairclimber and said that these workers could be employed by Mrs Loadsman using the funding in her NDIS plan.

4. Ms Hammond told the Tribunal her reports did not address the benefits of an elevator because she was asked to assess the ‘access issues’ in relation to the home and any required alterations. However, Ms Hammond said she did make comment on the recommendations made by Mrs Loadsman’s occupational therapists. Ms Hammond told the Tribunal that she disagreed that an elevator would reduce the costs and reliance of the informal care provided by family members or that it would lead to increased safety for Mrs Loadsman. Ms Hammond also disagreed that an elevator would facilitate outdoor exercise, recreation, maintain her independence and mobility around and in her home in accordance with her stated goals.  She said it was reasonable for Mrs Loadsman to go through the garage, around the property and enter the rear using her currently prescribed wheelchair.

5. By way of re-examination, Ms Hammond told the Tribunal that there were ‘multiple different’ lighter wheelchairs to the Glide Centro model that were suitable for Mrs Loadsman to use on a stairclimber. Ms Hammond also expanded on the reasons an elevator would not reduce the reliance on family and said that Mrs Loadsman would need assistance on both levels to undertake ‘all the tasks’ she wished to do, which requires a support worker regardless of the installation of an elevator. She said a stairclimber was a ‘safe way’ to move between the floors of the house and does not add any risk to Mrs Loadsman if done correctly; an elevator would not increase her safety. Ms Hammond further said that a stairclimber would be a ‘very functional device’ for use in and out of the home whenever Mrs Loadsman required a wheelchair.     

   Mr Peter Leary – Licensed Builder and Accredited Building Consultant

6. The Tribunal has considered the report prepared in this proceeding by Mr Leary from Peak Consulting.[29] Mr Leary’s report confirmed that ‘some modifications are required’ for the use of a stairclimber, requiring the ‘removal of a single wall section’, which is not structural, and making good all related surfaces. The costs were calculated at $12,124.20.[30] The report also estimated the ‘substantial modifications’ required for the installation of an external elevator to be $47,182.26. This included the requirement for development and building approval and ‘extensive on-site work ranging from drainage alterations, concrete underpinning, substantial external envelope alterations and the making good of all adjacent surfaces’.[31]

   [29] Exhibit R1, Tab 10, RE1, pages 1-93.

   [30] ibid., page 7.

   [31] ibid.

7. Mr Leary appeared in-person at the Tribunal hearing and was referred to the section of his report which stated that the internal staircase walls were ‘parallel’. He told the Tribunal that the walls were ‘reasonably parallel’, with the exception of 5 millimetres. Mr Leary said there was 150 millimetres ‘free space’ between the walls if using the Domino People. That is, 75 millimetres on each side if that stairclimber was used centrally on the staircase. At the lowest clearance or space between the walls of 845 millimetres at the lower level there would be 72.5 millimetres on each side if the unit was run centrally up and down the stairs, being a 2.5 millimetre reduction on each side from the maximum clearance on the staircase.   

8. Mr Leary estimated it would take one week to make the modifications associated with the stairclimber option. This allowed for contingencies such as allowing a full day for demolition, even though it may only take 6 hours, so as not to have different tradespeople overlapping on site, finish their specific job and clean up. 

9. Under cross-examination, Mr Leary confirmed that the quotes provided in his report incorporated the set up time for the tradespeople. Mr Leary told the Tribunal that the minimum clearance on the staircase of 845 millimetres was at the lower end of the stairs on the ground floor. Mr Leary was taken to a brochure from Hercules annexed to his report that stated the minimum viable staircase width for the Domino People was 85cm (or 850 millimetres)[32] and then to his written opinion that ‘the staircase is technically not of sufficient width (5mm narrower than ideal) although still likely to be usable’.[33] In this regard, Mr Leary did not agree that his use of the word ‘technically’ in the report was superfluous because there was between 72.5 millimetres and 75 millimetres on either side of the walls that would ‘not prevent operation’ of the Domino People. Mr Leary conceded that he had ‘never operated’ a stairclimber and acknowledged that he was only qualified to determine any building modifications. Mr Leary said the manufacturer of the Domino People should be approached to determine its suitability for the particular staircase.

   [32] Exhibit R1, RE1, page 60.

   [33] Exhibit R1, RE1, page 12.

10. Mr Leary agreed that there would be some disruption to Mrs Loadsman and her family at the home due to the proposed modifications to allow use of a stairclimber, but said that if he were conducting the works, necessary steps would be taken to ensure air quality and the safety of occupants. He confirmed that his cost estimate accommodated these factors and for steps to be taken in relation to adjacent surfaces, such as carefully demolishing structures by hand to minimise dust, a full trade clean up and removal of debris.   

11. In re-examination, Mr Leary confirmed that the details provided by the structural engineer, Mr Linden Coot, in his annexed report, would allow Mr Leary to provide an estimated cost of the minor additional structural works that were not initially accounted for to allow use of a stairclimber. Following a break in the hearing to allow this costing process to be undertaken, Mr Leary told the Tribunal the estimated total cost of this additional work would be $756.49, including labour, materials and a 20% margin, which had also been applied to his other costings.

12. Mr Leary was asked about the disruption to Mrs Loadsman’s family if an elevator were to be installed, including the associated dust and air quality. He told the Tribunal that installation of an elevator was ‘far more disruptive’ and take considerably longer than the works required to operate a stairclimber. The scale and scope included working over two levels of the house, removing brick by hand on both levels of an external double brick wall which would require alteration and modification. Additionally, the dust was said to also likely be greater than the proposed works for a stairclimber.     

    Professor Dominic Rowe – Neurologist

13. Professor Rowe provided a report dated 24 February 2021 to the NDIA regarding Mrs Loadsman, which relevantly stated as follows:[34]

    Ms Loadsman has lower limb onset of amyotrophic lateral sclerosis, the commonest form of motor neurone disease. Whilst this disease has impaired her mobility, and she is increasingly troubled by discomfort and spasticity related to this disease she is still very functional.

    Ms Loadsman has difficulty with mobility and needs assistance for any distance. Certainly outside the home she requires mobility aids for safety. Ms Loadsman will continue to be able to sit upright unassisted in a chair and wheelchair for years.

    Her mobility would be assisted by the use of a powered mobility aid, either self propelled or propelled by an attendant. This may well be required over the next three to six months.

    With the progression of motor neurone disease, she will need increasing assistance for her activities of daily living. These include tasks of daily hygiene as well as other tasks related to her daily care.

    Ms Loadsman has amyotrophic lateral sclerosis, which is a progressive and ultimately fatal condition. It is unlikely that she will require palliative care over the next year as her progression is such that her major threat at the moment is to her mobility.

    For the foreseeable future, it is highly likely that Ms Loadsman will be able to continue periods of time sitting upright unassisted either in appropriate seating or in a powered chair. In addition, it is highly likely that Ms Loadsman will retain upper limb function to enable her to operated [sic] switches on her assistive and adaptive devices over the next one to two years.

    It should be emphasised that motor neurone disease, particularly amyotrophic lateral sclerosis is a very variable disease. None of the parameters that immediately threaten her survival are relevant. Her breathing and oximetry are normal as are her nutrition and hydration. At such a young age it is imperative that she be afforded all the assistance that can be provided under the National Disability Insurance Scheme.

    This uncommon disease has patients that survive years and even decades. Particularly given her age, it is imperative that we support her as much as possible in her home environment.

    [34] Exhibit R1, Tab 10, R6A, pages 158-159.

14. Professor Rowe gave evidence at the hearing by Microsoft Teams and told the Tribunal that Mrs Loadsman is able to sit upright unassisted as long as she has appropriate seating or a powered wheelchair. The latter is required because often people with MND are unable to transfer and need to be in a chair for extended periods of time without assistance, whereas a manual unpowered wheelchair requires the assistance of others to operate.

15. Professor Rowe said that Mrs Loadsman is an ‘extremely high falls risk’ due to her MND, which affects her fine motor control and results in a loss of balance and stiffening of her limbs. She is able to transfer but not walk ‘for any distance’. Mrs Loadsman’s mobility is assisted, but not completely alleviated, by a powered wheelchair. Professor Rowe told the Tribunal that Mrs Loadsman can use the powered wheelchair to go in and out of the house and her horizons are not limited to ‘being locked up’ in the living room; she can live a ‘functional existence’.         

16. By way of cross-examination, Professor Rowe agreed that there were different sorts of powered wheelchairs, such as a lighter model for inside a home and a larger one for outside, but that Mrs Loadsman’s build and ‘disease state’ required her to have a ‘more robust’ chair in both settings. These were said to start at 150kg and went up to 250kg, however Professor Rowe also acknowledged that occupational therapists are experts in seating and recommending particular wheelchairs to suit a person’s needs.  

17. Professor Rowe told the Tribunal that even with a powered wheelchair Mrs Loadsman would still require support, albeit ‘not necessarily full-time’, but that this would change during the course of her disease. Currently, Mrs Loadsman is able to control and manipulate a powered wheelchair, in circumstances where her MND predominantly affects her lower limbs and speech. As the MND progresses, she will require assistance with ‘attendant care’, such as personal care and activities of daily living. Professor Rowe told the Tribunal that the ‘world changes dramatically with this disease’.

18. Professor Rowe was asked about the future trajectory of Mrs Loadsman’s MND and he said that none of the major risk factors that threaten her survival are ‘currently in play’; she is a ‘falls risk’, but her breathing is ‘fine’, together with her mood and hydration. Professor Rowe said he knew of a person that had lived with MND for 36 years, but was also aware that the shortest period of time from symptoms to death was 8 weeks.  There is a ‘huge spectrum’ of survival, but Professor Rowe estimated that Mrs Loadsman is on the ‘longer end’ of this spectrum.  

19. Mrs Loadsman’s representative informed the Tribunal that she had undergone surgery for the insertion of a supra-pubic catheter. Professor Rowe agreed that once this was in place she would ‘definitely’ require less assistance, although noted there is ‘some risk’ associated with this device.

    CONSIDERATION

20. The decision for the Tribunal is whether the installation of an elevator and accompanying building works at Mrs Loadsman’s home is a ‘reasonable and necessary support’ within the meaning of subsection 33(2) of the NDIS Act to be included in the statement of participant supports in her NDIS plan. This requires the Tribunal to be satisfied that the requested support meets all limbs in subsection 34(1) of the NDIS Act. For the following reasons, the Tribunal is not satisfied that provision of funding for an elevator to Mrs Loadsman meets the value for money criterion required by subsection 34(1)(c) of the NDIS Act. However, based on the evidence, the Tribunal is satisfied that the correct or preferable decision is for the decision under review to be set aside and for a decision in substitution to be made that an alternative support, being a Hercules PS Track stairclimber (and the requisite modifications), be included in Mrs Loadsman’s statement of participant supports in her NDIS plan.

    Wheelchair

21. Mrs Loadsman conceded that there was no dispute that a Hercules PS Track stairclimber could be used in her home as configured following the appropriate building works. However, she did dispute its suitability due to its weight-bearing capacity of 160 kilograms. For the following reasons, the Tribunal is satisfied that the Hercules PS Track stairclimber is a suitable support for Mrs Loadsman having regard to the type of wheelchair she can be provided for internal use while using the stairs at her home.  

22. At the hearing, the Tribunal was informed that Mrs Loadsman was recently approved to receive a powered wheelchair known as a Glide Centro mid wheel drive, weighing between 130 and 150 kilograms.[35] Accordingly, some evidence provided at the hearing focussed on its compatibility or otherwise with the Hercules stairclimbers identified by the NDIA, among other proposed supports. While Mrs Loadsman’s Glide Centro powered wheelchair can be used both indoors and outdoors, Ms Hammond, the occupational therapist relied on by the NDIA, did not recommend its use inside the home given its large footprint and manoeuvrability issues. In this regard, a more ‘low key’ powered wheelchair was recommended by Ms Hammond for indoor use, while retaining the Glide Centro model for use outside the home. Ms Hammond’s evidence was that there are multiple available options for a lightweight wheelchair, which would weigh approximately 35 to 55 kilograms when fitted with a power unit and an appropriate seating system for Mrs Loadsman. Ms Hammond’s reports in this proceeding noted that selection of a wheelchair should consider its suitability with the Hercules PS Track stairclimber. Ms Hammond was consistent in her written and oral evidence that a lightweight powered wheelchair should be used in the home with a Hercules stairclimber as opposed to an elevator being installed.  

    [35] Exhibit R2.

23. In this regard, Ms Slatyer, one of the occupational therapists called to give evidence by Mrs Loadsman, expressly stated in her report that a lightweight wheelchair could be used by Mrs Loadsman in her home, although not in ‘the late stages of MND’.[36] Ms Slatyer also identified two suitable lightweight models, being a ‘Breezy P100’, weighing 38.8 kilograms and costing $3,995, and the ‘Freedom Chair’, weighing 21 kilograms and costing $4,190. Both of these wheelchairs would be compatible for Mrs Loadsman’s use on the PS Track stairclimber. In her evidence to the Tribunal, Ms Slatyer agreed that selecting a powered wheelchair for Mrs Loadsman to use on a stairclimber was a consideration, but that it also depended on her needs. Additionally, and despite Mrs Loadsman’s contention to the contrary, her treating neurologist, Professor Rowe, recommended using a powered wheelchair and did not discount use of a lightweight model. While Professor Rowe suggested a ‘robust’ wheelchair starting at approximately 150 kilograms was required for Mrs Loadsman, he also agreed that an occupational therapist was best placed to recommend a suitable wheelchair for her needs. To this end, both Ms Slatyer and Ms Hammond considered that Mrs Loadsman could use a lightweight wheelchair in her home. The Tribunal was told that this second wheelchair could either be sought through the FlexEquip scheme operated by the MND Association or provided directly by the NDIA.     

    [36] Exhibit R1, Tab 3, page 2.

24. Having regard to all the evidence, the Tribunal is satisfied that one of the identified lightweight powered wheelchairs can be used by Mrs Loadsman inside her home. This type of wheelchair, with Mrs Loadsman seated on it, would be suitable for use on the Hercules PS Track stairclimber. A second wheelchair would also involve no additional cost because Mrs Loadsman’s NDIS plan contains more than $8,000 for assistive technology such as a wheelchair.[37] This funding is sufficient to cover either of the two lightweight powered wheelchairs identified by Ms Slatyer as suitable for use by Mrs Loadsman. 

    [37] Exhibit R1, Tab 6.

    The stairclimber

25. As previously mentioned in the reasons, the Hercules PS Track stairclimber has a weight-bearing capacity of 160 kilograms, which will carry Mrs Loadsman while seated in a lightweight powered wheelchair. This stairclimber  costs $8,800, is held in stock by Hercules and is presently available.[38] The Tribunal finds that a stairclimber, being a differently identified support to an elevator, is a reasonable and necessary and appropriate alternative support in order for Mrs Loadsman to move between the two levels of her home and should be included in the statement of participant supports in her NDIS plan pursuant to subsection 33(2) of the NDIS Act. This finding is expanded upon further in these reasons.

    [38] Exhibit R1, Tab 11, R8, page 4.

26. The building consultant, Mr Leary, gave clear and uncontroverted evidence that the PS Track stairclimber could be used in Mrs Loadsman’s home following some modifications, including removal of a section of the upstairs wall (which is not load-bearing) to create a large enough landing at the top of the stairwell. These building works will take one week to complete. Conversely, Mr Leary told the Tribunal that installation of an elevator at the Loadsman’s home would be far more disruptive and take considerably longer to complete. The cost of these two separate works was also stark. Installation of an elevator would require building work estimated to cost $47,182.26, whereas those for use of a stairclimber would be approximately $13,650.69. This latter amount includes $770 for a concrete pad at the base of the external stairs at the property, which would allow the stairclimber to be used outdoors. In total, the Hercules PS Track stairclimber and associated building works will cost approximately $22,450.69.

1. The Tribunal also notes the submissions made in relation to the Hercules Domino People stairclimber which has a weight-bearing capacity of 400 kilograms. On the available evidence, the Tribunal is also satisfied that this device is suitable for Mrs Loadsman. Mr Leary gave evidence that this unit would work in the internal staircase of the home, noting that the stairway was generally wide enough, but narrowed at the lower level to be 5 millimetres less than the suggested minimum width for this particular stairclimber. He was of the view that 2.5mm on either side of the Domino People unit while operating would make no difference. Additionally, a representative of Hercules considered that it would be suitable and noted that ‘the suggested minimum width by the manufacturer of 850mm is both assuming there will be a landing to be encountered, as well as allowing the operator some margin or “wiggle” room when climbing or descending’, and that ‘the Domino 400 People is more likely than not to be able to climb your 845mm wide staircase’.[39] For the reasons stated above, this particular stairclimber is not required to be presently funded in Mrs Loadsman’s NDIS plan in circumstances where the PS Track stairclimber will be funded as a result of this decision.  

   [39] Exhibit R3.

   The ‘value for money’ criterion

2. On all of the available evidence, the Tribunal is not satisfied that an elevator ‘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’, as required by subsection 34(1)(c) of the NDIS Act. In LZMX at [158], the Tribunal found that the criterion in subsection 34(1)(c) of the NDIS Act involves a ‘balancing process’ and ‘a sense of proportionality’.

3. As set out above in these reasons, the principal proposed alternative support for Mrs Loadsman is the Hercules PS Track stairclimber to be used together with a lightweight powered wheelchair. Importantly, such a wheelchair can be supplied using Mrs Loadsman’s existing NDIS plan funds. The cost of a Hercules PS Track stairclimber and all requisite modifications to the property is estimated to be $22,450.69. The estimated cost of an elevator and associated building works was not in dispute between the parties at $105,682.26.

4. In relation to the benefits achieved, the evidence establishes that a stairclimber will allow Mrs Loadsman to access both the ground floor and upstairs floor of her home. The stairclimber can also be used outside the home and in the community. Mrs Loadsman would be able to continue interacting with her family and it is reasonable to expect them to operate the stairclimber when this occurs, noting that they have up until recently been walking with her on the stairs. Otherwise, this assistance with a stairclimber can be provided by the people presently supporting Mrs Loadsman with personal care, transfers, meals and all other activities of daily living. Additionally, Mrs Loadsman’s NDIS plan contains significant funding for appropriately trained support workers to operate the stairclimber and assist with other tasks.

5. Furthermore, on the evidence before the Tribunal, a stairclimber is immediately available, whereas an elevator may take a substantial amount of time to be installed and operational, noting the associated development approval process, construction, importation and removal of sections of a double brick wall on two levels of the house required for the elevator. The entire cost of an elevator would need to be paid up front by the NDIA and cannot be recovered for other current or future NDIS participants, whereas another participant could use the stairclimber if it is no longer suitable for Mrs Loadsman, or it could be re-used through the FlexEquip scheme. In contrast, the installation of an elevator is a capital improvement to the property, the value of which would be retained by Mr and Mrs Loadsman and not recoverable or transferrable to anyone else, including other current or prospective NDIS participants.

6. Moreover, the current evidence is that Mrs Loadsman will be able to use a lightweight powered wheelchair inside the house for some time. Even if Mrs Loadsman moved to a heavier wheelchair in the future, and a new stairclimber was required to accommodate that wheelchair, the total cost of both sets of stairclimbers and wheelchairs, spread over multiple years from the NDIA’s budget, would be less than half of the cost of an elevator, in addition to the PS Track stairclimber being able to be supplied to another person if no longer used by Mrs Loadsman. This ‘staged’ approach to the provision of reasonable and necessary supports assists the financial sustainability of the NDIS.

7. In this regard, the Tribunal has considered the objective expressed in subsections 3(3)(b) and 4(17) of the NDIS Act of the need to ensure the financial sustainability of the NDIS. For example, the difference between the total funding required for an elevator for Mrs Loadsman at $105,682.26, and a PS Track stairclimber at $22,450.69, is enough to buy more than three other PS Tracks, with similar home modifications, for other NDIS participants. Additionally, were a PS Track funded now and a Domino People stairclimber purchased at a later point to carry a heavier wheelchair required for Mrs Loadsman, the more than $60,000 difference between their combined cost (at $45,033.69) and that of an elevator would allow the purchase of seven PS Tracks for other NDIS participants. In this regard, the savings from potentially providing two different types of stairclimbers over a period of time instead of installing an elevator would more than fund the current cost of one average NDIS participant’s plan at $50,800.[40] This average NDIS plan is less than the cost of the proposed elevator alone, at $58,500. As at the time of the last NDIA annual report, for the financial year ending 30 June 2020, there were 75,074 NDIS participants with acquired brain injury, cerebral palsy, multiple sclerosis, spinal cord injury, stroke, and ‘other neurological’ impairments.[41] If one-tenth, or 7,507, of these NDIS participants received funding for an elevator it would cost the NDIS almost $440 million or almost $800 million with similar building works to those required at the Loadsman’s home.

   [40] Exhibit R1, Tab 12, Annexure A, page 20.

   [41] ibid., page 96.

8. On balance, the Tribunal is not satisfied that an elevator represents value for money in that the costs ‘are reasonable, relative to both the benefits achieved and the cost of alternative support’, as required by subsection 34(1)(c) of the NDIS Act. In this way, and for the abovementioned reasons, the Tribunal finds that, at less than a quarter of the cost of an elevator, a ‘differently identified support’, being the Hercules PS Track stairclimber, is a reasonable and necessary support for inclusion in the statement of participant supports in Mrs Loadsman’s NDIS plan pursuant to subsection 33(2) of the NDIS Act.

   Care costs

9. The Tribunal does not accept the submission from Mrs Loadsman that ‘care costs’ are required to be added to the costs of a stairclimber when comparing it to the costs of an elevator. The rationale for this proposition is that, because someone is required to operate a stairclimber for Mrs Loadsman, the NDIS would need to provide additional funding for a support worker to perform this task. The Tribunal also expressly acknowledges and has considered Mrs Loadsman’s goal to remain independent in her home. However, as revealed by the evidence, Mrs Loadsman already needs and receives significant support, both from her family and the NDIA, although some of the NDIA-funded supports have not yet been utilised by Mrs Loadsman. On the evidence outlined in these reasons, most relevantly from Professor Rowe, this situation will persist for the foreseeable future and likely intensify. Mrs Loadsman’s husband currently provides substantial assistance with her transfers and personal care, among other requirements, and her NDIS plans have added further supports as the impairment evolves.

10. The informal, unpaid, support Mrs Loadsman receives can be assisted or supplemented by NDIA-funded support workers. To this end, her current NDIS plan provides $67,526.90 for core supports, such as assistance with daily living and with social and community access.[42] On the evidence, the Tribunal finds that Mrs Loadsman will require ongoing support even if an elevator were installed at the home; someone is required to be present in order to assist her with all activities of daily living and there is NDIS funding for this purpose. Unfortunately, based on the evidence before the Tribunal, Mrs Loadsman’s support needs will likely continue to increase, requiring greater levels of care as her MND progresses. A support worker can also assist with operating a stairclimber following receipt of the required training and the NDIA can make this a requirement of providing support to Mrs Loadsman. Importantly, Mr Loadsman also told the Tribunal that he was willing to try a stairclimber for his wife and to receive the requisite training in its use.     

    [42] Exhibit R1, Tab 6.

    The Rules

11. As set out above in these reasons, clause 3.1 of the Rules requires the CEO of the NDIA, or here the Tribunal, to consider a number of relevant matters. Clause 3.1(a) requires consideration of ‘whether there are comparable supports which would achieve the same outcome at a substantially lower cost’. The Tribunal is satisfied that is the case in this proceeding. On the evidence, and as set out above in these reasons, the cost of a stairclimber is substantially lower than that of an elevator and will provide the same outcome for Mrs Loadsman having regard to the nature of her impairment.

12. Clause 3.1(b) and (c) of the Rules respectively require consideration of ‘whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant’, and ‘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’. The Tribunal is not satisfied that the evidence demonstrates that any of the supports under consideration would be relevantly different from each other so far as these rules are concerned in relation to Mrs Loadsman.

13. Clause 3.1(d)(i) of the Rules requires consideration of the comparative cost of purchasing or leasing equipment or modifications. The Tribunal is satisfied that this clause is not applicable in circumstances where there is no option to lease an elevator and, while a stairclimber can be rented, modifications are required for it to be properly tested in the internal stairs of the Loadsman’s home.

14. Clause 3.1(d)(ii) of the Rules requires consideration of ‘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’. Based on the evidence set out in these reasons, the Tribunal finds that this factor weighs against the requested elevator in comparison to the lower cost alternative support of a stairclimber. Having regard to the evidence, MND can progress quickly and Mrs Loadsman’s needs will continue to change, such as going from having the ability to walk to being largely reliant on a wheelchair. The significantly lower cost of the stairclimber compared to the elevator and the impermanency of installing a stairclimber (compared to an elevator) make it a more appropriate support for Mrs Loadsman’s evolving needs as her impairment progresses.

15. Clause 3.1(e) of the Rules is inapplicable in this proceeding as it relates to a comparison of the cost of supports of the same kind provided in the area in which a participant resides.

16. Clause 3.1(f) of the Rules requires consideration of whether the support will increase the participant’s need for other kinds of supports. While currently Mrs Loadsman would require no assistance to operate an elevator, she does require support for a range of tasks, including activities of daily living. Mrs Loadsman has the strong support of her husband and substantial funding in her NDIS plan to engage a support worker. In this way, the Tribunal finds that this consideration is neutral in support of either an elevator or a stairclimber.

    The Home Modification Guideline

17. For completeness, the Tribunal again notes that the Home Modification Guideline sets out modifications that the NDIA will ‘generally not fund’ [emphasis in original]. Relevantly for this proceeding, it specifically states that ‘capital building additions’ such as ‘lifts or inclinators to allow access to multiple levels of a home’ will generally not be funded. It further sets out relevant matters to be considered in relation to whether the prospective funding of items of this kind is reasonable and necessary. The Tribunal is not satisfied that the requisite factors contained in the Home Modification Guideline are present for it to deviate from applying the policy that a lift or elevator will generally not be funded in a participant’s NDIS plan. For example, the consideration of long term costs and benefits of alternative funded supports against the costs and benefits of the modifications to the home for installation of an elevator raises the previously considered factors in relation to value for money, staged funding and other associated costs of an elevator compared to a stairclimber. 

    CONCLUSION

18. The Tribunal acknowledges that Mrs Loadsman’s life has been greatly affected by her diagnosis last year of MND. Her family have also understandably been deeply affected. They want to provide Mrs Loadsman with the best available support to ensure she can live as normal a life as possible. That is reasonable and understandable. As Professor Rowe told the Tribunal, the world changes dramatically with MND. The Tribunal hopes Mrs Loadsman continues to enjoy a fulsome life for many years to come, strongly supported by her husband and family, together with funding from the NDIA for reasonable and necessary supports. However, for the foregoing reasons, Mrs Loadsman’s request for the installation of an elevator at her home is unsuccessful. 

19. In this proceeding, having considered all the available evidence, the Tribunal is not satisfied that an elevator represents value for money, as required by subsection 34(1)(c) of the NDIS Act. Because this one criterion is not met, due to the nature of the ‘reasonable and necessary support’ requirements in subsection 34(1) of the NDIS Act, where all limbs must be satisfied in relation to the funding or provision of each requested support, Mrs Loadsman’s application for the installation of an elevator at her home is unsuccessful.

20. However, as discussed in these reasons, the Tribunal is satisfied that the provision of a Hercules PS Track stairclimber meets the criteria set out in subsection 34(1) of the NDIS Act. The decision under review should therefore be set aside and a decision made in substitution for the NDIA to fund this reasonable and necessary support by way of inclusion in the statement of participant supports in Mrs Loadsman’s NDIS plan under subsection 33(2) of the NDIS Act.

    DECISION

21. The Tribunal sets aside the decision under review pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975 and makes a decision in substitution for the decision so set aside that a Hercules PS Track stairclimber and required modifications at Mrs Loadsman’s home be included in the statement of participant supports in her NDIS plan.

I certify that the preceding 123 (one hundred and twenty-three) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

....................................[sgd]....................................

Associate

Dated: 29 June 2021

Date(s) of hearing: 

13-14 April 2021

Date final submissions received:

Solicitor for Applicant:

25 May 2021

Mr Paul Smith, Legal Aid ACT

Counsel for Respondent: 

Mr Ben Kremer

Solicitor for Respondent:

Ms Lauren Hargrave, Clayton Utz Lawyers