Lougher and National Disability Insurance Agency - [2024] AATA 1057

Lougher and National Disability Insurance Agency [2024] AATA 1057 (15 May 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/2836
Re:LOUGHER
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Deputy President A Younes
Date:15 May 2024
Place:Sydney

The Tribunal sets aside the decision under review pursuant to s 43(1)(c)(ii) of the AAT Act and the matter is remitted to the Agency for reconsideration with a direction that within 28 days of this decision, the Applicant’s statement of participant supports specifies for Specialist Disability Accommodation as follows:
SDA Type: New Build
Design Category: Robust
Building Type: Villa/Duplex/Townhouse, 1 bedroom, 1 SDA eligible resident
Location: NSW – Central Coast
OOA: Yes
Fire Sprinklers: Yes

..................................[SGD]......................................
Deputy President A Younes
CATCHWORDS
National disability insurance scheme — reasonable and necessary supports — Specialist Disability Accommodation (SDA) — Building type — value for money — harm to the participant and risk to others — behaviours of concern — reviewable decision set aside and remitted with direction
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
CASES
Commissioner of Taxation v Rawson Finances Pty Ltd [2023] FCA 617
Jones v Dunkel (1959) 101 CLR 298
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
National Disability Insurance Agency v WRMF (2020) 276 FCR 415
Ramos Hernandez and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 1850
Schellenberg v Tunnel Holdings [2000] HCA 18; (2000) 200 CLR 121
Syddall and National Disability Insurance Agency [2022] AATA 3738
Twentyman v Secretary, Department of Social Services [2019] FCA 586
Woolf and National Disability Insurance Agency [2023] AATA 1312
SECONDARY MATERIALS
NIL
REASONS FOR DECISION
Deputy President A Younes
15 May 2024
INTRODUCTION

The Applicant, Ms Lougher, is a 25-year-old who has been a participant in the National Disability Insurance Scheme (‘NDIS’) since 2016. This application involves review of a decision made by a delegate of the CEO, on 5 April 2022 under s 100(2) of the National Disability Insurance Scheme Act 2013 (Cth) (‘the NDIS Act’), which approved a statement of participant supports (‘SOPS’) forming part of the Applicant’s NDIS plan. Subsequently and on various occasions, that decision was varied pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (‘AAT Act’).
The original decision under review dated 15 December 2021 was implemented in a plan for the period from 15 December 2021 to 15 June 2022 under s 33(2) of the NDIS Act.
Principles & Objectives of the NDIS Act
The NDIS Act operates in pursuit of the objectives set out in s 3 of the NDIS Act. Section 4 establishes general principles guiding actions to be taken under the NDIS Act.
Section 3 of the NDIS Act sets out the objects and principles of the NDIS Act, making particular reference to the purpose of providing reasonable and necessary supports. Subsection 3(1) provides, in part:
The objects of this Act are to:
…
(c)support the independence and social and economic participation of people with disability; and
(d)provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme; and
(e)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f)facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(g)promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; 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; and
…
The objects of the NDIS Act are to be achieved by “adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability.”.[1]
[1] Subsection 3(2)(b) of the NDIS Act.
In giving effect to the objects of the Act, regard is to be had to, among other things, “the need to ensure the financial sustainability” of the Scheme and “the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.”.[2]
[2] Subsection 3(3) of the NDIS Act.
Section 4 of the NDIS Act refers to the General principles guiding action under the NDIS Act, and provides a set of principles. Relevantly, the following principles highlight matters concerning reasonable and necessary supports:
(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.
...
(3)People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(4)People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5)People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
...
(8)People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives.
(9)People with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.
...
(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.
(12)The role of families, carers, and other significant persons in the lives of people with disability is to be acknowledged and respected.
...
(14)People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme.
(15)Innovation, quality, continuous improvement, contemporary best practice, and effectiveness in the provision of supports to people with disability are to be promoted.
…
Subsection 4(17) refers to the need to ensure the financial sustainability of the Scheme. It provides that is “the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to the need to ensure the financial stability of the National Disability Insurance Scheme”.
Section 32 of the NDIS Act provides that the CEO of the Agency is required to facilitate the preparation of a participant's plan. Section 33 of the NDIS Act provides that the plan must include the participant's statement of goals and aspirations and a statement of participant supports prepared with the participant and approved by the CEO. It is noted that the statement of goals and aspirations is a statement by the participant and does not require the approval of the CEO. However, the statement of participant supports must specify the reasonable and necessary supports (if any) that will be funded under the Scheme.[3]
[3] Section 33(2)(b) of the NDIS Act.
A participant’s plan is prepared in accordance with the NDIS Act and regulations made under the NDIS Act, and must include a SOPS. The SOPS must be approved in accordance with the NDIS Act, and any regulations made under the NDIS Act such as the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘the Supports for Participants Rules’).
Section 33(5) of the NDIS Act requires that the CEO (or his or her delegate), in deciding whether to approve the SOPS under s 33(2), have regard to a number of factors, including the participant’s statement of goals and aspirations and relevant assessments conducted in relation to the participant, and be satisfied the supports are ‘reasonable and necessary’.
Section 34(1) of the NDIS Act requires six mandatory criteria to be met before a support is considered to be a ‘reasonable and necessary support’. Section 34(2) provides that the NDIS rules may prescribe methods or criteria to be applied or matters to which the decision maker is to have regard, in deciding whether they are satisfied that the criteria under s 34(1) have been met in respect of a requested support.
Section 34(1) of the NDIS Act provides as follows:
34 Reasonable and necessary supports
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the [NDIS], and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i)as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The phrase “reasonable and necessary supports” is not defined in the NDIS Act, but its meaning can be determined with the assistance of the provisions referred to above. As the Federal Court said in McGarrigle v National Disability Insurance Agency:
Section 13 expressly indicates that a “support” might be a service, or it might be an activity. In my opinion, although s 14 (which deals with funding by the Agency of others to assist the participant rather than the Agency assisting the participant directly) is expressed purposively, its subject matter is also “support” - whether by way of services or activities or any other matter that assists a person with disability in a way that is consistent with the general principles set out in s 4. The word “support” must be given a broad construction in this context, and there is no need for the purposes of this proceeding to seek to give it any comprehensive meaning. Rather, the point to be made is that it is a practical description of the means by which a person with disability is assisted. It is not intended, in my opinion, to encompass funding, especially because what s 14 contemplates is that the Agency will “fund” a support. The Agency cannot “fund” funding.
…
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”. [4]
[4] McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [88] and [91].
Sections 35 and 209 of the NDIS Act provide for the making of Rules in connection with the funding or provision of reasonable and necessary, as well as general supports. As a Legislative Instrument, the Rules bind the Tribunal in making decisions under the Act.
Part 5 of the Rules sets out general criteria for supports and those that will not be funded or provided.
The Rules include:
General criteria for supports
5.1   A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2   The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a)additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b)costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
Supports that will not be funded or provided
5.3   The following supports will not be provided or funded under the NDIS:
(a)a support the provision of which would be contrary to:
(i)a law of the Commonwealth; or
(ii)a law of the State or Territory in which the support would be provided;
(b)a support that consists of income replacement.
Part 3 of the Supports Rules provides for matters to be considered in deciding whether a requested support represents value for money. The relevant provisions of the Rules will be set out later in these reasons.
The Schedule to the Rules sets out the considerations relevant to determining whether supports are most appropriately funded through the Scheme:
7.1The Act limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems, for example as part of a universal services obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
7.2The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system.
7.3For the avoidance of doubt, while this Schedule sets out considerations relevant to whether a support should be considered to be more appropriately provided or funded through another service system, it does not purport to impose any obligations on another service system to fund or provide particular supports.
The Tribunal notes the observations of Mortimer J in McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [43] as follows:
[The Supports for Participants Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement … some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS. [5]
[5] McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [43].
In National Disability Insurance Agency v WRMF,[6] the Court considered the meaning of reasonable and necessary support in the context of the Act, namely:
The supports to be provided to a person who qualifies as a participant are intended to accommodate an individual’s particular impairments and to assist that particular individual to be a participating member of the Australian community …
… there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies – by reference to the context, objects and guiding principles of the Act and the facts of the case – the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person’s impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.
[6] National Disability Insurance Agency v WRMF (2020) 276 FCR 415 at [141] and [151].
In Mulligan v National Disability Insurance Agency,[7] Mortimer J said:
The access criteria in Ch 3 of the Act are an essential component of the NDIS as conceived. They are designed to impose a number of thresholds on access to the NDIS. By s 13, broad and general provision may be made for persons with disabilities – but access to the NDIS, and the supports, funding and autonomy it is intended to deliver, is reserved for a subcategory of persons with disabilities.
…
Although an impairment may, in general terms … be responsible for or related to a disability, the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the “reasonable and necessary supports” to which participants may be entitled, after assessment in accordance with Pt 2 of Ch 3 of the Act.
[7] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at [50] and [52].
SPECIALIST DISABILITY ACCOMMODATION
Section 5 of the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth) (‘SDA Rules’) defines SDA to mean “accommodation for a person who requires specialist housing solutions, including to assist with the delivery of supports that cater for the person’s extreme functional impairment or very high support needs…but does not include supports delivered to the person while the person is living in the accommodation.”

Section 14 of the SDA Rules sets out the criteria for a participant to meet the SDA needs requirement:
(1) A participant meets the SDA needs requirement if, when compared to other supports alone, combined specialist disability accommodation and other supports would:
(a)better assist the participant to pursue the goals, objectives and aspirations set out in the participant’s statement of goals and aspirations; and
(b)be more effective and beneficial, where possible, in:
(i)mitigating or alleviating the impact of the participant’s impairment upon the participant’s functional capacity; and
(ii)preventing the deterioration of the participant’s functional capacity; and
(iii)improving the participant’s functional capacity; and
(iv)maintaining or promoting the participant’s ability to build capacity, including in the medium or long term; and
(v)maintaining or promoting the participant’s opportunities to develop skills; and
(c)if the participant has very high supports needs — be more effective and beneficial, where possible, in:
(i)reducing the participant’s future needs for supports which might be required due to inappropriate accommodation; and
(ii)assisting the participant to pursue goals related to life opportunities and life transitions; and
(d)if the participant has an extreme functional impairment—be more effective in providing the participant with stability and continuity of support; and
(e)represent better value for money.
Subsection 15(1) of the SDA Rules refers to matters that must be determined by CEO for each eligible participant, namely:
(a)the SDA building type that is appropriate to support the eligible participant (see section 16);
(b)the SDA design category that is appropriate to support the eligible participant (see section 17);
(c)the area in which the specialist disability accommodation is to be located (see section 18);
(d)whether the specialist disability accommodation is to be provided as an in‑kind support.
Note: The CEO may determine more than one SDA building type, SDA design category or location in relation to an eligible participant. The SDA building type, SDA design category and location must be specified in the eligible participant’s plan: see section 19.
Material before the Tribunal
Pursuant to its obligations under ss 37 and 38AA of the AAT Act, the Respondent lodged a set of documents (‘the T-Documents’). The T-Documents contained, among other things, a copy of the delegate’s decision record, the Applicant’s request, and reports/Statements from carers and health practitioners. The Respondent and the Applicant lodged submissions and Statements of Facts, Issues, and Contentions (SFIC). The parties also provided post-hearing submissions. The documents before the Tribunal are Exhibits 1-11.
Among other materials, the following documents contained in Exhibit 6 are of particular relevance:
·Report prepared by Ms Georga Crouch, Behaviour Support Practitioner, dated 16 August 2021;[8]
[8] Ex 6, 163-169.
·Behaviour Assessment Report and Comprehensive Behaviour Support Plan prepared by Ms Jessie Hartley, Behaviour Support Practitioner, dated 13 June 2023;[9]
[9] Ex 6, 383-428.
·Behaviour Inter Plan Review Report prepared by Ms Jessie Hartley, Behaviour Support Practitioner, dated 14 June 2023;[10]
[10] Ex 6, 429-436.
·Report by Ms Georga Crouch, Behaviour Support Practitioner, dated 29 September 2021;[11]
[11] Ex 6, 171-178.
·Summary of NDIS Review Report prepared by Ms Jessie Hartley, Behaviour Support Practitioner, dated 9 August 2023;[12]
[12] Ex 6, 437-440.
·Occupational Therapy Functional Capacity Assessment by Ms Emma Cullen, Occupational Therapist, dated 24 April 2023;[13]
[13] Ex 6, 441-467.
·Letter from Dr Penny Caldicot dated 27 December 2023;[14]
·Letter from Dr Andrew Bleasel, Neurologist, dated 18 January 2024;[15]
·Summary of Behavioural Data prepared by Ms Jessie Hartley, Behaviour Support Practitioner, dated 29 January 2024;[16]
·Statement of Ms Jessica Bryant, Carer, dated 31 January 2024;[17]
·Statement of Ms Hermelyn Elliot, Carer, dated 30 January 2024;[18] and
·Statement of Ms Rebekah D’Amico, Carer, dated 31 January 2024.[19]
·Statement of Mr Garry Lougher and Ms Shaunagh Lougher, Parents, dated 28 January 2024;[20]
·Statement of Ms Shantara Bruns, Carer, dated 31 January 2024;[21]
·Statement of Ms Tenille Harford, Carer, dated 31 January 2024;[22]
·Statement of Ms Rachel Deakin, Carer, dated 31 January 2024.[23]
[14] Ex 6, 621-622.
[15] Ex 6, 623-624.
[16] Ex 6, 625-628.
[17] Ex 6, 631.
[18] Ex 6, 629.
[19] Ex 6, 635.
[20] Ex 6, 641-643.
[21] Ex 6, 637.
[22] Ex 6, 639.
[23] Ex 6, 633.
BACKGROUND
The Applicant has Chronic Epilepsy, Autism (Level 3), Severe Intellectual Disability, Severe Global Development delay, Severe Obsessive Compulsive Disorder (OCD), and Receptive and Expressive Language impairment.[24]
[24] Ex 6, 13, 40, 86, 93, etc.
The Applicant is completely non-verbal and she is also incontinent. She regularly throws and smears her faeces.[25] She is fully reliant on her family and carers for support. In the SFIC, it is noted that due to her conditions, the Applicant is highly vulnerable to “mistreatment, interference, abuse and poor care, of which she has experienced in the past”.[26] The Applicant’s request for support relates to her eligibility for Specialist Disability Accommodation (SDA) in the Robust design category. The level of supports required for Supported Independent Living (SIL) was added but is yet to be determined by the Agency. The SIL is therefore not subject to this review.
[25] T1D of the Respondent’s T-Documents.
[26] Ex 2, [4].
The Applicant engages in challenging behaviours including banging, kicking, throwing objects, knocking things over, tearing things, making loud noises, and crying.[27] She can be physically aggressive towards others, can harm herself, and can destroy property.[28] She can “bolt” from support people and refuses to comply with the directions of other people.[29] The Applicant’s challenging behaviour has been ongoing throughout her life, and there is evidence of increase in recent times.[30]
[27] T1D of the Respondent’s T-Documents.
[28] T1D of the Respondent’s T-Documents
[29] T1D of the Respondent’s T-Documents.
[30] T1D of the Respondent’s T-Documents; Summary of Behavioural Data prepared by Ms Jessie Hartley, Behaviour Support Practitioner, dated 29 January 2024.
From birth until April 2021, the Applicant lived with her parents who provided all of her care throughout her childhood and have continued to provide a significant amount of her care during her early adulthood. In around April 2021, the Applicant moved into her own house which was built in the “Robust” SDA design category on recommendations and guidance provided by staff at the NDIS office and health professionals involved in the Applicant’s care.[31] The Applicant’s parents constructed a dwelling consistent with the “Robust” SDA design category.[32] Currently, the Applicant spends four nights a week at the purpose-built SDA property, and at the family home for the remainder of the week.
[31] T1E of the Respondent’s T-Documents.
[32] Occupational Therapy Functional Capacity Assessment by Ms Emma Cullen, Occupational Therapist, dated 27 February 2023.
The Applicant has been a participant in Scheme since 2016. On 7 October 2020, the Applicant had a plan approved under the Scheme with total funded supports of $189,693.63 consisting of core supports and capacity building supports.[33] On 15 December 2021, a further plan was approved under the scheme with total funded supports of $226,412.20 consisting of core supports and capacity building supports. The level of funding for the approved SDA was dependent on obtaining quotes.[34] On 21 July 2021, the Applicant was deemed eligible for SDA Design Category “Improved Liveability”, not “Robust”.[35]
[33] T8 of the Respondent’s T-Documents.
[34] T9 of the Respondent’s T-Documents.
[35] T1J of the Respondent’s T-Documents.
The Applicant sought a review under s 100(2) of the NDIS Act. On 5 April 2022, the delegate of the CEO of the Respondent wrote to the Applicant informing her that the original decision was correct and that the requested SDA funding “did not meet the requirements for supports funded through the NDIS” because the Applicant’s requested support did not meet the requirements of s 34(1)(c) of the NDIS Act, in that it was not considered “value for money”.[36]
[36] T2 of the Respondent’s T-Documents.
Since that time, the following supports have been agreed upon:
Home Modifications Specialist Disability Accommodation (SDA) funding to be determined under the SDA Price Guide by reference to the following matters (Requested Supports):
·SDA Type: New Build;
·Design Category: Robust;
·Location: NSW Central Coast;
·OOA: Yes; and
·Fire Sprinklers: Yes.
ISSUE
By the time of the hearing, the only issue remaining in dispute was Building Type – Building Type: House, 1 Resident.[37] However, during closing oral submissions, the Respondent raised a new issue questioning whether the building type being sought by the Applicant, namely, House 1 Resident, was in fact available. The Respondent relied on NDIS Pricing Arrangement for SDA 2023-2024.[38] The Tribunal requested clarification on the application and operation of that document. Following a short adjournment, the Applicant with the Respondent’s agreement, amended her request to Building Type “Villa/Duplex/Townhouse, 1 bedroom, 1 SDA eligible resident”, a category found in the NDIS Pricing Arrangement for SDA 2023-2024.
[37] Respondent’s updated SFIC, [27].
[38] Ex 6, 657-705.
In those circumstances, the Tribunal is satisfied that the Applicant is now seeking “Villa/Duplex/Townhouse, 1 bedroom, 1 SDA eligible resident”, which is the only issue remaining in dispute.
Relevant reports
Ms Georga Crouch
In her report dated 16 August 2021 and in summary, Ms Georgia Crouch, Behaviour Support Practitioner, noted that the Applicant displays behaviours of concern that “affect her quality of life, put her at risk of exclusion from usual settings and services, and put support staff and occasionally others around her in the community at risk of injury.”[39] The behaviours include:
[39] Ex 6, 163.
·Harm to self – scratching of the skin until it bleeds, hitting herself on the leg or upper arm, and punching herself.
·Physical aggression – throwing objects at others putting them at risk of injury scratching, grabbing, biting, pushing and slapping of support staff, peers or members of the community.
·Property damage – smashing heavy objects on the side of the kitchen bench, such as the vegemite jar, causing a risk of injury to her and others from the broken glass.
·Medication – refusal of medication which may increase incidents of seizure activity and related behaviours.
·Throwing soiled incontinence pads with large, loose, and unpredictable bowel movements – Applicant often becomes agitated when she has a bowel movement and may rip apart and/or throw soiled pads causing significant mess which takes a lot of time and often two support people to clean.
·Unsafe actions whilst travelling in cars – Applicant is known to grab at support staff while they are driving putting herself, support people and members of the community at risk of serious injury or death.
·Leaving supervision – Applicant often acts on impulse and may leave supervision in crowded places putting herself and others at risk. She finds it difficult to manage social situations and requires close supervision and behavioural modelling from caregivers and support workers.
·Refusal – Applicant may refuse to get out of bed or engage in activities at times, thought to be linked to her seizure activity.
·Spitting food and drinks, and licking others.
Ms Crouch noted that those behaviours are present across all settings and have impacted the Applicant’s emotional wellbeing, community perceptions, ability to initiate and maintain social relationships, her family and their ability to implement positive behaviour strategies and therapy recommendations, causing a high turn-over of staffing due to severity of behaviours of concern.[40]
[40] Ex 6, 164.
In her report dated 29 September 2021, Ms Crouch essentially reiterated her earlier observations.[41]
[41] Ex 6, 171.
Ms Jessie Hartley
Ms Hartley, Senior Behaviour Support Practitioner, prepared a Behaviour Assessment Report and Comprehensive Behaviour Support Plan dated 13 June 2023,[42] and a Behaviour Inter Plan Review Report, dated 14 June 2023.[43] She also provided a Summary of NDIS Review Report dated 9 August 2023,[44] and a Summary of Behavioural Data, dated 29 January 2024.[45]
[42] Ex 6, 383-428.
[43] Ex 6, 429-436.
[44] Ex 6, 437-4440.
[45] Ex 6, 625-628.
In essence, Ms Hartley referred to incidents of self-harm, including the Applicant scratching her skin until it bleeds, hitting herself on the leg or upper arm, punching herself, and headbutting surfaces. Ms Hartley recorded the frequency of self-harm to be “200 times in a 10 month period. Can last between 5 mins up to 3 hrs”.[46] Ms Hartley also referred to the Applicant’s physical aggression towards others, such as scratching, grabbing and biting support staff, peers, or members of the community, hard enough to cause bleeding. Ms Hartley recorded the frequency of this behaviour to be “162 times in a 10 month period”.[47]
[46] EX 6, 392.
[47] EX 6, 393.
Ms Hartley discussed other behaviours of concern including acting on impulse, property damage (recorded 584 times in 10 months),[48] refusal to take medication,[49] leaving supervision,[50] engaging in socially inappropriate behaviour,[51] interfering with driver of a moving vehicle.[52]
[48] EX 6, 395.
[49] Ex 6, 396.
[50] Ex 6, 398.
[51] Ex 6, 399.
[52] Ex 6, 400.
In her most recent summary dated 29 January 2024, Ms Hartley reported on the frequency/intensity of property damage, behaviour targeting property, and other behaviours of concern.[53]
[53] Ex 6, 625-628.
Ms Hartley recorded in a graph the “…frequency of low-moderate level behaviours of concern including property damage which are documented on a tally form by staff where they will indicate if [the Applicant] has engaged in a behaviour during the day and whether the behaviour was engaged in less than ten times (counted as once for the purpose of this review) or was engaged in ten or more times (counted as ten times for the purpose of this review). The definition Property damage/behaviours targeting property includes punching/slamming and throwing things. [The Applicant] has been observed to have a high need for order, sameness and task completion. She has been observed to pick up coffee cups or jars that are left on surfaces and slam them into countertops, the sink or dishwasher, slam doors that have been left open and throw items that she feels are in the wrong place. This property damage has been increasing in recent months, is displayed on average 19.5 times per month and has been as frequent as more than 60 times a month. [The Applicant] also regularly rips and throws her incontinence aids; this behaviour is explored separately in my review as it appears to have a different function but could also be interpreted through the lens of behaviour targeting property as considerable cleaning is required and the loss of incontinence aids amounts to financial loss.”[54]
[54] Ex 6, 626-627.
Ms Emma Cullen
Ms Emma Cullen, Occupational Therapist, prepared an Occupational Therapy Functional Capacity Assessment dated 24 April 2023.[55]
[55] Ex 6, 441-467.
Ms Cullen noted that the Applicant has autism spectrum disorder level 3 (ASD3), epilepsy, an intellectual disability, severe obsessive-compulsive disorder, double incontinence, and an expressive and receptive language delay. She indicated that ASD3 is characterised by “severe difficulties in social communication, and extremely inflexible behaviours, with significant difficulties coping with changes to routine. Those with this diagnosis are nonverbal or have an extremely limited vocabulary, engage in restrictive or repetitive behaviours to a degree of interfering with functioning in every day life, and transitioning between activities can cause distress and be of extreme difficulty. [The Applicant] is nonverbal, with all communication made via touch and aggression… [The Applicant] is diagnosed with an intellectual disability …would be classified between severe and profound. [The Applicant] meets the requirements of a delayed development, no unusual physical characteristics, not capable of independent living, requires close supervision, requires assistance with self-care activities and daily life and functioning. [The Applicant] requires 24/7 care and support, and depends on others for all aspects of day-to-day life meeting the requirements for a profound intellectual disability.”[56]
[56] Ex 6, 442.
Ms Cullen referred to the Applicant’s difficulty in communicating her wants, needs, and in getting her message across to others. She noted that the Applicant “can experience challenges in understanding and processing what others are saying to or asking of her. This frustration expressed through violence and property damage… [The Applicant] experiences double incontinence and relies on incontinence aids day and night to manage this. She is unable to communicate her need to go to the toilet, and it is uncertain due to her communication barrier if she is able to register the need for the toilet, or if she has an understanding of what the accurate steps would be, due to her intellectual disability and intellectual age and ability.”[57]
[57] Ex 6, 443.
Relevantly and although referring to SDA, Ms Cullen noted that the Applicant can engage in “aggressive behaviours, elopement and absconding, physical aggression, property destruction, self-injury, threatening behaviour, and OCD tendencies… [The Applicant] is diagnosed with epilepsy to which she can experience up to 6 grand mal seizures per day. The flooring within a Robust SDA home is of commercial grade vinyl to reduce the structure of the home minimising injury to Lucy and preventing damage to the home… The ripping of incontinence aids, and removal of incontinence aids onto the floor. This flooring ensures [the Applicant’s] risk of injury is reduced, faecal matter is able to be cleaned to a high standard reducing health concerns for both [the Applicant] and staff, and the property is maintained without damage.”[58]
[58] Ex 6, 444.
In essence, Ms Cullen indicated that the Applicant prefers routine, structure,[59] and engaging in familiar activities.[60] She further indicated that the Applicant communicates via touch and aggression and that a number of communication strategies have been trialled but have been unsuccessful due to the Applicant’s seizures which frequently interrupt her ability to learn new skills.[61]
[59] Ex 6, 448.
[60] Ex 6, 449.
[61] Ex 6, 451.
Ms Cullen gave evidence in the course of the hearing. Relevant parts of her evidence are discussed below.
Dr Penny Caldicot
In a letter dated 27 December 2023, Dr Caldicot referred to the Applicant’s uncontrolled seizures and bowel motions, throwing and smearing of faeces, aggression and physical violence towards staff and carers, occurring without provocation.[62]
[62] Ex 6, 621-622.
Dr Andrew Bleasel
In a letter dated 18 January 2024, Dr Bleasel, Neurologist, confirmed the Applicant’s intellectual disability and “very challenging behaviour with epilepsy”.[63]
Statements and oral evidence of carers
[63] Ex 6, 623.
Ms Jessica Bryant
Ms Jessica Bryant, Carer, provided a Statement dated 30 January 2024.[64] Among other things, Ms Bryant observed that the Applicant throws items, slams, kicks, and head butts. Ms Bryant noted that she would not be able to care for another person whilst caring for the Applicant.
[64] Ex 6, 631.

Ms Bryant provided a letter of support dated 3 March 2024, in which she expressed the opinion that the Applicant’s behaviour would escalate in the case of another resident because the Applicant cannot deal with change, and that a housemate with disabilities would “most definitely be at risk of injury”.[65] She indicated that she would not be able to safely care for the Applicant and another reside. She included two photographs as evidence of bites by the Applicant when she shampooed her for too long.
[65] Ex 9.
Ms Hermelyn Elliot
In a Statement dated 30 January 2024, Ms Elliot, Carer, discussed the Applicant’s seizures and aggressive behaviours.[66]
[66] Ex 6, 629.
In a letter of support, dated 4 March 2024,[67] Ms Elliott noted that the Applicant poses a risk to any housemate, including being scratched, punched, bitten, or shoved out of the way. She stated that she would resign her position as carer as she would not be able to safely care for the Applicant and another resident. She included two photographs as evidence of injuries caused by the Applicant when she opened the laundry door and for brushing her hair.
[67] Ex 8.
Ms Elliott gave oral evidence essentially confirming her views.
Ms Rebekah D’Amico
In a Statement dated 31 January 2024, Ms D’Amico, Carer, referred to the Applicant’s potential behaviour escalation leading to damage to property, furniture, fixtures, and posing a risk to those present.[68]
[68] Ex 6, 635.
In a letter of support, dated 4 March 2024,[69] Ms D’Amico noted that having another resident live with the Applicant would be detrimental to the Applicant and unsafe for all. She noted that she would resign her role if the Applicant had to share with another resident. She included a photograph as evidence of injuries caused by the Applicant.
[69] Ex 7.
Ms D’Amico gave evidence, among other things, referring to the aggression she faces at the hands of the Applicant, including, grabbing, scratching, and smashing. She expressed the view that all would be in danger in the case of another resident.
Ms Shantara Bruns
In a Statement dated 31 January 2024, Ms Bruns, Carer, focussed her comments on the appropriateness of the SDA, and referred to incidents of the Applicant kicking walls, slamming doors, and throwing items.[70]
[70] Ex 6, 637.
Ms Tenille Harford
In a Statement dated 31 January 2024, Ms Harford, Carer, discussed the Applicant’s potential escalating behaviour and the damage to property that can be caused.[71]
[71] Ex 6, 639.
Ms Rachel Deakin
In a Statement dated 31 January 2024, Ms Deakin, Carer, outlined behaviours of concern, including kicking walls, doors, cupboards, windows, slamming of drawers and door, throwing items, head slamming into walls, rough treatment bathroom fixtures, etc.[72]
[72] Ex 6, 633.
In a letter of support, dated 4 March 2024,[73] Ms Deakin noted that the Applicant does not “seem to like people with disabilities. She gets agitated if they make noises, get too close to her or try to be friendly”. She noted that as she would probably leave her role if the Applicant had to share with another resident.
[73] Ex 10.
In oral evidence, Ms Deakin noted that all would be in danger, including any new resident.
‘Integrity’ of the evidence
In post-hearing closing written submissions, the Respondent raised concerns about the integrity of the evidence, including:
·Witness statements of the support workers being drafted by the Applicant’s mother, Ms Lougher, who is a primary moving party in the proceedings.
·Ms Elliot, a witness, not being proficient in the English language and difficulty in understanding some of the terms used in her statement. As such, she may not have fully understood the content of the document she had signed. There is no formal acknowledgment that the document had been interpreted to Ms Elliot.
·Ms and Mr Lougher were both in the hearing room when the other gave their evidence. The decision to call Mr Lougher was only made after Ms Lougher gave evidence.
·One of the witnesses, Ms D’Amico was in the hearing room during parts of the hearing and the Tribunal was only made aware of this shortly before she gave her evidence the following day.
·The evidence of the support workers should be given limited or no weight as they are employees of Ms and Mr Lougher, raising concerns about their objectivity.
In reply, the Applicant’s representative advised that the written Statements of the Applicant's support workers were typed by the Applicant's parents and that it was apparent from the oral evidence given by the support workers that their evidence was dictated to them over the telephone and a written version of each Statement was provided to each support worker for their review and comment. The Representative contended that the suggestion that the statements were "drafted" by Ms Lougher is a “misstatement of the evidence” and that the approach taken by the Applicant's parents is “entirely consistent with the practice of parties who have the assistance of solicitors in preparing witness statements”. The Tribunal notes the Respondent’s concerns but is persuaded by the explanations provided by the Applicant’s representative, and that it is entirely plausible that the support workers’ evidence were dictated and a written version was provided for their review.
In relation to the Respondent’s concerns about Ms Elliot, although it became apparent in the course of the hearing that Ms Elliot speaks English as a second language, she gave evidence that prior to signing the Statement, she received assistance from her husband who explained the contents of the drafted document. As such, the Tribunal is of the view that it would be unreasonable to conclude that Ms Elliot "may not have understood the content of the documents she had signed", which is inconsistent with her evidence that she understood the Statement she had signed. Moreover and as correctly pointed out in the Applicant’s closing submissions in reply, Ms Elliot was able to answer a number of questions from the Respondent such as a question about the meaning of SDA.
Regarding the concern about Ms and Mr Lougher being in the hearing room, in the Applicant’s closing submissions in reply, it was explained that the decision to call Mr Lougher was only made after Ms Lougher gave evidence, and that the Applicant had always anticipated that Mr Lougher would give evidence. It was noted that the Applicant was mindful to avoid repetition in the evidence and that not calling him would have likely resulted in a submission from the Respondent that an adverse inference is to be drawn. The Tribunal observes that Mr and Ms Lougher gave evidence of their own personal experiences in dealing with the Applicant and the Tribunal did not perceive collusion. Moreover, Mr Lougher’s evidence was mostly focussed on his businesses, about which he was questioned extensively by the Respondent.
As to the issue raised about Ms D’Amico, in the closing submissions in reply, the Applicant’s representative noted that given the Applicant's particular circumstances, “it was difficult to avoid a situation where the Applicant’s parents and a carer were not in the room for all or part of the hearing. The Applicant is non-verbal and not able to instruct her representatives. When the Applicant was present in the hearing room, she needed to be accompanied by a carer because of the nature of her disabilities. The alternative was to have the Applicant not present or unaccompanied.” The Tribunal is persuaded by those explanations. Relevantly, Ms D’Amico gave evidence consistent with her written Statement, provided before the hearing.
The Respondent contended that the evidence of the Applicant's support workers may be given little weight on the basis of their employment by Mr and Ms Lougher. In post-hearing submissions in reply, the Applicant’s representative noted that this issue was not put to any of the support workers or the Applicant's parents who were cross-examined by the Respondent, contrary to the requirements of procedural fairness.[74] The Tribunal is of the view that having an employer-employee relationship does not mean that the integrity of the support workers’ evidence is questionable. Moreover, the Tribunal finds merit in the Applicant’s submissions that “…Not only have the care workers and the Applicant's parents been denied the opportunity to reject this assertion, the submission amounts to a slight against the professionalism of the care workers and the honesty and integrity of the care workers and the Applicant's parents.” The Tribunal is satisfied on the evidence that all the support workers came across as being professionals who expressed their opinions without fear or favour.
[74] Twentyman v Secretary, Department of Social Services [2019] FCA 586 at [20]-[21].
The Respondent has also made submissions that the Applicant's care workers lack experience and qualifications and therefore their evidence should be accorded lesser weight than may otherwise be the case. In response, the Applicant’s representative pointed out that care workers frequently have no formal qualifications although they need to meet NDIS quality and safeguarding requirements (which the Applicant's carers do). The Tribunal notes that Ms Lougher gave extensive evidence and provided explanations, including the family facing difficulties in finding suitable carers, and that the focus was not so much on qualifications but personal attributes so that the carer can "put up" with the Applicant's behaviours such a faecal throwing and smearing.
The Tribunal is of the view that whilst formal qualifications can be relevant in selecting an appropriate carer, what is more important is the person’s ability to provide a caring and a safe environment, with compassion and empathy. To suggest that formal qualifications are essential, does not take into account that to be suitable as a carer, other attributes are fundamental. A person can receive years of formal education and multiple qualifications but that does not mean they have the relevant qualities to perform with compassion and dignity. Moreover, the evidence indicates most of the Applicant's carers have worked with the Applicant for several years and know her challenges very well. They are carefully selected by the family and have undergone around 100 hours of buddy shift training, and are trained in CPR and epilepsy management. In any case, one does not need subject-matter expertise or qualifications to give direct evidence of observable behaviour.
In the written closing submissions, the Respondent raised concerns about the Applicant’s decision not to call Ms J Hartley (Senior Behaviour Support Practitioner) to give evidence. The Respondent contended that Ms Hartley has worked with the Applicant and the support workers for a number of years, and she would have been well placed in providing to the Tribunal insight into the Applicant’s behaviour and any particular issues to her residing with another person. The Respondent noted that during the hearing in the afternoon of 5 March 2024, Counsel for the Applicant indicated that Ms Hartley would be giving oral evidence on the morning of 6 March 2024. However, at the commencement of second day of the hearing, Counsel informed the Tribunal that Ms Hartley would not be called to give oral evidence. The Respondent contended that a Jones v Dunkel [75] inference ought to be drawn by the failure to call Ms Hartley to give oral evidence.
[75] Jones v Dunkel (1959) 101 CLR 298 at 321-322.
The Respondent referred to the AAT decision in Ramos Hernandez and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship), namely:[76]
The Applicant’s non-provision of oral evidence does, to some extent, deny this Tribunal a capacity to gauge, apprehend and form any conclusion about the veracity of how the statements appearing in his statutory declarations came to be made. The refusal to provide oral evidence denies the Tribunal a different dimension to the Applicant’s evidence. The failure to produce a witness carries with it a certain inference referred to by the High Court in Jones v Dunkel and Anor (1959) 101 CLR 298 (‘Jones v Dunkel’):
‘The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party.’
I apply the inferential rule in Jones v Dunkel towards a conclusion that the Applicant’s evidence, for the purposes of determining this Application, was either not thought to have been of assistance or, were he to be called, there was an apprehension he would have added little to his written statement. I again note the Respondent was denied the opportunity of testing his evidence in cross-examination. Accordingly, I temper the weight allocable to the Applicant’s written evidence before me.
[76] Ramos Hernandez and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 1850 at [78] – [79].
The Respondent also relied on Commissioner of Taxation v Rawson Finances Pty Ltd [77] for a more recent example of the application of the rule in Jones v Dunkel:
The rule in Jones v Dunkel is also based on common sense, namely, that an unexplained failure by a party to call a witness may, in appropriate circumstances, give rise to an inference that the evidence of that witness would not have assisted that party's case: Jones v Dunkel at 308 (Kitto J), 312 (Menzies J) and 320-321 (Windeyer J). While the rule may make certain evidence or the inferences which may be drawn from the evidence more probable, it cannot fill gaps in the evidence, or convert conjecture and suspicion into inference: Jones v Dunkel; Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 at [53] (Gleeson CJ and McHugh J).
[77] Commissioner of Taxation v Rawson Finances Pty Ltd [2023] FCA 617 at [83].
The Respondent noted that the documents prepared by Ms Hartley do not address the question as to whether it would be reasonable for the Applicant to live with another resident, and that in the most recent document prepared by Ms Hartley dated 29 January 2024, she indicated that “…This report’s purpose is to report on the frequency/intensity of Property damage/Behaviour Targeting Property, but all behaviours of concern are included.”[78] The Respondent contended that it is not known whether Ms Hartley was advised of the Applicant’s current position and as such it would be inappropriate to infer from Ms Hartley’s reports that she holds a particular opinion which aligns with what the Participant seeks.
[78] Ex6, 625.
In reply to the Respondent’s contentions above, the Applicant’s representative indicated that although the rule in Jones v Dunkel [79] has some relevance to proceedings before this Tribunal, the Respondent has not identified the precise nature of the adverse inference it submits should be drawn and has “ignored certain key matters about when the rule can be invoked.” Counsel for the Applicant provided a number of explanations including the interest of time, the availability of Ms Cullen between 2:00 – 4:00 pm on the final day of the hearing, Ms Hartley’s provision of extensive written evidence to the Tribunal, and in circumstances where the Respondent did not wish to examine her.
[79] Jones v Dunkel (1959) 101 CLR 298 at 321-322.
As to the Respondent’s submissions that the evidence of Ms Hartley “donot address the question as to whether it would be reasonable for the Participant to live with another resident", the Applicant’s representative questioned the accuracy of the submissions and noted that an adverse inference pursuant to the rule in Jones v Dunkel can only be drawn where a party is required to explain or contradict something or unless evidence is given of facts "requiring an answer."[80]The Applicant’s representative contended that there was no evidence, including from Ms Cullen, that it would be reasonable for the Applicant to live with another resident such that Ms Hartley could be expected to contradict. The Tribunal accepts that this is a correct analysis of the evidence and the rule in Jones v Dunkel.[81]
[80] Jones v Dunkel (1959) 101 CLR 298 at 321-322 (Windeyer J); Schellenberg v Tunnel Holdings [2000] HCA 18; (2000) 200 CLR 121 at [51] (Gleeson CJ and McHugh J).
[81] Jones v Dunkel (1959) 101 CLR 298 at 321-322.
A significant point that has been made by the Applicant’s written closing submissions is that “at all relevant times prior to one week before the final hearing, the primary reason stated by the Respondent for its Decision was that the Applicant did not qualify for SDA in the Robust design category, as distinct from the question of whether single or dual occupancy was appropriate SDA design type. This was the only contention that the Respondent provided particulars in relation to, and the only contention written submissions were made in relation to in December 2023. In December 2023 the Applicant informed the Respondent that it assumed, based on its written submissions, the issue of sole or dual occupancy was not in issue. That the Respondent was going to base the entirety of its case on the issue of sole or dual occupancy was not clarified until one week prior to the hearing.”[82] The Tribunal is of the view that those submissions accurately reflect the history of this matter.
[82] Applicant’s Closing Submissions in Reply, 20 March 2024, [13].
The Applicant’s representative further submitted that given that the Tribunal needs to be positively satisfied of particular matters, the “discretion to draw an adverse inference against a party should only be exercised when the party calling for the inference to be drawn has pleaded and/or particularised their case in such a way that the missing witness would clearly have been expected to be called to address an issue, and be given sufficient time to do so: Sudesh Sharma v Insurance Australia Limited t/as NRMA Insurance [2017] NSWCA 55; VTBL and Commissioner of Taxation (Taxation) [2023] AATA 168 (13 February 2023) at [262]-[270].”[83]The Tribunal is persuaded by the Applicant’s submissions that raising a contention does not necessarily mean that the Tribunal cannot positively be satisfied on the evidence before it that a single occupancy SDA was a reasonable and necessary support for the safety of the Applicant, her carers and any other co-resident.
[83] Applicant’s Closing Submissions in Reply, 20 March 2024, [14].
The Applicant’s representative raised a further concern about the Respondent’s contentions concerning Ms Hartley who could favour the Applicant, on the basis that she has a longstanding history of working with the Applicant in a professional capacity. The Applicant reiterated that the Respondent did not wish to examine Ms Hartley, which the Tribunal accepts as being correct.
On the evidence, the Tribunal is satisfied that it is unreasonable for the Tribunal to draw adverse conclusions concerning Ms Hartley's evidence relating to the behaviour of the Applicant which was essentially corroborated by other material before the Tribunal.
The Tribunal has carefully considered the Respondent’s contentions in relation to the integrity of the evidence, but overall and for the above reasons, the Tribunal is not satisfied that weight should be moderated or limited in relation to the evidence at issue. The Tribunal appreciates the Respondent’s contentions but it is also important to keep in mind that the Tribunal’s task is to consider the evidence cumulatively and to apportion weight which the Tribunal considers to be appropriate. Some of the issues raised by the Respondent could potentially lead to an adverse outcome in an adversarial system, unlike that of the Tribunal, which is more of an inquisitorial system of justice.
Family Impact Statements

The Applicant’s mother, Ms S Lougher, provided a number of Statements outlining the Applicant’s circumstances and the impact those have had on the family. In a Statement dated 17 September 2018,[84] Ms Lougher described the array of feelings she felt on discovering that the Applicant had challenges, including feeling disbelief, anger and grief. Ms Lougher noted that as aging parents, she and Mr Lougher cannot continue the level of support the Applicant has needed, and that they only want what is best for the Applicant.
[84] Ex 6, 348-349.
In a subsequent Statement dated 1 July 2022,[85] Ms Lougher provided an “insight into the day-to-day management and care” of the Applicant, including around the clock care, which meant that Ms Lougher could not seek employment, go on extended family holidays, or make future plans – she stated “…My life totally revolves around [the Applicant’s] care and needs…I have current health problems…[the Applicant] is loved by all the family. We want to be involved in managing her care in the future, so we know that she is cared for in the best possible way for her to enjoy quality of life…”. Mr Lougher expressed similar sentiments. He noted that there has been a significant financial impact on the family.
[85] Ex 6, 347.
Both Ms and Mr Lougher gave evidence in the course of the hearing, referring to their journey including the significant hardships suffered by the family. They expressed their unconditional love for the Applicant, who also attended parts of the hearing.
The Tribunal formed the view that the family has faced serious challenges over the years due to the Applicant’s challenges which warranted their total commitment and care. Their wish is what is best for the Applicant. They gave multiple examples of 24/7 care provided to the Applicant. The Applicant’s seizures and incontinence mean that the Applicant requires exclusive and constant care. They gave evidence that in some circumstances, the Applicant becomes aggressive towards others and can be prone to self-harm. This is supported by other material before the Tribunal including the evidence of the carers who gave evidence.
The Respondent in written closing submissions contended that although the Applicant relies on medical evidence of her medical condition and disabilities in a “general sense, there is extremely limited medical evidence directly addressing the question as to whether it is reasonable and necessary for the Participant to live alone. There is extremely limited evidence aside from that advanced by the Participant’s parents, or those closely associated with them which supports the proposition that it would be inappropriate for the Participant to reside with another person. The evidence relied upon by the Participant provides no more than a high level overview of the Participant’s disabilities.”[86] The Respondent noted that the only expert in the case to comment directly on the issue as to whether the Applicant could live with someone else was Ms Cullen, who expressed the view that the Applicant could reside with another SDA eligible resident provided she had sufficient supports and the other resident was carefully selected .
[86] Respondent’s Closing submissions, [5.4]-[5.5].
The Respondent contended that there is an absence of a qualified opinion contradicting Ms Cullen, and that there had been no attempt to explore the theory that the Applicant could not tolerate another person in the same house. The Tribunal somewhat agrees that Ms Cullen is an expert, but this does not mean that the evidence of the Applicant's parents and carers, who have direct exposure and experience of the Applicant's behaviours, is of limited probative value. Moreover, it is noteworthy that Ms Cullen’s evidence was initially focussed on what was considered to be the issue – SDA. In her report, Ms Cullen's focus was on the design category (i.e. whether 'Robust' SDA was appropriate) but not the issue of sole or dual occupancy, because that was not considered to be the live issue. The basis of her views, expressed in her oral evidence, that the Applicant could share accommodation was and as contended by the Applicant “tenuous and she admitted that the ultimate question, of whether behavioural supports could result in behavioural improvements such that the Applicant could safely share accommodation was both speculative and outside her area of expertise. The evidence of Ms Cullen is of no or limited utility to the Tribunal. She spent two hours at the Applicant's house and very limited time with the Applicant herself (the Applicant removed herself from Ms Cullen's presence during her time at the Applicant's house to eat her meal elsewhere).”[87]
[87] Applicant’s closing submissions, [19].
The Tribunal also finds difficult to reconcile Ms Cullen’s position that the Applicant could share accommodation when she also accepted that the Applicant's violent behaviour places the Applicant and any other resident of the house at risk. She also accepted that the Applicant's behaviour of faecal smearing and ripping her incontinence aids could lead to distress to another resident as well as health concerns. Ms Cullen acknowledged that she had not been provided with any evidence to suggest that behavioural interventions would work with the Applicant, or the extent to which the Applicant would be receptive to behavioural interventions.
The Respondent has contended that the Applicant's parents have a "relatively casual approach to knowing who is attending the Applicant's home”, which is "fundamentally incompatible with opposition to a properly vetted and resident residing with the Participant”.[88] The Tribunal is persuaded by the Applicant’s submission that this a selective reading of the evidence which does not take into account the evidence that the Applicant's parents are in close contact with the care workers on a regular basis. The Tribunal is satisfied that the oral evidence of the parents did not show or suggest a casual approach in the manner suggested.
[88] Respondent’s closing submissions, [5.12].
The Respondent noted that when the Applicant attended the Tribunal on the first day of the hearing, she was "relatively calm, and certainly not aggressive."[89] That statement is not entirely correct; during the hearing, and for an unknown reason, the Applicant threw water at her father. Although the Tribunal is reluctant to rely on its own, or others’ observations of the Applicant's demeanour to reach any conclusions, it was evident that there were issues.
[89] Respondent’s closing submission, [5.13].
The Respondent observed that the Applicant attended respite with a peer and carers in 2020 and 2021, and that in 2021 she met potential housemates. In response, the Applicant contended that this is “highly selective, ignores the evidence that the Applicant's attendance at respite was not successful, and also ignores more recent evidence about the escalation in the Applicant's behaviours of concern and the increase in her seizures.”[90] There is merit in the Applicant’s contentions.
[90] Applicant’s closing submission, [24].
The Tribunal is satisfied on the cumulative evidence that the Applicant is capable of serious self-harm and in causing significant harm to others, as well as damage to property. The evidence indicates that the Applicant is capable of physical aggression which can be unpredictable. The Tribunal gives significant weight to the evidence of the carers and the parents, both written and oral, confirming the Applicant’s challenging behaviours and the injuries caused to those individuals at the hands of the Applicant. The Tribunal is satisfied on the evidence that there is an unacceptable risk of harm to others and as such it would be unreasonable to find that the Applicant can safely share a residence. It has been suggested that if the risk is managed safely and reasonably, sharing would be acceptable. This is speculative and inconsistent with the cumulative evidence; there is direct, cogent and probative evidence of the Applicant's behaviours of concern, which can escalate unpredictably, with a likelihood of self-harm and injury to others. The Tribunal is satisfied that it is too high risk to try shared residence. There are certain risks with potential considerable adverse outcome to mean that one simply does not try and hope for the best.
The Tribunal is satisfied that the cumulative evidence demonstrates that a dual occupancy SDA would pose a risk to the Applicant and any housemate or her carers. Under rule 5.1(a) of the Supports Rules, a support will not be funded under the NDIS if it is likely to cause harm to the participant or pose a risk to others. The Applicant's behaviour poses a risk to the safety of the Applicant and any potential housemate sharing the SDA with the Applicant.
Whether the Requested Support meets the criteria under s 34(1) of the NDIS Act
In order to approve a reasonable and necessary support, the CEO must be satisfied of each of the matters set out in s 34.
The Respondent contended that the requested SDA does not meet the requirements s 34(1) of the NDIS Act.
Section 34(1)(a) – goals, objectives, and aspirations
The first mandatory criterion under s 34(1)(a) of the NDIS Act is that the funding of the supports will assist the participant to pursue the goals, objectives and aspirations included in the participant’s NDIS plan. The short-term goals in the applicant’s plan are that he would like to live at home as independently as possible, for as long as possible, and to see his children. As for medium and long term-goals, he would like support to maintain mental and physical health to enable him to participate in more activities and for someone to assist as he is not able to live by himself.[91]
[91] NDIS Plan dated 6 April 2021.
Section 34(1) does not require the Tribunal to be satisfied that the supports under consideration will result in a participant achieving their goals and aspirations. They are only required to assist the participant to achieve their goals, objectives, and aspirations.
The Tribunal is mindful that the legislative scheme prescribed under the NDIS Act requires the CEO, and the Tribunal on review, to ‘have regard to the participant’s statement of goals and aspirations’ in deciding whether to approve a SOPS.[92]
[92] NDIS Act, s 33(5)(a).
In the current NDIS Plan, the Applicant expressed:
I live with Mum & Dad and my brothers but have been spending more time away from family. I am getting used to being away from my family and I am looking forward to moving out of the family home to my own place. This is being built right now. I am meeting other girls like me now with a view to them being a housemate in the future. That will mean I will have some more carers around me.
…
My Dad has been working with the SDA & SILC to develop a plan for me to be able to live independently with another young lady in a home that he is hoping to get the approval from NDIS to build so that I can have as normal life as possible.[93]
…
I like to be with my family regularly. I also like to meet new people and I look forward to my new house and being surrounded by people with old fashioned values and they will be part of my life.
[93] NDIS Plan (06.09.2023 – 05.09.2024), page 2 (‘Current Plan’).
In the Current Plan, the Applicant expressed the following goals:
(1) I need to be able to get out each day and be engaged in the community activities to build my independence and activities I enjoy like swimming.
(2) To keep having weekends away from my family and enjoy independence myself with my carers, go out a bit in the evenings and have friends around.
(3) To live in a home of my own and to build my skills through a gradual and safe transition.[94]
[94] Goals (1) and (2) are described as ‘Short-term’ goals, and goal (3) as a ‘Medium or long-term’ goal.
As pointed out by the Applicant, her goals were prepared when she was a teenager and have not been updated since that time. She is now 25 years old and it is fair to say that although she has expressed a desire to be around people, her goals have been revised and provided to the Respondent together for funding under the SIL program which has not yet been determined.
The Tribunal is persuaded by the Applicant’s representative’s closing submissions, that the Applicant’s pursuit of her goals can be achieved in other ways, as "individualised community participation", including going for walks, and being in the vicinity of other people. The Tribunal is satisfied that those activities will assist in the development of her independence and social skills, and that if her behaviour changes in the future, the question of sharing accommodation should be revisited.
On the evidence, the Tribunal is satisfied that the Applicant is not in a position to have a housemate; given the risk, it is difficult to see how a housemate would assist the Applicant in achieving her goals without putting the housemate (and the Applicant) at risk of serious injury. Moreover, on the evidence, the Tribunal does not consider that shared accommodation is necessary for the Applicant to work towards her goals. The Applicant made a noteworthy point – “not everyone socialises in the same way, and not everyone socialises like a person who is able-bodied.”[95] The Tribunal is satisfied that the cumulative evidence supports a finding that the social contact the Applicant currently receives through her family and her carers is sufficient and is in line with her current goals. On the evidence, the Tribunal is not satisfied that shared accommodation would achieve increased social participation.
[95] Applicant’s Closing submissions, [5].
In those circumstances, the Tribunal is satisfied that s 34(1)(a) is met.
Section 34(1)(b) – assist to undertake activities to facilitate social and economic participation
The second mandatory criterion under s 34(1)(b) requires the Tribunal to be satisfied that the requested support will assist the applicant to undertake activities to facilitate his/her social and economic participation.
The Respondent contended that there is no risk to the Applicant’s social and economic participation in case of shared accommodation, and that shared accommodation would in fact benefit the Applicant in establishing friendships, widening her social circle and increasing her social interaction. The Respondent further contended that it is “a reasonable expectation that for someone of the Applicant’s age and maturity, and cognitive abilities, shared accommodation provides her with the opportunity to engage in social activities and assist her to create and nurture personal relationships to a degree that would not be possible in single accommodation. It is considered that the Applicant could benefit from living with one other person to maintain social interaction with people of similar ages due to her age and the impairments associated with her disability”.[96]
[96] Ex 5, [67]-[68].
In response, the Applicant submitted, and the Tribunal accepts that there would be little or no benefit in shared accommodation where the Applicant’s behaviour includes punching, slamming, throwing objects, and damaging property. As mentioned by the Applicant, the most recent data shows that such behaviour is occurring on average 19.5 times a month and has been as frequent as over 60 times a month,[97] requiring considerable cleaning. The Applicant’s carers have provided detailed evidence about her social limitations.
[97] Ex 6, 626.
The Tribunal notes that there is evidence that the Applicant has a high need for order and sameness.[98] As such having another person share with her would mean that her unique preferences would have to be accommodated otherwise there would be a real risk to her safety and that of others. There is also a real risk that the Applicant’s behaviour would escalate in case she has a housemate.
[98] Ex 6, 626.
The Tribunal is satisfied that the cumulative evidence before the Tribunal does not support a finding that shared accommodation would benefit the Applicant in establishing friendships, widening her social circle and increasing her social interaction, or that shared accommodation would achieve increased social participation.
Looking at the evidence as a whole, the Tribunal is satisfied that the requested level of support of single accommodation will assist the Applicant to undertake activities to facilitate social and economic participation. The Tribunal is therefore satisfied that s 34(1)(b) is met.
Section 34(1)(c) – value for money
The third mandatory criterion under s 34(1)(c) requires the Tribunal to be satisfied that the requested 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 (comparable) supports.
In considering s 34(1)(c), the Tribunal is required to have regard to the matters set out in the Support Rules at rule 3.1(a)-(f). Support Rule 3.1(a) requires the decision maker to consider “whether there are comparable supports, which would achieve the same outcome at a substantially lower cost”. SDA Rule 16(e), that will be discussed later replicates the requirements of s 34(c).
Rule 3.1(a) of the Support Rules: whether there are comparable supports which would achieve the same outcome at a substantially lower cost.
The Respondent referred to Woolf and National Disability Insurance Agency[99] noting that considering the ‘outcome’ of comparable supports, imports a balancing exercise, weighing benefits against costs. Benefits may be ‘both identifiable subjective advantages, as well as objective ones which may be quantifiable’.[100]
[99] Woolf and National Disability Insurance Agency [2023] AATA 1312 at [14].
[100] Respondent’s updated SFIC.
The Respondent noted that the Applicant may consider that the benefit of her living alone is that she would be able to have the greatest level of control over her environment. The Respondent however contended that there is insufficient evidence to establish a disability that completely precludes the Applicant from living in shared accommodation. Among other matters, the Respondent referred to Ms Hartley’s recommendation, that the Applicant receive 42 hours Specialist Behavioural Intervention and 26 hours Behaviour Management Plan including Training in Behaviour Support per year ‘to reduce the risk significant behavioural escalation’.[101] The Respondent contended that if the Applicant receives her current level of support together with the additional 42 hours Specialist Behavioural Intervention and 26 hours Behaviour Management Plan, that the Applicant would be able to successfully share accommodation with a carefully selected co-resident, which would achieve the same outcome for the Applicant, namely mitigating behaviours of concern, at a substantially lower cost. The Respondent contended that the benefit of increased social participation can also be better achieved in a shared accommodation arrangement at a substantially lower cost than single accommodation.
[101] Respondent’s updated SFIC.
The Applicant contended and the Tribunal accepts on the evidence that the Applicant would benefit from living alone, which would enable her home environment to be managed in a manner to reduce incidences of difficult behaviours, and additional support for behavioural intervention would not have the same beneficial effect. The Tribunal notes and accepts that behavioral intervention has been attempted previously which reduced high level incidents but not low-moderate level behaviours.[102]
[102] Ex 6, 627.
The Tribunal is satisfied that rule 3.1(a) is met.
Rule 3.1(b) of the Support Rules: whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant.
The Respondent contended that living with a co-resident would facilitate participation and improve life stage outcomes, as investing in supports to assist the Applicant to adjust to living with a co-resident would build life skills, which are likely to be of long-term benefit, consistent with the Applicant’s goals and aspirations of independence and increased social skills. The Respondent further contended that there is insufficient evidence to demonstrate that single accommodation would substantially improve the life stage outcomes for, and be of long-term benefit to the Applicant.

The Applicant contended and the Tribunal accepts on the evidence that currently the Applicant has limited or no ability to socialise with people other than her carers and family, and that having her a share accommodation is detrimental.
The Tribunal is satisfied that rule 3.1(b) is met.
Rule 3.1(c) of the Support Rules: 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).
The Respondent contended that living in single accommodation would limit the Applicant’s access to activities and is likely to result in an escalation of behaviours of concern and the reliance on restrictive practices, which pose a risk to safety, human rights, and increasing long term reliance on person-to-person support. Moreover, it was argued that living alone with 24/7 care is considered to create a reliance on paid supports rather than providing an opportunity to develop relationships with peers.
In essence, the Respondent contended that there is insufficient evidence to demonstrate that single accommodation will reduce the cost of the funding of supports for the participant in the long term.
It is noteworthy that the frequency of the Applicant’s epileptic seizures has increased with age and are treatment resistant.[103] Subsequent to the seizures, the Applicant requires full-time focused care to support her during recovery. During the seizures, staff monitor her fluid intake and blood glucose level,[104] which means that whilst caring for the Applicant, staff’s attention would need to be undivided. The Applicant contended and the Tribunal accepts that the cumulative evidence indicates that the Applicant’s challenging behaviours are likely to increase in case of shared accommodation.
[103] Ex 6, 621.
[104] Ex 6, 629, 631, 633, 637, and 639.
The Tribunal is satisfied that rule 3.1(c) is met.
Rule 3.1(d) of the Support Rules: for supports that involve the provision of equipment or modifications ...
The parties agree and the Tribunal finds that this is not a relevant consideration in this matter.
Rule 3.1(e) of the Support Rules: 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.
The parties agree and the Tribunal finds that this is not a relevant consideration in this matter. For any kind of building type, the funding will be in accordance with the NDIS Pricing Arrangements for Specialist Disability Accommodation.
Rule 3.1(f) of the Support Rules: 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)
The Respondent contended that 2 Bedroom 2 Resident Building Type would lead to increased engagement, more skill development and greater capacity for self-regulation. As such, the need for 1:1 support may reduce in the future.
The Respondent argued, and the Tribunal accepts that that there is insufficient evidence to demonstrate that single accommodation would reduce the cost of the funding of supports for the participant in the long term.
The Tribunal is satisfied that rule 3.1(f) is met.
The Tribunal is satisfied that the evidence demonstrates that the Applicant currently benefits from living alone. As mentioned earlier, additional support for behavioural intervention has been tried and it has been successful at reducing high level behavioural incidents but not low-moderate level behaviours which are still common,[105] raising concerns about the Applicant’s capacity to live with another resident. Although high level behavioural incidents have decreased with these interventions, they still occur frequently with serious consequences. Low to moderate level behaviours are still common and frequent. These behaviours have the potential to lead to significant incidents unless responded to in a particular manner.[106] For example, the Applicant engages with high frequency in fecal smearing, which continues to occur several times. The Applicant tends to have loose bowel movements, and the smearing would no doubt be distressing for any co-resident and could also pose hygiene concerns.
[105] Ex 6, 627.
[106] Ex 6, 627.
There is substantial evidence before the Tribunal referring to the challenges faced by the Applicant which would need to be addressed prior to consideration of shared accommodation. In her report, Ms Wise, Occupational Therapist, indicated that before the Applicant could share a home with other people, certain issues would need to be addressed including her OCD, which remains a live issue.[107] Ms Cullen described the OCD symptoms as “requiring doors to be closed, pushing in chairs and seeking “neatness” (this was evident throughout the assessment, when someone would leave their chair momentarily Lucy would push the chair back in under the table), straightening and ordering most items within the household, closing drawers, needing items to be in specific places and for this space to be continual, with each item to have a dedicated “home”.”[108]
[107] Ex 6, 37-84.
[108] Ex 6, 442-443.
Dr Penny Caldicott noted that when the Applicant is around people other than her carers and family members, she is often a risk to them due to her violent behaviours, fecal smearing, and throwing.[109] The Applicant has thrown objects at members of the public when she is out in the community, including plates, tea and water and other people.[110] Ms Elliot, indicated that the Applicant is best cared for on her own because her need for sameness.[111] Ms D’amico, indicated that the Applicant’s behaviours can escalate quickly and are not always able to be managed in a timely and safe way.[112] Ms Deakin, noted that although she is trained to practise intervention to try to manage the problematic behaviours, but they can escalate quickly. These behaviours include kicking walls, doors, cupboards and windows, slamming drawers and doors, throwing items, head slamming into walls, punching and grabbing fixtures.[113] Ms Harford, noted that the Applicant’s behaviours of kicking walls, slamming doors and throwing items pose a threat to individuals in her proximity.[114] Ms Bryant noted that it takes some time for a carer to get to know the Applicant and that having the house set up the right way is “essential” and requires kitchen items to be put back in a particular place.[115] Ms Bruns that although the Applicant’s carers are trained, the Applicant continues to engage in challenging behaviours putting herself and others at risk.[116]
[109] Ex 6, 621-622.
[110] Ex 6, 621.
[111] Ex 6, 629.
[112] Ex 6, 635.
[113] Ex 6, 633.
[114] Ex 6, 639.
[115] Ex 6, 631.
[116] Ex 6, 637.
There is evidence that carers have sustained injuries while looking after the Applicant, including having their fingers crushed in drawers, being bitten, punched, hit, and scratched. One of the Applicant’s carers was covered in fecal matter after a throwing incident.
On the evidence, the Tribunal is satisfied that having a housemate would likely increase the Applicant’s problematic behaviours, her stress and OCD. Ms Hartley noted that, a behaviour support plan “attempts to outline best practice… it is important to note however that due to the fact that many of [Applicant’s] behaviours serve a non-social function and are hypothesized to be related to [Applicant’s] seizure disorder and may be indicative of seizure activity, these behaviours may not be reduced through behaviour intervention alone and in fact may always be prevalent in [Applicant’s] life and presentation”.[117] In those circumstances, the Tribunal finds that there is limited evidence that the suggested ‘behaviour interventions’ will have the same beneficial effect, or likely to reduce the funding of other supports.
[117] Ex 6, 406.
Moreover, the Tribunal is satisfied that the evidence does not support the Respondent’s contentions that having a housemate would lead to increased engagement, skills’ development, and self-regulation. On the contrary, the evidence is that having a housemate is likely to cause the Applicant considerable distress, which could ultimately increase the Applicant’s required support. The Respondent contended that a “carefully selected co-resident” could be a possible housemate, but this hypothetical person would be subjected to unpredictable and serious aggression, and inappropriate behaviours. Further, having another resident is likely to cause the Applicant adverse impacts, and there is limited probative evidence to suggest that shared accommodation would reduce the need to have in person supports.
The Tribunal is satisfied on the evidence that there are no comparable supports, which would achieve the same outcome at a substantially lower cost. The Tribunal is satisfied that the evidence supports a finding that single accommodation would substantially improve the outcome, for, and be of long-term benefit to the Applicant, and likely to reduce the cost of funding of supports in the long-term.
In those circumstances, the Tribunal is satisfied that s 34(1)(c) is met.
Section 34(1)(d) – effective and beneficial
The fourth mandatory criterion under s 34(1)(d) requires the Tribunal to be satisfied that the requested support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice. Rule 3.2 and 3.3 of the Supports for Participant Rules sets out the type of evidence the Tribunal might take into account in deciding whether the support will be, or is likely to be, effective and beneficial.
For the reasons given above, the Tribunal is satisfied that single accommodation would be effective and beneficial, and that having a housemate would in fact be detrimental to the Applicant.
The Tribunal is satisfied that s 34(1)(d) is met.
Section 34(1)(e) – takes account of informal supports
The fifth mandatory criterion under s 34(1)(e) requires the Tribunal to be satisfied that the requested support takes account of what it is reasonable to expect families, carers, informal networks, and the community to provide. Rule 3.4 of the Supports for Participant Rules sets out matters the Tribunal is to take into account.
The Respondent accepts that that the Applicant’s family and community do not have the capacity to provide the requested SDA type.
The Tribunal is satisfied that s 34(1)(e) is met.
Section 34(1)(f) – most appropriately funded through the NDIS
Section 34(1)(f) of the NDIS Act requires the Tribunal to be satisfied that the support under consideration is most appropriately funded through the NDIS and is not more appropriately funded though other service systems. Rules 3.5 to 3.7 of the Supports for Participant Rules refer to Schedule 1, which sets out matters the Tribunal is to take into account when assessing this criterion.
The Respondent accepts that that SDA, irrespective of the type, is appropriately funded through the NDIS.
The Tribunal is satisfied that s 34(1)(f) is met.
The Tribunal is therefore satisfied that s 34(1) is met.
Rule 16 of the SDA Rules
Rule 16 of the SDA Rules sets out the matters which the decision-maker must have regard to when determining SDA building type.
(a)The eligible participant’s preference, if the preference can be established and it aligns with the eligible participant’s statement of goals and aspirations
As outlined above, the Applicant’s goals were prepared a few years ago when she expressed interest in sharing with another female housemate at some stage in the future.
The Tribunal is mindful that the Applicant’s desires and preferences are not determinative, and that the decision-maker must be satisfied of the appropriate building type.
For the reasons explained earlier, the Tribunal does not consider dual-occupancy accommodation to be a suitable option.
(b)the features of the building type in relation to the eligible participant’s needs
This is not relevant to the question of whether single or dual occupancy is appropriate in the Applicant’s circumstances.
(c)the support model that is more appropriate for the eligible participant, having regard to the eligible participant’s needs and whether immediately available or constant person-to-person support is required
For the reasons explained above, dual occupancy SDA would not be appropriate for the Applicant. To reiterate, the evidence indicates that the Applicant’s challenging behaviours would put at risk the safety of both the Applicant and any housemate.
(d)the eligible participant’s support needs
For the reasons outlined above, the Tribunal is satisfied that a single occupancy SDA would be more suitable for the Applicant than dual-occupancy, and is consistent with her support needs.
(e)whether the building type represents value for money in that the costs would be reasonable, relative to both the benefits achieved and the cost of alternatives
This rule has been dealt with above in addressing the criteria in s 34(1).
(f)the extent to which the building type would facilitate social and economic participation, including how the building type may impact on (i) the eligible participant’s ability to engage in the life of the household and community; and (ii) the dynamics of the household, including the eligible participant’s ability to share with others and build relationships
This rule has been dealt with above in addressing the criteria in section 34(1).
(g)the extent to which the building type facilitates past, established or planned connections or the continuation of established connections, in particular cultural and community connections
This rule has been dealt with above in addressing the criteria in section 34(1).
(h)the extent to which the building type increases, reduces or mitigates the risks to the eligible participant and others, having regard to the eligible participant’s response to risk and the interaction of the eligible participant with the environment
On the evidence, the Tribunal has been satisfied that the Applicant’s behaviours pose a real risk to the safety of the Applicant and to any potential housemate. As such the requested single occupancy SDA is more appropriate than dual occupancy.
(i)the extent to which the building type improves the life stage outcomes for, and be of long-term benefit to, the eligible participant
For the reasons outlined above, the Tribunal is satisfied that there would be no long-term benefit to the Applicant in sharing accommodation with a housemate. On the contrary, the cumulative evidence indicates that there are significant risks to the Applicant and to any potential housemate in case of dual occupancy.
(j)the extent to which the building type impacts on the eligible participant’s capacity or capabilities, including: (i) whether it alleviates the impact of the eligible participant’s impairment on the eligible participant’s daily functioning; and (ii) whether it enhances the eligible participant’s skill development, in particular independent living skills; and (iii) whether it increases the benefit and effectiveness of supports, other than specialist disability accommodation, for the eligible participant’s skill development, in particular independent living skills; and (iv) whether it enhances the opportunity for a move to accommodation other than specialist disability accommodation, or to lower cost specialist disability accommodation, in particular through a transition period with intensive capacity-building supports
The Tribunal is satisfied that the evidence supports a finding that a single occupancy SDA would assist in managing the Applicant’s disabilities more effectively, including, minimising additional stressors to enhance a safe environment for all concerned.
(k)the extent to which the building type facilitates or sustains informal supports and the extent to which those supports reduce the cost of other supports
The evidence before the Tribunal supports a finding that single occupancy SDA would assist the Applicant’s informal supports in reducing the potential for escalation in the Applicant’s challenging behaviours, and as such the potential need for maintenance to the property.
(l)the extent to which the building type facilitates or hinders the provision of other supports required by the eligible participant
As noted earlier, carers and others have provided extensive evidence of how and why they would be adversely impacted in case the Applicant shares accommodation.
(m)the extent to which the building type facilitates access to other support or specialist services required by the eligible participant and which are not funded or provided through the National Disability Insurance Scheme.
This rule is not relevant in the present case.
Other matters
Of particular relevance is Rule 5.1(a) of the NDIS Supports Rules stating that a support will not be funded under the NDIS if it is likely to cause harm to the participant or pose a risk to others. The Tribunal is satisfied that a fair analysis of the cumulative evidence indicates that there is a real risk to the safety of the Applicant and any potential resident sharing, in case of dual occupancy SDA. The Tribunal accepts the Applicant’s position that it is ‘probable’ that the Applicant would be a risk to her other housemate.[118]
[118] Syddall and National Disability Insurance Agency [2022] AATA 3738 at [81]-[83].
CONCLUSION
Having regard to the evidence independently and cumulatively, the Tribunal finds that dual occupancy SDA is not appropriate in the Applicant’s case, essentially due to the risk to the safety of the Applicant, and potentially to any housemate, even if carefully selected.
The Tribunal is satisfied on the evidence that the correct and preferable decision is a set aside.
DECISION
The Tribunal sets aside the decision under review pursuant to s 43(1)(c)(ii) of the AAT Act and the matter is remitted to the Agency for reconsideration with a direction that within 28 days of this decision, the Applicant’s statement of participant supports specifies for Specialist Disability Accommodation as follows:
SDA Type: New Build
Design Category: Robust
Building Type: Villa/Duplex/Townhouse, 1 bedroom, 1 SDA eligible resident
Location: NSW – Central Coast
OOA: Yes
Fire Sprinklers: Yes

I certify that the preceding 170 (one hundred and seventy) paragraphs are a true copy of the reasons for the decision herein of Deputy President Antoinette Younes

.................................[SGD].......................................
Associate
Dated: 15 May 2024

Date(s) of hearing:

Last submissions:

5 - 6 March 2024

14 March 2024

Counsel for the Applicant:

Counsel for the Respondent:

Ms M O’Brien

Mr M Nesbeth

Solicitor for the Respondent:

Mr J McGovern, Maddocks