Lougher and National Disability Insurance Agency

The Administrative Appeals Tribunal (AAT) considered the case of Lougher and the National Disability Insurance Agency (NDIA). The applicant sought Specialist Disability Accommodation (SDA) in the Robust design category. The dispute centred on whether the proposed SDA met the requirements of section 34(1) of the NDIS Act, specifically concerning value for money and the potential harm to the participant and risk to others.

The legal issues before the Tribunal were whether the NDIA's decision to refuse funding for the requested SDA was correct, and if not, what the appropriate decision should be. This involved determining if the proposed SDA would assist the applicant in pursuing their goals and aspirations, and whether it represented value for money, considering the applicant's complex needs, including chronic epilepsy, autism, severe intellectual disability, and significant behavioural challenges. The Tribunal also had to assess the risk of harm to the applicant and others, as well as the risk of property damage, given the applicant's history of aggressive behaviours.

The Tribunal reasoned that while the applicant's goals, as stated in their NDIS plan, included a desire for independence and living in their own home, the evidence presented, particularly from carers and medical professionals, highlighted significant risks associated with shared accommodation. These risks included the potential for the applicant to harm herself, others, and property due to her behaviours of concern. The Tribunal found that the proposed SDA, in a shared living arrangement, would not be safe or appropriate given these risks. Consequently, the Tribunal set aside the NDIA's decision.

The Tribunal remitted the matter to the NDIA for reconsideration with a direction that the applicant's statement of participant supports specify Specialist Disability Accommodation of a New Build design, Robust category, as a 1-bedroom villa/duplex/townhouse for one SDA eligible resident in NSW – Central Coast, with an "Only Once" (OOA) arrangement and fire sprinklers.