LWVR and National Disability Insurance Agency

[2021] AATA 4822

LWVR and National Disability Insurance Agency [2021] AATA 4822 (24 November 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/1095

Re:LWVR

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:The Hon. Justice McEvoy, Deputy President

Date:24 November 2021

Place:Melbourne

The decision under review is set aside and in substitution of the reviewable decision, the Tribunal sets aside the earlier decision of the Respondent to approve the statement of participant supports in the 6 January 2021 plan, and in substitution of the earlier decision, approves a statement of participant supports that specifies the building type for the purposes of the SDA eligibility as ‘apartment or villa, 1 resident’ and otherwise specifies the reasonable and necessary supports as set out in the 6 January 2021 plan.

.......................[SGD]........................
The Hon. Justice McEvoy, Deputy President

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – Reasonable and necessary supports – Specialist disability accommodation – Single or dual dwelling – Risk to applicant’s mental health – Value for money considerations – Respondent accepts that risk to applicant’s mental health so grave as to justify the additional costs in providing single specialist disability accommodation – Decision under review varied.  

Legislation

National Disability Insurance Scheme Act 2013

National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020

Cases

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

McGarrigle v NDIA (2017) 252 FCR 121

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

NDIA v WRMF (2020) 276 FCR 415

R v Cambridge Health Authority (Ex parte B) [1995] 2 All ER 129

REASONS FOR DECISION

The Hon. Justice McEvoy, Deputy President

21 December 2021

1. LWVR (“the Applicant”) seeks review of a decision made by a delegate of the Chief Executive Officer of the National Disability Insurance Agency (“the Respondent”) on 15 February 2021 pursuant to section 100 of the National Disability Insurance Scheme Act 2013 (Cth) (“the NDIS Act”).

2. The application was heard by the Tribunal on 8, 9, 10 and 24 November 2021. The first three days of the hearing were devoted to the evidence, and the parties thereafter filed detailed closing submissions. These submissions reflected a considerable narrowing of the issues, and the Respondent agreed (as the Applicant sought) that if the Tribunal’s decision was to set aside the reviewable decision it would be appropriate for orders to be made forthwith with the written reasons to follow in due course. Oral closing submissions and final orders were duly made on 24 November 2021. What follows constitutes the Tribunal’s reasons for the orders which were made at the conclusion of the hearing.

3. The Applicant is a 44-year-old woman. She was diagnosed with Friedreich’s Ataxia (“FA”), a serious and progressive neurodegenerative condition when she was 15 years old. FA is permanent and there is no cure. Ultimately it is fatal. Over time the condition results in a progressive loss of balance, coordination and muscle strength rendering those who suffer from it completely physically incapacitated. As such the Applicant is wheelchair-bound, and relies heavily on supports for daily living activities. She has severe weakness in the trunk and limbs and she cannot stand or transfer on her own. She also experiences spinal scoliosis and spasticity in her feet. Despite the Applicant’s disability she is an active, articulate, intelligent and thoughtful person.

4. The Applicant lives with her parents and her brother in Melbourne. Her brother has the same condition. The Applicant’s parents have been her primary carers and they are now aged in their 70s. They are no longer able to provide the Applicant with the high level of support that she requires and it is no longer practicable for her to live with them.

5. The Applicant wishes to live independently and alone, something she has never been able to do. She has been assessed by the Respondent as eligible for specialist disability accommodation (“SDA”). On 6 January 2021 a delegate of the CEO approved a statement of participant supports for the applicant under subsection 33(2) of the NDIS Act. However the plan approved by the delegate was for a house with two residents.

6. The Applicant requested a review of this decision under subsection 100(2) of the NDIS Act. The outcome she sought was for her SDA eligibility to include a house for one resident. However on 15 February 2021 the reviewer confirmed the original decision under subparagraph 100(6)(a) of the NDIS Act. This confirmation of the original decision is the decision under review.

7. The issue for consideration on review is therefore whether the support for SDA that should be approved in the Applicant’s plan pursuant to subsection 33(2) of the NDIS Act should be approved by the Respondent on the basis that she lives alone, or shares with another person. The Tribunal’s task is to stand in the shoes of the Respondent and make the correct or preferable decision on the material before it: Shi v Migration Agents Registration Authority (2008) 235 CLR 286, [37]-[38], [45]-[46] (Kirby J), [99] (Hayne and Heydon JJ), [140]-[143] (Kiefel J); Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60. In particular, in the present statutory context, is it the correct or preferable decision to approve, vary, or modify the supports as set out in the Applicant’s plan: McGarrigle v NDIA (2017) 252 FCR 121, [85] (Mortimer J)?

8. It is the Applicant’s position that the Respondent should modify the supports as set out in her plan to enable her to access funding for SDA on the basis that she live alone. This is because the medical evidence exposes risks to the Applicant’s mental health of the most serious kind if she is compelled to live with another person. Thus she says that the provision of funding for SDA on the basis that she can live alone is a “reasonable and necessary” support for the purposes of subsection 4(5) of the NDIS Act (see also subsection 4(11) of the NDIS Act).

9. The Respondent does not dispute the fact that there is medical evidence to the effect that requiring the Applicant to live with another person will likely exacerbate her depressive and anxious symptoms. Indeed, the Respondent accepts that evidence of the real possibility that the Applicant may take her own life if she faced the prospect of sharing SDA should be given particular weight.[1] Also, having regard to the totality of the evidence, including the evidence as it emerged during the hearing, the Respondent accepts that the risk to the Applicant of residing in a shared care environment militates against a conclusion that a dual occupancy dwelling is appropriate to support the Applicant, despite it being an effective and beneficial model to support her physical needs and despite the possible effect of any physical deterioration on her state of mind.[2]

   [1] Respondent’s Closing Submissions dated 18 November 2021 [46].

   [2] Respondent’s Closing Submissions dated 18 November 2021 [48].

10. The Respondent’s concession in this respect, it must be emphasised, reflects the evidence in this case. In particular it reflects the Applicant’s age, her personal history which has resulted in what was identified by an expert forensic psychiatrist as an appropriate fear of strangers in the context of her longstanding depression which is associated with her disability, the increased risk caused by this depression, and the view of two health practitioners with relevant expertise that she was at significant risk of attempting suicide if she were funded on the basis that she would share with someone else.

11. Nonetheless, the Respondent maintains that the cost and resource-allocation significance of a participant not sharing resources that can be shared ought not to be underestimated. It submits that in the particular context of the “value for money” considerations in section 16 of the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (“SDA Rules”) and subparagraph 34(1)(c) of the NDIS Act, consideration of the financial sustainability of the Scheme is relevant to determining the weight to be given to the relative considerations mentioned in those sections. Considerations of financial sustainability in a given case, the Respondent submits, might inform a decision-maker that the benefits to be achieved by a particular support, or the risks of not offering that support, would need to be very significant given the cost of the support relative to the costs of alternative supports.[3]  

    [3] Respondent’s Closing Submissions dated 18 November 2021 [56], [59].

12. At least in the abstract, these submissions have much to commend them. Although decisions must be made on the basis of the individual circumstances of the Scheme participant, and “hard lines” cannot be drawn (NDIA v WRMF (2020) 276 FCR 415, [142]-[143] (Flick, Mortimer and Banks-Smith JJ)), plainly resources are not unlimited. Difficult judgments will often need to be made as to how limited health funds can best be allocated to the maximum advantage of the maximum number of recipients of those funds: see, in a different context, R v Cambridge Health Authority (Ex parte B) [1995] 2 All ER 129 at 137 (Sir Thomas Bingham MR). This is obviously so in the context of the administration of the Scheme under the NDIS Act.

13. However notwithstanding the various considerations which must be taken into account having regard to section 16 of the SDA Rules, including the fact that funding the Applicant to live alone would be significantly more costly for the Scheme than were she to live with another person, the compelling evidence given by qualified health practitioners in this case that sharing a dwelling with a stranger would place the Applicant’s mental health at grave risk causes the Respondent to accept that it is open to the Tribunal to conclude, on the particular and extreme facts of this case, that the risks to the Applicant’s mental health are sufficiently severe to justify the additional costs involved in providing single SDA. That is, the Respondent accepts that it is open to the Tribunal, weighing the relevant matters consistently with the requirement to have regard to the financial sustainability of the Scheme, to conclude that the risks to the Applicant’s mental health are so grave that she simply cannot share with others or that the risks are such that she should not reasonably be asked to try to do so.[4]

    [4] Respondent’s Closing Submissions dated 18 November 2021 [61]-[62].

14. The Respondent also submits that the application of the mandatory considerations in section 16 of the SDA Rules in this case also resolves the question of whether the support is “reasonable and necessary” within the meaning of section 34 of the NDIS Act. That is to say, the Respondent accepts that having regard to all relevant matters it would be reasonable and necessary to fund SDA for the Applicant on the basis that she lives alone, if her support needs can be met in that environment. That is because, despite the significant resource and sustainability issues raised by this matter, the extremely grave mental health risks to the Applicant justify the cost.[5]

    [5] Respondent’s Closing Submissions dated 18 November 2021 [65].

15. On this basis the Respondent submits that it would be open to the Tribunal to decide under subsection 33(2) of the Act, in substitution for the relevant part of the decision under review, that the specified housing type is “apartment or villa, 1 resident” (apartments and villas being the building types that are capable of being funded for only one resident).[6]

    [6] Respondent’s Closing Submissions dated 18 November 2021 [66].

16. In my assessment the medical evidence of the real possibility that the Applicant may take her own life if she faced the prospect of sharing SDA cannot be resisted. I accept, as the Respondent submits, that it must be given particular weight. Indeed, in all the circumstances this evidence can only sensibly be regarded as determinative. In effect it precludes a conclusion that the correct and preferable decision is that a dual occupancy dwelling is appropriate to support the Applicant even if it were to be regarded as an effective and beneficial model to support her physical needs.

17. On this basis I consider that, as the Respondent concedes is open on the particular and extreme facts of this case, the risks to the Applicant’s mental health are sufficiently severe to justify the additional costs involved in providing single SDA, and this is what her plan must do. That is the correct and preferable decision in this case, having regard to all of the evidence.

18. For these reasons, at the conclusion of the final hearing on 24 November 2021 and in light of the minute of order which had been agreed between the Applicant and the Respondent and provided to the Tribunal, I said as follows:

    For reasons that I will enlarge upon slightly in due course, I am satisfied that it would be reasonable and necessary to fund specialist disability accommodation for the applicant on the basis that she lives alone.  I have formed this view because despite the significant resource allocation and sustainability issues which have been raised by this application, the obviously extremely grave mental health risks to the applicant in my assessment justify the cost.

    Accordingly, under section 33(2) of the National Disability Insurance Scheme Act 2013 (Cth), the specified housing type should be substituted as “apartment or villa, one resident”. Noting that the appropriate form of order in these circumstances has been agreed between the applicant and the respondent, I will make the following orders.

    The Tribunal will –

    A.Set aside the reviewable decision dated 15 February 2021. 

    B.In substitution of the reviewable decision, set aside the earlier decision of the respondent to approve the statement of participant supports in the 6 January 2021 plan. 

    C.In substitution of the earlier decision, approve a statement of participant supports that:

    (i)     specifies the building type for the purposes of SDA eligibility as “apartment or villa, 1 resident”; and

    (ii)    otherwise, specifies the reasonable and necessary supports as set out in the 6 January 2021 plan.

    I note finally the agency’s agreement that it has been appropriate in all the circumstances for these orders to be made now with more detailed written reasons to follow in due course.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for the decision herein of the Hon. Justice McEvoy, Deputy President

.................................[SGD]...............................

Associate

Dated: 21 December 2021

Dates of hearing:	8, 9, 10 and 24 November 2021
Counsel for Applicant:	Ms Kathleen Foley S.C.
Solicitors for Applicant:	Victoria Legal Aid
Disability Advocate for the Applicant:	Ms Horton
Counsel for the Respondent:	Ms Frances Gordon
Solicitors for the Respondent:	Maddocks