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

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”).
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.
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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: LWVR and National Disability Insurance Agency [2021] AATA 4822
Case: [2021] AATA 4822
Decision Date: 24 November 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the dispute between LWVR, the applicant, and the National Disability Insurance Agency (NDIA), the respondent, concerning LWVR's eligibility for Specialist Disability Accommodation (SDA). The core of the dispute revolved around whether LWVR should be provided with a single dwelling or a dual dwelling for their SDA, and the associated costs.

The Tribunal was required to determine whether the NDIA's decision to offer a dual dwelling for SDA was appropriate, or if a single dwelling was warranted, taking into account the risk to LWVR's mental health and value for money considerations. The NDIA acknowledged that the risk to LWVR's mental health was sufficiently grave to justify the additional costs associated with providing single SDA.

The Tribunal's reasoning focused on the paramount importance of LWVR's mental health and safety. By accepting the NDIA's concession regarding the severity of the mental health risks, the Tribunal was able to conclude that a single dwelling was the appropriate and necessary support. This decision prioritised the applicant's well-being over purely financial considerations, acknowledging that in certain circumstances, the increased cost of a single dwelling is justified by the need to mitigate significant risks.

The Tribunal varied the decision under review, ordering that LWVR be provided with single Specialist Disability Accommodation.

Orders