LZMX and National Disability Insurance Agency - [2021] AATA 378

LZMX and National Disability Insurance Agency [2021] AATA 378 (26 February 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2019/7627
Re:LZMX
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:26 February 2021
Place:Adelaide

The decision under review is affirmed.
...................[SGND]........................
Senior Member B J Illingworth
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – whether support is reasonable and necessary – whether NDIA should fund a lift – whether cost of support is reasonable – whether funding a lift is consistent with the Supports for Participants Rules and Operational Guidelines – whether a lift is a reasonable and necessary support within the context of s 34(1)(c) and (e) – Decision under review affirmed
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth).
CASES
KLMN & National Disability Insurance Agency [2017] AATA 1815.
McGarrigle v National Disability Insurance Agency and Another (2017) 252 FCR 121.
Mulligan v National Disability Insurance Agency [2015] 233 FCR 201.
NDIA v WRMF 378 ALR 449; [2020] FCAFC 70.
SECONDARY MATERIALS
National Disability Insurance Scheme (Supports for Participants) Rules 2013.
Including Specific Types of Supports in Plans Operational Guideline, National Disability Insurance Agency.
REASONS FOR DECISION
Senior Member B J Illingworth
26 February 2021
Introduction

The Applicant sought review of an internal review decision of a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) (the Respondent) dated 17 September 2019. That decision affirmed a reviewable decision made pursuant to s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (the Act).
The Applicant was represented by his daughter SH, and the Respondent was represented by Mr d’Assumpcao on instructions from the Respondent. The Tribunal was greatly assisted by both the Applicant’s representative and counsel for the Respondent through their diligent and professional presentation of their respective cases.
The Applicant was a double leg amputee. He and his wife owned a residence that was unsuited to the Applicant’s disability including wheelchair use. Their surrounding suburb was also not suited to wheelchair use. The application related to the question of reasonable and necessary supports in a NDIA plan for building and renovation costs to a property, purchased by a company of which the Applicant’s daughter and her partner were directors, and into which the Applicant and his wife intended to move and occupy as tenants.
The premises had a dual function. Downstairs was converted into the daughter’s business premises. Upstairs was converted into a residential premise to be occupied by the Applicant and his wife.
A number of proposed renovation costs were in dispute at the start of the hearing. To the parties’ credit, all but one renovation cost was resolved. The remaining issue was whether a lift, installed in the premises to provide access to the first floor, was a reasonable and necessary support within the meaning of sub-paragraphs 34(1)(a) – (f) of the Act.
Background
The Applicant is 65 years of age and a double leg amputee. In March 2016, the Applicant’s left leg was amputated below the knee. In August 2016, his right leg was amputated below the knee.
In late 2016 the Applicant’s daughter was looking for new premises from which to run her psychology practice.
In early 2017 the Applicant and his wife asked their daughter to consider the purchase of a dual-purpose property in Adelaide that would accommodate the business and provide a separate residence for them. The Applicant and his wife believed a residence in the city had a number of benefits including that;
(a)it enabled the Applicant and his wife to spend more time with their daughter and daughter-in-law who worked in the practice, and see their grandchild who they could babysit for their daughter-in-law when she was at work;
(b)it enabled the Applicant to be close to the Royal Adelaide Hospital and reduce travel time to the hospital for treatment; and
(c)it was more conveniently situated to permit the Applicant a wider range of social and community activities with better disability infrastructure.
The Applicant’s daughter agreed with that proposal.
In June 2017 the Applicant suffered a fall from his wheelchair due to poor footpath infrastructure at local shops and suffered significant injury to his left stump.
In July 2017 the Applicant’s daughter purchased a two-storey property in Adelaide. The settlement date was 15 September 2017. An architect was immediately engaged to design the building renovations to accommodate the business needs of the daughter on the ground floor, and the residential requirements of the Applicant and his wife on the first floor, taking into account the Applicant’s disability needs.
On 12 December 2017 the Department of Health (SA) provided a letter of support for the Applicant’s participation in the National Disability Insurance Scheme (NDIS).
An architectural floorplan for the Adelaide premises dated 25 January 2018 included a lift for the Applicant’s access to the first floor,[1] and on 1 February 2018 the Applicant’s daughter received a proposal for the installation of an Austand CH-3000 Machine Room Less Home Lift.
[1] Exhibit C.
On 5 February 2018 the Applicant became a participant in the NDIS.
On 14 March 2018 Austand elevators confirmed the order of the Austand CH-3000 Machine Room Less Home Lift with invoice number 06181574.
On 15 March 2018 the Architect provided a lift plan and, in order to meet the deadline for the Applicant’s planned move-in date in November 2018, a 20% deposit was paid on a revised amount of $65,406.00 (including GST) for the manufacture of the lift.
On 16 May 2018 the Applicant notified the Local Area Coordinator (LAC) for the NDIS of his intention to apply for funding for a lift to be installed, and disability modifications made, to the Adelaide property. The LAC advised that the NDIA would assign a ‘holding amount’ to an NDIS plan pending provision of quotes to NDIA.
On 25 June 2018 the Applicant’s NDIS approved plan commenced and was to be reviewed by 25 June 2019.[2] That plan did not provide for a lift. On 12 July 2018 a second NDIS plan was provided to the Applicant,[3] being a preview document generated internally and was never an approved statement of participant supports. The second plan contained budget amendments.
[2] T 21, pages 129 – 142.
[3] Exhibit C.
On 13 July 2018 an NDIS plan was implemented at a meeting between the NDIS and LAC and, on the same date, the LAC requested quotes for home modification work including the lift.
On 17 August 2018, occupational therapist Ms Sarah Hockey completed an NDIS Structural Home Modification Assessment Template[4] report following an assessment of the property made on 24 July 2018. Under heading ‘List of goals’ the Applicant’s goals were as follows;

(a) to be supported to complete daily tasks as independently as possible;
(b)to be supported to obtain necessary assistive technologies to enable the Applicant to live as independently as possible; and
(c)to be assisted to identify and source home modifications required to enable the Applicant to live independently.
[4] T 8, pages 26 – 39.

At the time of the report, the Applicant and his wife were still living in their suburban residence and were planning their move to the Adelaide premises above their daughter’s business premises, which Ms Hockey reported was to enable them to be closer to their adult children and grandchild.
Ms Hockey reported that the Applicant’s mobility varied between walking with the use of prosthetic legs, mobilising in a manual wheelchair and mobilising in a powered wheelchair. He required a home environment accessible for all forms of mobility. She reported, amongst other things, that when using his prosthetic legs, the Applicant is most stable on level, nonslip floors, and was unable to descend stairs using his prosthetic legs due to high risk of falling. The Adelaide property was accessed from the front door via a footpath or via the rear garage. The staircase was not accessible for a person in a wheelchair or safe for a person with prosthetic legs. The property was currently being renovated but had not yet been fitted out.
In respect of the lift, Ms Hockey reported that it had already been specified by the engineer and approved by the Council and was ordered some months ago to ensure it would be operational by the time the Applicant moved into the apartment. There was only one quote for the lift. Under heading ‘Recommendations’, Ms Hockey reported the Applicant’s apartment was an empty shell and recommended a number of specifications necessary to meet his functional needs over and above those for typical housing which included a lift, which was required to enable access to the first floor when using prosthetic limbs and/or a wheelchair.
On 20 August 2018 the Applicant’s daughter received a quote for the lift in the sum of $80,000 which included building structural changes.
On 23 August 2018 the downstairs renovations were completed and, thereafter, the Applicant’s wife was in weekly contact with NDIA requesting information regarding a number of issues, including new prosthetics and home modification including the lift. There were delays in NDIA providing further information. An updated lift quote dated 16 January 2019 had to be obtained because the previous quote submitted on 24 August 2018 had expired.
On 1 April 2019 the Applicant and his wife entered into a Granny Flat Agreement with a proprietary limited company (the owner), of which SH and her partner were directors, in which the Applicant and his wife agreed to pay, and did pay, a “grant fee” of $410,000.00 to the owner for a life tenancy of the granny flat. The agreement provided, amongst other things, for the termination of the agreement with 12 weeks’ written notice and an entitlement to damages as a consequence of termination of the agreement, capped at the “grant fee” paid.
On 24 April 2019 the Applicant was admitted to the Royal Adelaide Hospital for six days for treatment to his left stump.
On 26 April 2019 the Applicant’s wife lodged a complaint with the Respondent relating to the delays in addressing the home modifications and prosthetics required by the Applicant.
On 3 May 2019, immediately following the Applicant’s discharge from hospital, Dr Cafaro wrote a letter of support for the Applicant, which the Applicant’s wife emailed to the Respondent on 7 May 2019, together with a request for the plan review to be completed as a matter of urgency.
The Applicant’s wife thereafter regularly contacted the Respondent to progress the resolution of the prosthetics and home modification requests, which included regular contact with the NDIA complaints team. During those communications with the complaints team, the Applicant’s wife was asked to withdraw her complaint in return for a prompt resolution of outstanding issues. The complaint was withdrawn but prompt resolution did not occur.
On 19 June 2019 the NDIS LAC advised the Applicant that the new plan would be put in place before the expiry of the existing plan or, alternatively, an “interim plan” would be provided to avoid a “gap” period. The Applicant’s wife advised the LAC that the Applicant had been informed he may need an above knee amputation on his left leg.
The Applicant’s plan review date passed with no further contact from NDIA, and no new plan or interim plan in place, and again, on 28 June 2019 the Applicant’s wife commenced daily contact with the NDIA, LAC and the NDIS complaints team, because the Applicant’s plan had expired and no further NDIS funding was available for supports, with no resolution or advice about outstanding home modifications.
On 31 June 2019 the Applicant’s daughter received a redundancy package from her employer which funds were to be designated to complete the modification of the Adelaide premises.
On 7 July 2019 the Applicant, his wife and daughter flew to Sydney for urgent specialist treatment in an attempt to avoid the Applicant undergoing a further left leg amputation.
On 19 July 2019 the Applicant underwent an above knee amputation to his left leg and, on 21 July 2019, the Applicant’s wife emailed the Respondent advising of the surgery and requested immediate funding for ‘appropriate Assistive Technology (AT) with Allied Health’.
On 7 August 2019 a NDIS plan was approved[5] with a review date of 6 August 2020, which did not include a lift within its program of supports. That plan was the subject of an application for internal review and subsequently the review now before the Tribunal.
[5] T 22, pages 144 – 153.
On 9 December 2019 occupational therapist Ms Hockey completed a further assessment of the Adelaide premises and provided an Occupational Therapy Home Modification Report dated 13 December 2019 (the December report)[6] in relation to the Applicant and the Adelaide property. At that time, the residence had been gutted with a new staircase relocated proximate to the front door of the home. The report was directed to the new architectural configuration of the premises.
[6] Exhibit C, Document 7.
Under heading ‘Functional assessment,’ Ms Hockey said that in 2018 the Applicant was able to walk with the use of bilateral lower limb prosthetics and a walking stick. He was able to ascend stairs but was unsafe to descend stairs due to risk of overbalancing and falling. He had difficulty mobilising on ramps. At the time of the December report the Applicant did not currently have a right lower limb prosthesis and the left lower limb prosthesis was available on loan only. Nonetheless, Ms Hockey reported that the Applicant completed rehabilitation following his left above knee amputation and returned to walking. It was anticipated that the Applicant would continue to be unsafe descending a flight of stairs and have difficulty mobilising on ramps. It was opined that walking with prosthetics would be fatiguing and therefore not possible as the sole means of mobilising every day.
Ms Hockey referred to the Applicant having both a powered and manual wheelchair[7]. Without the use of prosthetics and transferring between seating services, the Applicant used his upper body to slide from one seat to the other. She reported:
[The Applicant] requires seating services to be of equal height, use of weight-bearing supports to grasp with his upper limbs (e.g. grab rails) and use of slide board or stool to bridge the gap and provide additional stability during transfers.
[The Applicant’s] transfers, and sitting balance, have been impacted by the Left amputation progressing from below knee to above knee. [The Applicant] is currently less stable and has reduced capacity to correct his positioning when he becomes unsteady in sitting or during transfers. When his Left stump was below his knee, he was able to grasp the underside of seat services to increase his stability and support dynamic balance. Following the above knee amputation on his Left, [the Applicant] no longer has the ability to grip and stabilise his position on his Left side using his stump. [The Applicant’s] safety in sitting is also influenced by the depth of the seat he is using……. [the Applicant] is at an increased risk of falling from his seat when he leans or reaches forwards due to the change in his centre of gravity.
When [the Applicant] is able to wear one or two lower limb prosthetics, his sitting balance is increased.
[7] Ibid.
Ms Hockey referred to her earlier report and her recommendation for the installation of a lift and then considered options for first floor access. She opined:
(a) a stairlift was not considered suitable because:
i.the bottom of the staircase was proximate to the front door; the front door swung open internally and could not open fully if a stair lift was installed and the wheelchair was positioned at the bottom of the stairs. This might be overcome by rehanging the door to swing outward, but this would result in the loss of the front screen door. Another option was an outward swinging ‘combi door’;
ii.upon entering the premises via the front door, the Applicant would have difficulty turning his wheelchair in the area between the bottom of the staircase and the front door and the Applicant would be at risk of falling from his seat or leaning or overreaching due to his altered centre of gravity, which limited his ability to approach a door and pull it closed; but if an outward swinging combi door were installed it should be automated;
iii.even if there was sufficient area at the base of the stairs for the Applicant to manoeuvre his wheelchair into a position proximate to the seat of the stair lift, there was not enough space to position his wheelchair to perform a slide transfer to the stair lift seat and he would be dependent upon prosthetics to perform a standing transfer to the chair of the stair lift – prosthetics are not always available;
iv.the Applicant from time to time cannot wear prosthetics and on occasions would require a wheelchair upstairs and downstairs. The latter would impede access to others entering and exiting the premises;
v.given the position of the lift seat at the top of the stairs, and the risk associated with transferring to the lift seat due to the Applicant’s balance impairment during transfer, or periods of drowsiness or reduced concentration, the Applicant would be at risk of serious and potentially life threatening injury due to a fall or slip.
(b) A platform stair lift was not suitable because:
i.the circulation space at the bottom of the stairs, given its proximity to the front door, as previously discussed, remained an issue;
ii.access to the stairs was via the front door. The car park was at the rear of the premises. Therefore, to leave the home to use the motor vehicle, the Applicant would have to leave via the front door to the street and then proceed around the block in a U-shape to get to the rear of the premises and the garage-parked car. He would be required to travel in the reverse direction when arriving at the premises. The Applicant takes medication that supresses his immune system and exposure to the elements may place him at risk of infection. If the car was brought to the front of the premises, the Applicant had difficulty transferring to a car at the kerbside and at night the street was not lit as well as the rear garage;
iii.Ms Hockey referred to the option of the Applicant entering the door of his daughter’s ground floor business and proceeding through that business area to the rear garage which is a shared space. This, she opined, was not appropriate as the business operates independently and may not always be owned by his daughter. This, she further opined, impacted upon the privacy of the Applicant and the business’ customers.
A lift was considered most suitable for the Applicant to access the first floor because:
(a)there was direct access between the home and the garage. The garage was undercover with level flooring, adequate lighting and was the safest location for the Applicant to transfer in and out of his motor vehicle, whether he was walking with prosthetics or mobilising in his wheelchair;
(b)the lift enabled the Applicant to use any method of mobility, including his powered wheelchair and manual wheelchair using prosthetics with walking sticks. There was no requirement to transfer on and off a platform or seat;
(c)the Applicant would be able to use a lift independently without the need for support to participate in community activities and events, which would assist in achieving his goals.
The Applicant’s Evidence
Statement dated 14 June 2020 and oral evidence
The Applicant detailed in his statement his family’s experience with NDIS as difficult, including staff turnover causing confusion, plans and advice being inconsistent, poor communication and decision-making. He was critical of delays which he said contributed to his subsequent left leg amputation. He detailed difficulties in addressing replacement prosthetics which he said required replacement when needed, rather than when NDIA got around to it.

The Applicant referred to a complaint made to the Ombudsman which they withdrew following assurance from a staff member that outstanding issues would be progressed, but to no avail.
The Applicant said that his current house was unsuitable. He and his family looked for an alternate residence but were unsuccessful.
The Applicant explained, when using his wheelchair, some of the difficulties he had living at his current home which is located in a new suburb. Those difficulties included, from time to time, an absence of foot- paths or ramps. There was no footpath outside his home and he currently had to go down the road to get to a footpath which he can use, provided it is not a rubbish bin day, as rubbish bins on footpaths make navigating difficult. A light pole also may suddenly appear in the middle of a footpath which made manoeuvring difficult.
He can walk 20 metres at best with the aid of prosthetic limbs, after which he feels like he is bruising the bone in his stump.
Living in his current home is challenging. He cannot get out unless somebody collects him. This can put a strain on his marital relationship. In the city, he should be able to get out of the home and have more freedom. The Applicant and his wife have been wanting to move from their current home for some years and, more recently, they have been researching other premises but have found nothing.
The new Adelaide premises will enable them to see their grandson, who was about to turn three years of age, more often while their daughter-in-law is at work in the practice downstairs. It is easier to see him if they are in the same building.
The Applicant retains his driver’s licence and continues to drive. He wishes to continue to do so in the future. He uses a slide board to assist him in manoeuvring into and out of the motor vehicle from his wheelchair.
His medication can be an issue impacting upon his attention and sometimes he is required to sleep as a result of that medication.
The Adelaide premises was purchased before the Applicant was engaged with the NDIS and before any plan was in place. The premises had existing stairs and a light well which were not suitable. A new straight staircase was relocated proximate to the front door and the front door entrance area was not large. He explained difficulties in manoeuvring in that entrance area; namely, that he cannot fold his wheelchair and close the front door. At the top of the stairs was a gate, which he also had difficulty opening.
At the time of the hearing, the property renovations were nearing completion and the lift was in place. They had looked at a stair chair lift but, because of issues with the Applicant’s balance, it was not appropriate. He has a different centre of gravity and was prone to falling forwards. He gave the example of falling from his wheelchair in a centre island on a roadway.
The Granny Flat Agreement gave him and his wife a new place to live. They provided money to do some of the renovations. They hoped to move in late 2020 and will sell their existing property and give money to their daughter to help fund the building and repay her some of the expenses. The Applicant said that he and his wife had no reason to think that they will be required to leave the new premises.
Statement of LH (the Applicant’s wife) dated 14 June 2020
LH referred to the Applicant’s below knee amputations in 2016 and that he was, by the end of that year, walking independently without aids, albeit at a slower pace. He would use his wheelchair to move around the neighbourhood and was generally fit and active. He could leave the home independently by wheelchair or in his car, which was an improvement following years of ill health and rehabilitation.
In 2017, following a serious fall from his wheelchair resulting from a poorly marked median strip ramp, the Applicant spent two weeks in hospital and six months confined to his wheelchair. He lost his confidence which also impacted upon his independence and he stopped leaving the house independently.
LH detailed at length the issues she and the Applicant had in dealing with NDIS, including delays in decision making, problems with providing the Applicant with his prosthetic limbs, and the impact those, and other issues, had on them both and, in particular, on the Applicant physically and mentally. She said that the NDIS had failed them.
The Applicant was unable to help LH around the house or garden and she began to struggle and became overwhelmed. LH and the Applicant discussed moving to the city in a property without a yard. They looked at properties with their daughter to find something suitable for her business and their accommodation. The Adelaide premises provided a suitable environment for an amputee to be independently and safely mobile with secure undercover parking, wide enough for a disability park. Following its purchase in 2017, the property was re-zoned to permit upstairs to be residential. By the end of 2017, plans have been drawn up and submitted to the Council for approval. In early 2018 contracts were signed. The first-floor renovations were intended to be completed by the end of 2018.
LH said that, by 2018 the Applicant was walking, driving and beginning to live independently around the house but would rarely leave their current home. The Applicant was accepted as an NDIS participant and life was more positive again. However, she then detailed problems that followed. Issues arose with the approval of house modifications. She said:
it was also suggested that we slow down the build so the NDIS approval comes through before we spend the money. Installing a lift could be problematic, but we were encouraged to include it in the home modifications.
LH detailed further difficulties with the NDIA plan, including money allocated for the Applicant’s prosthetics. There were issues following the provision of lift quotes which were submitted but without response from NDIA. The Applicant was having significant problems with his prosthetics which were uncomfortable, causing pain and not fitting properly. He became almost completely wheelchair bound and those issues impacted upon the Applicant and his health, including his mental health. LH said the move “to the apartment is going ahead whether the funding is granted or not. It is the best option for us (financially, physically and mentally), and our family.”
LH said:
due to lack of communication and delays in making decisions, it has become more difficult for [the Applicant] to achieve his goals. He wants to walk, but it has been seriously delayed! He wants to move to a house which caters for his needs in an environment that is safe, but can’t!
She expressed her anger and dissatisfaction with the way that she and the Applicant had been treated, the “red tape” involved in the process and the distressing impact that the system has had upon her which is ongoing.
Undated Statement of SH (the Applicant’s daughter)
SH corroborated the evidence of the Applicant and LH with respect to the Applicant’s health, which has been an issue for many years prior to his leg amputations in 2016.
SH confirmed that in 2017 a decision was made to buy a building in the city, and that her mother approached her with the suggestion that she and the Applicant could be part of the building purchase, which would enable them to be closer together as a family, and for SH to be on hand to provide support. She and her brother lived some distance from the Applicant’s current residence. When at work, SH would be on-site to provide assistance and otherwise lived 10 minutes from the city to come to their assistance if required. The Adelaide premises would also enable the Applicant to access the community independently and spend more time with family.
A decision was made to enter into a Granny Flat Arrangement. The building was to be completely gutted with internal structures built specifically for her father, which included wider doors and corridors and a general disability friendly layout, which did not add value for most buyers.
After the Applicant was accepted as an NDIS participant, SH said:
He applied for new legs and modification to the building. He was told that his plan had “place holder” amounts and that when quotes were submitted, they will be assessed and he would have an outcome in regards to home modifications and legs, we assumed that this would be in a reasonable time.
SH then detailed delay in a response from NDIA or the Applicant’s LAC and the considerable impact that had on her, the Applicant and LH throughout 2018 and 2019.
In June 2019, SH accepted a redundancy package and intended to apply the proceeds to complete the remaining building works which had been placed on hold. She described the adverse impact the delay had on her parents and the additional stress and distress caused by the Applicant’s health deterioration, compounded by the Applicant having an above knee amputation. Her parents could not cope with their finances and she used her redundancy package to pay medical and accommodation expenses associated with that operation, rather than for building costs and her wedding, which was postponed due to financial and health issues.
Dr Cafaro Report dated 17 July 2020 and Addendum Report dated 17 August 2020
The Tribunal received a report from Dr Cafaro dated 17 July 2020 together with an addendum report dated 17 August 2020.[8] Dr Cafaro was the Applicant’s primary care specialist who had been involved in his treatment in the three-year period prior to the report date. He was also LH’s primary care specialist. He detailed the development of the Applicant’s medical conditions which are not in dispute.
[8] Exhibit D.
Dr Cafaro opined that the Applicant:
will benefit from the provision of the most essential human requirements, those being safe and appropriate housing, access to equipment which has been deemed both by myself and his specialist Orthopaedic surgeon essential to his recovery and the ongoing support of his physical and emotional well-being. He must have housing and a residence which can accommodate full-time wheelchair use and not be a hindrance on his recovery and care providers…… [The Applicant] requires the ability to conduct his normal life in an environment which is accessible to a heavily physically disabled person requiring a wheelchair full time and the expectation is on the NDIA to accommodate those humane requirements.
Dr Cafaro said that the Applicant suffered “severe Adjustment Disorder” and “resultant major Depression”. He said the Applicant:
would be able to manage independently in regards to his wheelchair transport if his residence, facilities and supports were amenable to this, which unfortunately they are currently not. This is hampering his recovery and worsening his overall condition; both physical and emotional.
Dr Cafaro received the statements of the Applicant, LH and SH. He supported the Applicant and LH’s decision “to relocate to a setting which is conducive to [the Applicant’s] recovery, close to his care providers and is custom designed to manage his permanent and likely deteriorating medical situation.” Dr Cafaro also opined that LH was suffering significant deterioration of her well-being, which will worsen until services and facilities are arranged to support the Applicant to become independent and function as his disability will allow him.
Closing submissions
The Applicant’s Submissions
The Applicant submitted that the funding of a lift met the criteria of a participant’s goals, which included his independence, and moving to the Adelaide premises represented a cost saving to NDIA. Their family members are the ones who do things for the Applicant rather than placing an imposition on, or relying on, the NDIA.
In considering reasonable and necessary supports, which the Applicant said was not defined, it was necessary to look at the Applicant’s personal circumstances.
The Applicant referred to the occupational therapy report and, in respect of a stair chair, the risk of a miscalculation and fall with potential serious consequences. As for the platform stair lift, the Applicant highlighted the difficulties with manoeuvrability at the base of the stairs, the issues raised by the occupational therapist with respect to the hanging of the front door, and the need for the Applicant to potentially go around the block to access his car and return, in circumstances of poor lighting at night, or poor weather, which may have an effect on the Applicant’s health.
The Applicant submitted that the occupational therapist’s report said there was no option for a staircase at the back of the building and it was not appropriate to have two staircases. It was submitted that they had considered the Applicant and his wife living downstairs, however, one third of the downstairs area was taken up by car park and hence upstairs provided a greater and more appropriate living area.
It was submitted that the Applicant’s current home was not disability sympathetic, and its surrounds were not suitable for the Applicant. They could not gut an entire house and start again. The Adelaide premises enabled SH to be geographically close to the Applicant and LH; her residential home was 10 minutes away if her help was needed when she was not working in her business practice on the ground floor.
It was submitted that the Adelaide premises was purchased prior to the rollout of the NDIS. The settlement date on the property was 15 September 2017 and the Applicant applied to be a participant in the NDIS at the end of January 2018. The floor plan was finalised the following day on 25 January 2018. The Applicant submitted that the work done to the property arising out of the Applicant’s disability, such as grab rails and a shower niche, did not “value add” to the hypothetical purchase of the property by a “mainstream buyer.” They also lost one car park space due to the lift.
In referencing the provisions of s 34 of the Act, the Applicant submitted that:
(a) The lift gave the Applicant independence. It would enable LH to visit her sister in Brisbane which she was currently unable to do. The lift meant the Applicant did not need others present with him. The platform stair lift and stair chair lift were not options, the latter because the risk of falling remained.
(b) The lift gave the Applicant the ability to interact socially, to go to the shop and would enable him to exercise and improve his psychological health.
(c) The lift represented value for money. The stair chair lift seat was not safe and, albeit the platform stair lift may be possible, there was an issue with the structure of the building and the position of the bottom of the staircase proximate to the front door.
(d) The Adelaide premises, being in the city, enabled the Applicant to have closer access to others, including the Royal Adelaide Hospital.
(e) The lift was effective and beneficial for the Applicant.
(f) The lift represented what was reasonable, when balanced with the expectation of family support, carers or other supports that may be available. The Applicant referred to paragraph 22 of his Statement of Facts, Issues and Contentions and to KLMN and National Disability Insurance Agency [2017] AATA 1815 at [44] and argued that, in respect of section 34(1)(e) of the Act, participant families should not be expected to pay for disability supports that meet the criteria of the Act. There are no other services to fund this reasonable and necessary support.
The Applicant then referred to National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Rules) at Part 3 – Assessing proposed supports. At paragraph 3.1 under heading ‘Value for money,’ the Applicant submitted, consistent with the Rules, that the lift:
(a) represented value for money with no comparable supports;
(b) would improve the Applicant’s life stage outcomes and add to his long-term benefit, including access to the community and increased independence with self-pride and a purpose in life;
(c) was cheaper in cost now than in the future and reduced the funding for supports in the long-term;
(d) was not a support that could be leased;
(e) was safe when compared to a stair chair lift and other options; and
(f) increased his independence and access to the community and would ensure less support from other support services and promote support that may be provided by other members of the family.
The Applicant said that the purchase order for the lift had to be in place to ensure shipment and installation within the required time frame, and they knew they would initially have to fund the cost and seek reimbursement, but there were delays with NDIA in engaging and responding to the Applicant and updated quotes had to be obtained.
At the time of the purchase of the Adelaide premises the Applicant could get up and down stairs but, after his fall, he became wheelchair bound for six months. Thereafter, following his further above knee amputation, his ability to use the stairs was significantly impeded.
It was submitted that the Applicant fell into a small subset of those who are amputees. A single leg amputee or bilateral below knee amputee might still use stairs, but the Applicant had the added complication of an above knee amputation, which added a significant level of disability which he incurred later in life.
There was no other viable property available and the ground floor of the Adelaide premises was not of sufficient size to accommodate the Applicant and LH. The size of the property was tight and, by moving the staircase, they lost a downstairs consulting room. It was submitted that the Applicant will be in the house for perhaps 15 to 20 years and therefore the yearly investment in providing a lift was not a great expense to the NDIS.
The Applicant submitted that, by moving to the Adelaide premises, NDIA avoided the need to make modifications to their current home or repair the property where the Applicant damaged walls and doorframes. Modifications to their current residence did not make sense and it would have been cheaper to knock down and rebuild their house. By living in their current residence, the Applicant and SH avoided the need to rent a full-time alternate residence while renovating.
The Applicant repeated the criticisms previously raised, and to which the Tribunal referred, about the manner in which NDIA performed its role in assessing and providing for the Applicant, and the impact that had on the Applicant’s health and that of other family members.
The Respondent’s Submissions
The Respondent submitted there are two particular reasons why the lift was contentious, namely:
(a)a decision was made between the Applicant, his wife and his daughter well before funding was sought to install a lift; and
(b)the Applicant and SH were intending to complete work, including the lift, and financing it regardless of the outcome to the NDIA.
The Respondent referred to the Applicant’s submission that regardless of the outcome they intended to meet the cost of the lift, which the Respondent submitted was a cost that fitted squarely within s 34(1)(e) and what it is reasonably expected families provide.
The Respondent referred to Mulligan v National Disability Insurance Agency [2015] 233 FCR 201 in which Mortimer J at [19] – [20] said:
[19] Section 4 of the Act sets out 16 “general principles”. The first role of these general principles in the legislative scheme is set out in s 4 (17), which provides:
It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:
(a) the progressive implementation of the National Disability Insurance Scheme; and
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme.
[20] Thus, the role of the 16 general principles is qualified by decision-makers being required to take into account the two or more pragmatic considerations in s 4(17)(a) and (b).

It was submitted that, in particular, s 4(17)(b) was an important consideration in this case and that the words ‘the need to ensure the financial sustainability of the Scheme’ suggests that, in the absence of an appropriate restraint on the funding for supports, the NDIS’ financial pool may dry up. This, it was submitted, was what Mortimer J had in mind when referencing the pragmatic approach.
The single item, namely the cost of the lift of $85,000.00, outweighed the support he was receiving of approximately $66,000.00.
The Respondent provided the Tribunal with a table extract from the public Council of Australian Governments report dated March 2020 as an aide-mѐmoir for the purpose of giving indicative figures of the number of participants within the NDIS who potentially had mobility issues, were wheelchair users or wheelchair bound. This number represented about 6% of those NDIS participants. It was submitted that, if half of those people sought funding for a lift, the cost would be significant. Even if only a quarter of that group sought funding it would still be a significant amount. Hence, a case like this could open the floodgate for those who may wish to move to a first-floor apartment, which arguably would impact upon the financial sustainability of the NDIS. The Respondent acknowledged the lack of certainty in assessing the impact of similar requests on the NDIS but submitted this was the best predictive exercise the Respondent could produce to assist the Tribunal.
The Tribunal raised with the Respondent during submissions the difficult circumstances in which the family found themselves. They were dealing with the accommodation and the installation of the lift at a time when the State’s role was coming to an end in supporting the Applicant and the NDIS was taking over. There were serious consequences for the Applicant following his fall and subsequent above knee amputation, such that the family were left to make a decision in traumatic and difficult circumstances in hope of funding. The Tribunal asked if this impacted upon whether the request for support was reasonable and necessary in the circumstances of this matter.
The Respondent pointed out that the lift had already been ordered before the Applicant underwent his above knee amputation. The deposit was paid on 20 March 2018. The Respondent acknowledged the difficult circumstances facing the Applicant and his family but there was no opportunity for the Respondent to obtain expert evidence, including that the original staircase would have offered a comparable alternative support. It was accepted that a plan indicating the original position of the stairs had been produced, but the premises was gutted, and new stairs were in place that were said by the occupational therapist to be unsuitable. Hence, the Respondent was forced into a position where they could only assess the situation from the perspective that a lift was the only option. There was no alternative option. The Respondent submits that the parties find themselves before the Tribunal and that the Respondent has been denied the opportunity to participate in the home modification against the statutory framework, the Guidelines, what was reasonable and necessary, and the threshold considerations in paragraphs 34 (1) (a) – (f). The Respondent submitted that Government has mandated those threshold considerations and they must be regarded, where relevant.
The Respondent agreed with the Applicant’s submission that sub-paragraphs 34 (1) (c) and (e) were enlivened in this matter. The notion of supports, it was submitted, starts at the time a person’s plan comes into effect and having regard to the rules about preparation of plans and the matters that must be included in the participant’s plan[9].
[9] Sections 32A and 33 of the Act.
In considering what are ‘reasonable and necessary’ supports, the Respondent referred the Tribunal to McGarrigle v National Disability Insurance Agency and Another[10] and NDIA v WRMF[11]. It was submitted that what is reasonable and necessary is a highly fact dependent matter, which is to be read as a composite phrase and the words are not to be isolated so to consider separately what is reasonable, and what is necessary. Hence, what is reasonable and necessary binds the decision maker to a practical assessment of the supports which are sought to be approved, having regard to s 34(1) (c) and (e) of the Act. The Tribunal agrees with the Respondent’s submission.
[10] (2017) 252 FCR 121 at [41].
[11] 378 ALR 449 [2020] FCAFC 70 at [143] – [153].
The Respondent submitted that s 34(1), and in this case, paragraphs (c) and (e) makes clear Parliament’s intention that the NDIS is not a “one stop shop” for participant supports. Hence, for example, a swimming pool generally will not be approved; it is unlikely to be directly relevant to a participant’s goals and aspirations and is an extravagance. Paragraph (e) provides that the support takes account of what it is reasonable to expect families to provide. The use of the words “to expect”, it was submitted, has important work to do. It is appropriate for the Tribunal to expect how funds available to the NDIA will be deployed towards reasonable and necessary supports.
It was accepted that there was some inconvenience to the Applicant in funding the lift, but the decision to purchase and install the lift was always going to proceed. The property had been purchased in September 2017 and before the Applicant’s above knee amputation. The Applicant became a participant in the NDIS in February 2018.
In 2017, two architects were engaged. The architectural plan provided for the removal of one staircase and replacement by another. The decision was made to install a lift. The Applicant may have genuinely believed it was the best option following professional advice and was prepared to pay the cost regardless.
It was submitted that the occupational therapy report was predicated on a replacement staircase that was in situ and, in those circumstances, the lift was the only decision reasonably made. However, this, it was submitted, detracted from what was reasonable and necessary in the circumstances which gave this matter its uniqueness. The Respondent referred to the distinction to be drawn between what was subjectively the right decision and what was objectively the right decision.
In the circumstances of this matter, and given the conduct of the Applicant, there was only one decision “on the table”. The Respondent submitted that, on his instructions, had a suitable stairway been available for consideration, then it would have been considered in terms of cost and appropriate assistive technology.
The Respondent submitted that the Applicant would have known the NDIA’s budget was to come into play with respect to the cost of purchasing and installing the lift. What might reasonably be expected to occur when such a large structural change is to take place, with the knowledge it might not be approved, was an engagement by the Applicant with NDIA. The failure to do so, suggests the “running of a bet”, or taking a chance. The Respondent submitted that, in effect, it has been “handed a cheque”. The Respondent was not being critical of the Applicant. His was a subjective decision, but that was not a reasonable step to take in all the circumstances. Objectively, it was not reasonable in all the circumstances.
The Respondent submitted that what the Applicant should have done was to consult appropriately with the NDIA before those decisions were implemented. The NDIA would have had the opportunity to explore other options. It was a surprising decision to put a wheelchair user on a top floor, but that was the decision they made.
When considering the concept of “value for money” in s 34(1)(c), the Respondent submits that a sense of proportionality is involved. This, it was submitted, is clear from the words of the section that it contemplates value for money “in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support”.
The Respondent accepted the Tribunal’s comments about the benefits that the Applicant will receive, including: independence, that his wife LH can travel to see her sister interstate, that the Applicant can engage with his grandchild by having access to a playground in the park across the road and that he can get his life back; whereas at his current home he has no life. However, the Respondent submitted these factors must be considered relative to the NDIA’s cost. It is a balancing exercise.
The Respondent submitted the Tribunal might ask itself whether the support is reasonably adapted to serve the legitimate goals of the Applicant, and whether it is an efficient use of taxpayers’ funds. In doing so, the Tribunal may consider what is reasonable to expect families to provide as contained in s 34(1)(e).
It was submitted that standard home modifications are more likely to be approved than high end modifications. The Respondent referred the Tribunal to Part 3 of the Rules – Assessing proposed supports – under heading ‘Value for Money’. Most of those considerations cannot be considered because comparable supports are not now available. Hence, for example, with respect to paragraph (a), there is no evidence that enables the Tribunal to look at comparable supports that would achieve the same outcome at a substantially lower cost. Paragraph (b) is in the Applicant’s favour. Paragraph (c) is difficult to assess but may tip in the Applicant’s favour. As for paragraph (d), comparative costs of other options would assist the Tribunal but now cannot be engaged on the facts of this matter. This, it was submitted, ought to militate against the Applicant. Paragraph (f) was accepted as being in the Applicant’s favour as the lift would increase his independence.
However, it was submitted that the difficulty in applying the Rules was that the Respondent had been deprived of the consideration of those key principles on the facts of this matter which, it was submitted, resulted in the Respondent being disadvantaged, and ought to weigh against the Applicant.
The Respondent invited the Tribunal to bear in mind the Applicant’s evidence that the modifications to the home are substantially complete, with some cosmetic matters to attend to. This confirms that this decision to proceed with the first-floor apartment was conceptualised very early after the purchase of the property in 2017 and now realised. The Applicant made the decision to relocate to an upper floor apartment premises. The question is why the NDIA should pay for a modification in circumstances where there was, by the Applicant’s conduct, now no alternative consideration.
The Granny Flat Agreement contained a clause referring to how the agreement might be revoked or discharged. It was submitted that a number of circumstances might arise that impacts upon that agreement, for example, a business decision or financial collapse of the business. The lift is an extraordinary outlay where the Applicant does not have any interest in the property beyond the Granny Flat Agreement. From that perspective, it may not be regarded as a reasonable and necessary support, particularly when having regard to paragraph 34 (1) (c) and value for money considerations.
The Respondent submitted that there was very little strong evidence that other suitable properties were considered, such as a two-storey premises that may have enabled the Applicant to live on the ground floor and the daughter’s business to be located on the first floor.
The Act contemplates family networks to provide supports and this is a case that family supports ought to apply. This was a lifestyle choice adopted by the Applicant in the knowledge that the cost may not be approved and the Respondent submitted that the cost is a funding which falls squarely under s 34(1)(e), namely a cost that was reasonable to expect the family to provide.
The Respondent was not aware of a decision of the Tribunal that considered a lift in circumstances such as those before the Tribunal and in respect of an Applicant with similar disability. The Respondent referred the Tribunal to extracts of the Operational Guidelines[12] under heading ‘Home Modifications’ namely;
Home modifications are changes to the structure, layout or fittings of the participant’s home that are required to enable the participant to safely access and move around frequently used areas in their home as a result of their disability.
The Respondent submitted that the lift would not necessarily have been a required modification had appropriate consultation taken place. It is expected that a home modification would only be considered where the home to be modified is a participant’s primary residence and the participant intends to remain living at the residence.
The Applicant is 65 years of age and intends to remain residing at the premises, but he has no interest in the property beyond the Granny Flat Agreement and that arrangement may change.
[12] Exhibit K.
With regard to the subsequent items contained within the Operational Guidelines, the Respondent made the following submissions:
·     Whether the proposed home modification represents value for money when compared to the cost of other lower cost alternatives …. which reasonably achieve the same intended benefits or outcomes, or assistive technology[13].
The Respondent repeated the earlier submission when referencing s 34(1)(c).
·     When complex and expensive home modifications are being considered, the NDIA may also fund oversight by a project manager or independent building certifier to ensure compliance of the modification and a qualified and experienced Occupational Therapist to certify the effectiveness of the modification to meet the participant’s goals and likely future needs[14].
This, it was submitted, contemplated the NDIA’s involvement in complex home modifications and that this matter was an example of such modification. In this matter, the NDIA has been removed from that process and cannot change the modifications.
·     The NDIS will generally not fund (my emphasis) modifications for a property purchased after a participant was granted access to the NDIS, unless the NDIA was involved in the decision to purchase the property, or the purchase of a more accessible property was not possible[15].
The Respondent submitted that, albeit the property was purchased before the participant was granted access to the NDIS, there is an expectation that the NDIA will have the opportunity for some involvement in decision-making processes, and the NDIA was not afforded that opportunity in this matter where it may have been appropriate to do so.
[13] Ibid.
[14] Ibid.
[15] Ibid.
In response to the Tribunal’s question, the Respondent acknowledged it was aware of the lift and the intended modification at the time the Applicant’s admission to the NDIS was approved, however, the extent of NDIA’s involvement was wholly lacking, such as the decision to remove the original staircase. It was one thing to have the fact on their radar, it was another thing to engage with the NDIA on the basis that the Applicant was seeking approval for payment. Instead, what happened in this matter was that the lift was already purchased.
The Respondent maintained criticism of the Applicant for failure to engage, including with respect to their goals and aspirations. It was submitted that it is necessary for the person seeking support and funding to engage with NDIA irrespective of communication difficulties that may have existed, such as those referred to by the Applicant. The Respondent urged the Tribunal not to translate the difficulties expressed in dealing with the Applicant’s prosthetic limbs into a similar difficulty with respect to the lift.
The Respondent also pointed out the words “generally not fund” when considering the various exclusions outlined in Operational Guidelines. Included within the list of exclusions is the following:
capital building additions such as additions of rooms, stories or lifts or inclinators to allow access to multiple levels of a home or steep blocks of land.
That, it was submitted, was the kind of specific example, that will not be funded. However, when considering that funding, the Guidelines also require consideration of the following:
(a)whether other parts of the house can be reasonably organised as an alternative;
(b)whether alternative accommodation which is more accessible or more easily modified is available and the cost;
(c)whether there are compelling factors related to the participant… which makes moving premises unrealistic;
(d)the long-term cost benefits of alternative funded supports against the cost and benefits of the modification. The change of premises consideration did not apply in this matter;
(e)it is generally expected that the home modifications will be suitable for the participants anticipated long-term needs.
The Respondent again argues that, albeit the Applicant intends to continue to reside at the premises for an extended period of time, there still remains the concern that for economic or other reasons, such as the impact of the current COVID-19 pandemic and its economic consequence upon the business, the ability of the Applicant to remain in the premises may be at some risk.
The Respondent submitted that, having regard to the Guidelines, there was nothing unusual about the Applicant’s circumstances that took this matter beyond the ordinary application of the Guidelines.
The Applicant in reply said that, as a family, they will do everything they can for the Applicant and gave the example where recently, at first instance, the NDIA would not fund the rental of a prosthesis knee to enable a final decision to be made whether the Applicant should have a knee. The family made the decision to pay for that rental, after which the NDIA provided funds. A similar issue occurred with respect to a vacuum dressing which reduced infection. The family engaged in weeks of discussion and decided they would fund it themselves. Hence, just because the family was determined to do what is best for the Applicant, ought not necessarily mean they should fund the cost.
The Applicant said that, in respect of criticism about the failure to engage the NDIA, when this began there was no NDIA to engage with. The Applicant referred to the agreed facts before the Tribunal and at the first meeting with NDIA where the quotes for the house renovations and prosthetic limbs were provided to the NDIA. They did all they could to engage.
The Applicant referred to the costs to NDIA in respect of those who might potentially have a desire for a lift and highlighted the underspend by NDIA in the preceding financial year. The purchase of the lift, it was submitted, was not likely to impact upon the fund or “open the flood gates” as submitted by the Respondent.
The Applicant submitted that the need to engage in the alterations quickly was influenced by the need for the daughter to commence her business, and the limited ability she had to fund the vacant property without generating an income from that business. They had to make a decision. They invited the NDIA to engage but it took over a year for the NDIA to make a decision, and with the benefit of hindsight, that delay was too long to fund the property without the business generating an income.
The Applicant said in response to the possible impact of COVID-19 and any possible economic recession, that she works in the health industry and, in periods of recession, health care workers continue to do well and are not impacted upon to the same extent as other professions. It would only be the change in Medicare funding for mental health consultations that would have any real impact on her business, which she said was performing very well.
CONSIDERATION
The Tribunal received written statements from the Applicant’s wife LH and daughter SH which detailed the Applicant’s health difficulties and the impact his disability had upon both he and LH. The Tribunal accepts their evidence. The Tribunal also received a written statement from the Applicant together with his oral evidence. The Applicant was an impressive witness and the Tribunal accepts his evidence.

The reports and opinions of Dr Cafaro were unchallenged. The reports and opinions expressed were prepared referable to a time when the Applicant was residing in his original home, which was unsuited to the Applicant’s disability needs. Dr Cafaro supported the Applicant’s change in residence to meet his disability requirements, which in turn, would support his rehabilitation.
The Tribunal accepts the opinion of Dr Cafaro that the Applicant would benefit from safe and appropriate housing that accommodated his wheelchair requirements, that would not be a hinderance on his recovery, and that would enable him, as much as possible, to conduct his life and achieve his desired goals. The Tribunal accepts that the facilities at his original home did not achieve that outcome and was having a detrimental effect on the Applicant and LH.
However, that opinion does not assist the Tribunal in determining whether the purchased lift was a reasonable and necessary support, in the circumstances of this matter.
The Applicant underwent bilateral below knee amputations in 2016 well before he engaged with the NDIS. The Tribunal accepts that his home was not suited to a person who had mobility issues requiring the use of Assistive Technology including an electric wheelchair. The Tribunal received photographs of the Applicant’s home depicting damage to walls and doorways caused by the Applicant’s wheelchair and walker.
The Tribunal also accepts that the suburb in which the Applicant lived was not suited to his disability, and he had difficulty navigating around the suburban streets in his wheelchair due to changes in terrain, positioning of lampposts and rubbish bins placed on the footpath. The Tribunal received photographs which corroborated that evidence.
The Tribunal also accepts that the Applicant’s fall from his wheelchair on a roadway in June 2016 and the injury to his stump, resulting in two weeks’ hospitalisation and 6 months’ confinement to a wheelchair, had a significant impact upon his confidence, independence and quality of life. He would not leave the house without assistance from another.
The Applicant’s disability also impacted upon his wife LH and the enjoyment of their home and garden. They discussed moving to the city to a property without a yard. The Tribunal accepts that, in early 2017, they asked their daughter SH to consider a dual-purpose property which provided the Applicant, LH and SH with a number of benefits to which I have referred in paragraph 8 above.
The settlement on the purchase of the Adelaide premises was on 15 September 2017 and immediately two architects were consulted, and subsequently one was engaged, to draw up plans for the dual-purpose occupancy, with SH’s business downstairs and the Applicant and LH’s residence upstairs. This again all took place before the Applicant became a participant in the NDIS on 5 February 2018.
The Tribunal does not have the benefit of the brief that was given to the architects to plan the dual-purpose occupancy of the building. The Tribunal is not in a position to determine, based upon the evidence, those factors that led to the decision to gut the premises, including to remove the existing staircase and reconfigure the internal structure to include a new staircase proximate to the front door, together with a lift, to give the Applicant access to the first-floor residence.
What is clear is that the downstairs footprint of the property included the car park and there was greater floor space available upstairs to provide accommodation for the Applicant and LH. The Tribunal does not know whether the loss of the car park or a portion of it was considered so as to enable the Applicant to occupy the ground floor. One car park was lost in the construction of the lift.
A decision was made to reconfigure the property and include a lift to provide first floor access for the Applicant before the Applicant became a participant in the NDIS. Further, proximate to the time the reconfiguration of the building was being considered and planned by the architect, and before those plans dated 25 January 2018[16] were produced, the Applicant must have been aware of the potential for him to become a participant in the NDIS. This must be so because, as indicated in the Agreed Chronology, on 12 December 2017 the Department of Health (SA) provided a letter of support for the Applicant’s participation in the NDIS[17]. The Applicant lodged an access request on 24 January 2018, the day before the date of the architect’s plans.
[16] T7, page 25.
[17] T6, pages 8 – 24.
The decisions relating to the reconfiguration of the Adelaide premises were progressed by the Applicant and his family to ensure installation of the lift within a required timeframe. He knew, and impliedly the family knew, that they would at least initially, have to fund the cost of the lift and seek reimbursement which was never guaranteed. The Tribunal is satisfied that the reconfiguration of the Adelaide premises, and in particular the installation of the lift, were not before the NDIA to consider; nor were they sufficiently engaged in any decision-making for the purpose of determining what were reasonable and necessary supports to be funded under the NDIS prior to the final decision being made to purchase and install a lift.
Having regard to the Agreed Chronology, approximately six weeks after the payment of the lift deposit and on 16 May 2018, the Applicant notified the LAC of his intention to apply for funding for a lift to be installed together with disability modifications at the new premises. The LAC advised that the NDIA would assign a “holding amount” to an NDIS plan pending provision of quotes to the NDIA.
The Tribunal accepts that thereafter there were delays in communication that occurred over a passage of time between the Applicant, LH and the NDIA and LCA. Those delays were particularly relevant to the provision of prosthetic limbs, renovations and the need for new lift quotes. The Agreed Chronology indicates that in September 2018, LH commenced weekly telephone calls and emails to the NDIA requesting information regarding the Applicant’s prosthetics and home modifications without receiving an adequate response. Those contacts continued until December 2019. The Tribunal accepts that evidence.
The Applicant, LH and SH all expressed their disappointment in the manner in which the NDIA and LCA engaged with them and the extraordinary delays that occasioned much of their dealings. Even though the NDIA was in its early stages of operation, the circumstances facing the Applicant in dealing with his disability, compounded by a further above knee amputation, engender much sympathy and they deserved a better level of communication. The fact that the NDIS was in its infancy does not excuse the absence of communication that plagued the Applicant’s engagement with the NDIS and those responsible for administering it. The Applicant withdrew a complaint made to the Ombudsman based on an assurance of a response which was never received. That was not good enough.
Yet the delays and loss of trust are not factors which go to the fundamental question of whether a lift was a reasonable and necessary support as contemplated in s 34(1) of the Act, and in particular s 34(1)(c) and (e), and the Operational Guidelines.
It is noteworthy that the Home Modification Guideline is directed to changes:
to the structure, layout or fittings of the participant’s home that are required to enable the participant to safely access and move around frequently used areas in their home as a result of their disability.
Plainly, that was not the case in this matter. This matter did not involve alterations to the Applicant’s current home. The Applicant had the option to make a request for current home modifications but the added difficulty, when using his prosthetic limbs or wheelchairs, and moving in and around his suburb with poor or unsuited infrastructures, explains the decision to move residence. The ability for the Applicant and LH to maintain the property and garden was an added burden. That decision to move residence was understandable and there is no suggestion that the decision was wrong.
The Applicant and his family decided, for their own lifestyle reasons, to purchase the particular property in the city, which property was to be for a dual purpose, namely, SH’s business requirements and a home for the Applicant and LH. The property, by its location, provided better infrastructure to enable the Applicant to move outdoors with assistive technology, have closer proximity to the hospital, and for he and LH to have greater access to family members including SH, their daughter-in-law and their grandchild. The decision to move residence is well understood in the circumstances of this matter. But it was the location of the property that provided those improvements for the Applicant; not the lift. The requirement of the lift only arose because of the lifestyle decision to locate the Applicant on the first floor of the Adelaide premises.
It is also relevant, in the circumstances of this matter, that the Applicant made a decision to leave his home, in which he had a proprietary interest, to reside at a premises, in which he and LH had a right of occupancy pursuant to a Granny Flat Agreement. That agreement granted them a life tenancy of the granny flat unless the Granny Flat Agreement is terminated “by 12 weeks’ written notice” whereupon the Applicant and SH will vacate the property.
The Applicant, LH and SH intend that the Applicant will occupy the granny flat for a significant period into the future. The Tribunal accepts that is their current intention and that the granny flat will become the Applicant’s home. However, the installation of a lift into a property in which the Applicant has no propriety interest, is a decision driven substantially by lifestyle issues, and is very different to an applicant who needs current home modifications to enable safe access and movement around frequently used areas of his or her home.
It was the choice of property and the decision that the Applicant, a double leg amputee, was to occupy the first floor of a two-storey premises that the Respondent submitted, and the Tribunal agrees, was surprising. This was a lifestyle choice and because the first floor provided a greater floor plan from which the Applicant and SH might configure their living space.
The occupational therapist reports were not challenged, and the Tribunal accepts the opinions expressed with respect to the suitability of the new staircase as it related to the Applicant and his disability. However, the occupational therapist provided her report substantially based on the final internal restructure of the property, including the new staircase which, by its position, rendered unsuitable the option of a platform stair lift, leaving the external lift as the only suitable method of enabling the Applicant to move between the ground and first floor. The occupational therapist did not report on whether the pre-existing staircase would have accommodated a platform stair lift or, if by some change of position of the new staircase, a platform stair lift would have been suitable; or indeed whether by such change in position, a chairlift might have been installed, which enabled safe transition from a wheelchair to the chairlift without risk of falling, including risk of falling at the top of the stairs.
The occupational therapist Ms Murphy, like the NDIA, was presented with a fate accompli from which to express an opinion about appropriate first floor access for the Applicant in the reconfigured premises.
Insofar as Ms Murphy opined that the stairlift was not suitable because of the positioning of the new staircase proximate to the front door, or that its position impacted upon the manoeuvrability of the wheelchair to permit the Applicant to perform a slide transfer to the stairlift seat, those issues were the consequence of the reconfiguration of the property and the decision to build an external lift. Insofar as the need to leave a wheelchair at the bottom of the stairs would impede access to others entering the premises, that too was also a consequence of that reconfiguration.
Ms Murphy’s opinion about the Applicant accessing his motor vehicle by manoeuvring around the block or the unsuitability of accessing the Applicant’s car by entering the business premises, was again, a consequence of the predetermined reconfiguration.
As the Guideline provides:
When complex and extensive home modifications are being considered, the NDIA may also fund oversight by a project manager or independent building certifier to ensure compliance of the modifications and a qualified and experienced Occupational Therapist to certify the effectiveness of the modifications to meet the participant’s goals and likely needs.
The Tribunal accepts the Applicant’s evidence, and that of SH, that decisions had to be made in relation to the internal restructure to ensure SH could occupy and use the business premises in a timely fashion. However, the Tribunal agrees with the Respondent’s submission that it was highly desirable, well-knowing that the Applicant intended to, and was recommended to be a participant in the NDIS, that the NDIA had the opportunity to be engaged at the earliest opportunity in the reconfiguration proposal, given the significance of the proposed alterations. In that way, the NDIA would have had the opportunity to be engaged in ensuring the effectiveness of the modifications to meet the participant’s goals having regard to s 34(1)(a) – (f) and in particular s 34(1) (c) and (e) of the Act.
Those factors are relevant in determining whether the installation of the lift represented value for money in accordance with s 34 (1) (c) of the Act, or whether the funding of the lift was something, in the circumstances of this matter, that was reasonably expected to be provided by the family in accordance with s 34 (1) (e) of the Act.
A property in the city had its benefits to which the Tribunal has already referred. But the Tribunal is not satisfied that the city was the only option for the purchase of such a property that provided appropriate residential requirements. It was the suitability of the property that assisted the Applicant to achieve his personal goals.
The decision to move to the city premises with joint occupancy, and the Applicant and LH to occupy the first floor in accordance with a Granny Flat Agreement, which necessitated the internal restructure of the building, and the installation of a lift, were decisions underpinned by lifestyle considerations.
The Tribunal does not criticise the Applicant for that decision. It was a lifestyle decision which the Applicant was perfectly entitled to make. Yet having made that decision, including the installation of a lift to enable the Applicant to access the accommodation, the cost of which outweighed the cost of the supports provided under the Applicant’s plan, it was not a decision that is properly regarded as a reasonable and necessary support to enable the Applicant to be empowered to achieve those outcomes considered in s 4(11) of the Act.
Section 4 of the Act further provides:
(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, to the full extent of their capacity.
However, s 4 of the Act does not obligate the NDIA to provide assistance to a person who has, by his or her lifestyle choices, placed him or herself in need of additional funding to enable those personal developments and social and economic participations to be achieved. If there was a reason for the Applicant, due to his disability, rather than lifestyle considerations, that necessitated him occupying the particular first floor apartment as opposed to other more suited accommodation, there may be a stronger argument that the funding of a lift might be considered as a reasonable and necessary support.
As the Tribunal has said, it was the property the Applicant intended to purchase, whether in the city or elsewhere, that provided him with the ability to achieve his personal goals, and not the installation of the lift. The lift became necessary because of the choice of property and the Applicant and LH’s occupation of the first floor.
In the circumstances of this matter the Tribunal is not satisfied that the installation of a lift represents value for money. The Tribunal agrees with the Respondent’s submission that this concept requires a balancing process and that a sense of proportionality is involved. A platform lift is one such consideration.
The decision to reposition the staircase proximate to the front door, for reasons that are not clear on the evidence, effectively removed the opportunity for the Tribunal to engage in a balancing process in the absence of alternative assistive technology solutions. The Tribunal infers that the decision about the position of the new staircase was in part because of the decision to install a lift. Had a lift not been predetermined the evidence does not indicate, whether by repositioning of the new staircase, a platform stair lift could have been an option. The position of the new staircase also contributed to a stair chair lift being unsuitable because of difficulty in moving from a wheelchair to a chair lift seat and vice versa. It is not clear what other options may have been available had the new staircase been otherwise positioned in relation to the front door.
That balancing process also requires consideration of the Granny Flat Agreement which permitted the Applicant and his wife to occupy the first-floor apartment. The Tribunal agrees with the Respondent that a number of scenarios might arise which may result in the termination of that agreement. One example is if the owner company ceased trading. SH and her partner, as company directors, may have no option but to then realise the asset, potentially requiring the Applicant and LH to vacate the property.
In the circumstances of this matter, it is not value for money to install a lift at significant cost to the taxpayer in circumstances where the Applicant has no proprietary interest in the property. However well-intentioned the family members were in granting a life tenancy in the property to the Applicant, when balanced with the risk of termination of the Granny Flat Agreement, the installation of the lift does not represent value for money for the purposes of s 34(1)(c) of the Act.
CONCLUSION
The decisions that underpinned the purchase of the particular city property, the joint occupancy with the Applicant occupying the first floor, the reconfiguration of the property and the installation of the lift were lifestyle decisions. Those lifestyle decisions were made by a close and loving family who had undergone much difficulty in navigating the NDIS system and who were determined to achieve what they genuinely believed was best for the Applicant given his significant disability.
Once the decision was made that the Applicant would occupy the first floor, the purchased property, in the absence of major modification, could not be regarded as one that provided, in the words of Dr Cafaro, safe and appropriate housing that enabled the Applicant to conduct his normal life in an environment which was accessible to a heavily disabled person requiring full time wheelchair use.
The installation of a lift was not in and of itself, directly relevant to the Applicant’s goals and aspirations, but was relevant to the lifestyle choices that the family then made to enable the Applicant to occupy and use the first-floor accommodation. As the Respondent submitted, this was an extravagance that was, pursuant to s 34(1)(e), in the circumstances of this matter, reasonable to expect the family to provide.
The Tribunal does not criticise the Applicant and his family for that decision. They were fortunate to be able to make the lifestyle choices that they did, and to their credit. Nor does this mean that, in all circumstances, the funding of a lift will never be a reasonable and necessary support. The Applicant provided the Tribunal with an example where such funding had been granted. Each matter will turn on its own facts. However, in this matter those lifestyle decisions to which the Tribunal has referred, including the installation of a lift, guided the Applicant and his family and accordingly the cost of installing a lift at the new premises was not a reasonable and necessary support.

The Guidelines provide that the NDIS will generally not fund capital building additions such as lifts or inclinators to allow access to multiple levels of a home.
The Guidelines are not mandatory and there may be occasions when, in the factual circumstances of a matter, such funding will be a reasonable and necessary support. However, entering into a Granny Flat Agreement to occupy the first floor of a property, purchased by a company in which the participant’s daughter and partner are directors, and in which property capital building works (including a lift) were undertaken and based on lifestyle considerations, means that the cost of the lift, in the circumstances of this matters, is not properly regarded as a reasonable and necessary support to be met by the NDIS.
The Tribunal agrees with the Respondent’s submission that such major capital building constructions driven by lifestyle choices, whether it be a lift or other building works would, if funded by the NDIS, potentially give rise to the real risk of creating a significant imposition on the NDIS. The NDIS expenditure must be for reasonable and necessary supports consequent upon, and relevant to, the participant’s disability. This matter involved the installation and cost of a lift that was consequent upon and relevant to the participant’s lifestyle choice.
The family fell in love with the property, irrespective of the first-floor access issues. They decided to purchase it and install a lift well-knowing the risk that there may be no reimbursement of the cost. The Tribunal repeats, this is not a criticism of the Applicant or his family. This was a loving family determined to do everything possible to enhance the enjoyment of life for all concerned and, in particular, the Applicant who has undergone significant physical and psychological trauma in recent years. However, in the circumstances of this matter the cost of a lift was not a reasonable and necessary support to be met by the NDIS and is a cost that was reasonable to expect the family to provide.
The criteria in subsection 34 (1) are cumulative. As the Tribunal has concluded that the criterion in subsection 34 (1) (c) is not satisfied, it is not strictly necessary to address any of the other criteria. However, the Tribunal indicates that, for the reasons expressed above, the cost of the lift this was an expense that was reasonable to expect the family to meet in accordance with subsection 34 (1) (e) of the Act.
DECISION
The decision under review is affirmed.

I certify that the preceding one hundred and seventy-one (171) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

....................[SGND]................................
Administrative Assistant Legal

Date of hearing:

31 August 2020

Advocate for the Applicant:

SH, Daughter

Counsel for the Respondent:

Mr Paul d’Assumpcao, National Disability Insurance Agency

Dated: 26 February 2021

Date of hearing:	31 August 2020
Advocate for the Applicant:	SH, Daughter
Counsel for the Respondent:	Mr Paul d’Assumpcao, National Disability Insurance Agency