Mante and National Disability Insurance Agency
[2024] AATA 3399
•25 September 2024
Mante and National Disability Insurance Agency [2024] AATA 3399 (25 September 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2023/2788
Re:Jennifer Mante
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member A. C. Williams
Date:25 September 2024
Place:Hobart
Pursuant to s 43(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) the reviewable decision made by the National Disability Insurance Agency on 11 January 2023 is varied as follows:
i.Ms Mante is to receive funding for the annual cost of gym membership with Peninsula Aquatic Recreation Centre.
..................................[signed]......................................
Member A. C. Williams
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – review of statement of participant supports – reasonable and necessary supports – applicant sought review of statement of supports to allow for funding of a gym membership – decision under review varied
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Cases
Warwick v National Disability Insurance Agency [2024] FCA 616
Secondary Materials
National Disability Insurance Scheme Operational Guidelines – Planning (Chapter 10)
REASONS FOR DECISION
Member A. C. Williams
25 September 2024
INTRODUCTION
Ms Jennifer Mante is a 49-year-old woman who lives in Melbourne. She has been diagnosed with Major Depressive Disorder (MDD) and Generalised Anxiety Order.
In July 2021 she was found to be eligible for the National Disability Insurance Scheme (NDIS).
On 11 January 2023 a plan (‘Plan’) was entered into between Ms Mante and the National Disability Insurance Agency (‘NDIA’) under the s 33 of the National Disability Support Scheme Act (Cth) (‘the Act’). The Plan succeeded the previous two plans. The Plan covered the period between 11 January 2023 and 11 January 2024 (‘the original decision’).
A further plan was made on 7 March 2024.
Ms Mante’s NDIS plan of 11 January 2023 provided total funding of $61,323.86 across the following categories of support:
Core Supports budget General Funding inclusive of:
a) funding for low-cost assistive technology (AT) and minor repairs associated with the assistive technology;
b) assistance with daily activities; and
c) assistance with social & community participation.
$34,978.88
Transport $ 1,784.00
Total $36,782.88 Capacity Building Supports Budget
Improved Life Choices
(CB Choice & Control)$ 1,485.75 Improved Daily Living
$13,721.23 Support Coordination
(100 hours of Psychosocial Recovery Coach)$ 9,334.00 Total $24,540.98
Ms Mante sought an internal review of the statement of participant supports in the Plan by the NDIA. In her request for review, Ms Mante sought the inclusion of weekly exercise physiology sessions, treatment with Transcranial Magnetic Stimulation (‘TMS’), and the cost of a gym membership in her plan.
At the outset it should be noted that Ms Mante’s request for weekly exercise physiology sessions was subsequently agreed to by the NDIA and was added to her existing plan by way of a Section 42C agreement between the parties in February 2024. Ms Mante also withdrew her request for funding for TMS.
Therefore, at the time of the hearing, the only remaining issue before the Tribunal related to the potential inclusion of the cost of a gym membership. For that reason, this will be the only issue referred to and addressed in this decision.
The NDIA conducted that internal review and provided its decision on 12 April 2023. That review upheld the original decision to decline those additional requested supports. In relation to the requested gym membership, the internal review officer found that Ms Mante had not established that the requested support was not a day to day living cost under section 34(1)(d) of the Act or that it represented value for money under section 34(1)(c) of the Act.
Ms Mante then applied for an independent review by this Tribunal on 24 April 2023. In her application she stated:
·that the supports the NDIA had refused had been recommended by all her health professionals over several years with supporting evidence and reports provided;
·that she had previously been provided by the NDIA (other than TMS) but the NDIA kept changing her plan and thereby were not providing consistent care;
·that her funding would not increase overall, but be distributed differently across her plan;
·the supports are not covered by any other group or government body; and,
·the requested supports had repeatedly demonstrated significant improvements and sustainable benefits to Ms Mante’s physical and psychosocial health, increased her social interaction, and increased her functional capacity. These benefits had been demonstrated over several years.[1]
[1] ‘Joint Tender Bundle’ Submission in Re Mante and National Disability Insurance Agency, (‘JTB’) 110.
A hearing took place on 14 August 2024. Ms Mante attended by video link and was supported by Mr Johnee Auvale of Intrinsic Support Services. The Agency was represented by Ms Ruth Hamnett of Counsel, instructed by Ms Esther Chen of Makinson d’Apice Lawyers.
Ms Mante and Ms Mante’s treating Exercise Physiologist (‘EP’), Mr Jesse Murphy gave oral evidence at the hearing.
For the reasons set out in this decision, the Tribunal sets aside the decision under review, and substitutes a decision approving the inclusion of the following additional participant supports for Ms Mante on the basis that they are reasonable and necessary supports within the meaning of s 34 of the Act:
(i)An annual gym membership with Peninsula Aquatic Recreation Centre for Ms Mante.
Ms Mante’s Plan and stated goals
Section 33 of the Act specifies matters that must be included in a participant’s plan. They include the participant’s statement of goals and aspirations prepared by the participant, and a statement of participant supports, prepared with the participant and approved by the CEO, that specifies both the general supports that will be provided to or in relation to the participant by the Agency, and the reasonable and necessary supports that will be funded under the NDIS pursuant to section 34 of the Act. The Support Rules were made for the purposes of sections 33 and 34 of the Act.
The NDIS plan approved on 11 January 2023, which is the subject of this review, specified the following “goals I want to work toward during this plan”.
·I need to improve my skills to be as independent as possible to live with my husband in my family home.
·I want to meet new people on the community and develop meaningful friendships.
·I would like to work part time.
·I would like to improve and maintain my mental health.
·I want to improve my physical health by increasing strength mobility, flexibility and manage pain.[2]
[2] Ibid 195–196.
Issue for determination
In this matter, there is a single issue to determine, namely whether the cost of a gym membership is a reasonable and necessary support under the Act.
In this regard, Ms Mante has an existing membership at the Peninsula Aquatic Recreation Centre (‘PARC’) at Frankston. PARC has provided a written quote for the cost of an annual membership in the sum of $1,719 although Ms Mante, in her accompanying email, noted that this did not represent the concessional amount she is currently paying.
In this regard the most recent indication of the anticipated annual cost is $1,171.70.[3] Ms Mante, in the email accompanying this quote, noted that this amount did not reflect a discount she believed she was eligible to receive.
[3] Undated quote provided by Peninsula Aquatic Recreation Centre received 14 August 2024.
LEGISLATIVE FRAMEWORK
Section 34(1) of the Act provides as follows:
1For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)The support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)The support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)The support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)The support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)The funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and community to provide;
(f)The support is most appropriately funded or provided through the National Disability Insurance Scheme (NDIS), and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) As part of a universal service obligation; or
(ii) In accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability;
Section 35 of the Act allows for NDIS rules to be prescribed establishing a method for assessing, or the criteria for deciding, the reasonable and necessary supports or general supports that will be funded or provided, or for declaring particular reasonable and necessary supports or general supports to be provided or funded, either generally or for prescribed participants. Rules have been prescribed and are in force, being the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (‘Rules’). The Tribunal also notes the Operational Guidelines – Planning (Chapter 10) published by the NDIA on 13 September 2016.
Part 5 of the Supports Rules sets out general criteria for supports, and supports that will not be funded or provided:
General criteria for supports
5.1 A support will not be provided or funded under the NDIS if:(a) it is likely to cause harm to the participant or pose a risk to others; or
(a)it is not related to the participant’s disability; or
(b)it duplicates other supports delivered under alternative funding through the NDIS; or
(c)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a)additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b)costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
Supports that will not be funded or provided
5.3 The following supports will not be provided or funded under the NDIS:
(a)a support the provision of which would be contrary to:
(i) a law of the Commonwealth; or
(ii) a law of the State or Territory in which the support would be provided;
(b)a support that consists of income replacement.
THE PARTIES’ POSITIONS
Respondent
The Respondent’s position was outlined in its Statement of Facts, Issues and Contentions (‘SoFIC’) dated 22 March 2024.
The Agency submitted that the requested funding for a gym membership was not a reasonable and necessary support pursuant to section 34(1) of the Act and the Support Rules. In this regard the Agency submitted that the cost of gym membership was a day-to day living cost which, according to Rule 5.1(d) of the Support Rules, is a support which will not be funded.[4]
[4] JTB (n 1) 98–99.
It further submitted, that it did not appear that the requested support appeared to have a direct link to Ms Mante’s disability (Major Depressive Disorder (MDD)) and amounted to a preference rather than a direct need for support relating to her impairments.[5]
[5] Ibid 99.
The third basis for its refusal was that the requested support did not represent value for money as required by section 34(1)(d) of the Act.
In this regard it pointed out some apparent contradictions in the evidence Ms Mante submitted concerning the social setting of the community gym and the times she attended where there would be few other people using the facility. The Respondent noted that Ms Mante was currently already funded with five hours per week of assistance with Social Community and Civic Participation which serves the same purpose of integrating her into the community.
The Respondent further submitted that the request for a gym membership would not be value for money when having regard to the existing supports in her plan.
The submission also noted that in Ms Mante’s evidence, it was recorded that when she has bad days, she regularly cancels her appointments and struggles to stay focussed while speaking with others. She will become very withdrawn, stop leaving the house and cannot manage self-care.
It also referred to Mr Murphy’s evidence where he indicated that Ms Mante considered that exercise physiology sessions with him were important to her as she would be more likely to exercise with him than with a support worker or going to the gym on her own. Mr Murphy reported that her “motivational levels are highly influenced by her anxiety…and that she required some nurturing and some motivational words to build her up.”[6]
[6] JTB (n 1) 36.
The Agency submitted that because of this, there appeared to be a real risk that without the proper motivation to exercise, it would be likely in the event the requested support was funded, that any gym membership that is funded for the Applicant would either not be utilised or underutilised.[7]
[7] JTB (n 1) 100.
Applicant
Ms Mante for her part asserts that the requested gym membership will assist her in attaining her stated goals in improving her physical and mental health, gaining greater independence, and being better able to access the community and make new friends.
Mr Murphy’s report indicates that due to her MDD, Ms Mante experiences persistent low mood, low motivation and self-esteem, and her social anxiety prevents her from leaving her home. [8]
[8] JTB (n 1) 19.
She has a history of musculoskeletal injuries including:
·Bilateral hip bursitis (right hip worse than the left),
·Left shoulder injury,
·Right ankle instability,
·Right knee pain, and,
·Sciatica symptoms
She submitted that working with her exercise physiologist was essential in keeping to a routine, getting her out of her house, keeping active which is essential for her mental health and sense of self-esteem. It was also necessary to address her social anxiety as it exposed her to social aspects within a controlled and sustainable environment.[9]
[9] JTB (n 1) 29.
Her Exercise Physiologist, (Mr Jesse Murphy) can motivate her to do arrange of activities including attending the local gym and has helped her identify machines and equipment suitable for her. Mr Murphy is also able to identify her mood, energy and pain levels and can therefore prescribe appropriate exercise and intensity levels at the time.[10]
[10] Ibid 30.
Evidence before the Tribunal
On 22 December 2022, the T-documents were provided by the respondent to the Applicant and the tribunal. The T-documents include the following relevant evidence:
(a)T1B: Letter from Tegan Pinese, Occupational Therapist dated 12 March 2021.
(b)T1BA: General Assistive Technology assessment completed by Tegan Pinese on 4 March 2021, attaching a letter from Ms Bennedick, Swimming Instructor, dated 6 March 2021.
(c)T1C: Report from Tegan Pinese, Occupational Therapist, dated 4 April 2022 (Produced at T10).
(d)T1D: Letter from Tegan Pinese, Occupational Therapist, dated 19 May 2022.
(e)T1E: Letter from Alexander Piva, Physiotherapist, dated 4 April 2022.
(f)T3: Report from Candice Chesterfield, Support Worker, dated 20 May 2020.
(g)T4: Report from Emma Hancox, Occupational Therapist, dated 18 November 2020.
(h)T5: Letter from Laurel Eoh, Consultant Paediatrician, dated 26 November 2020.
(i)T6: Letter from Nicole Bennedick, Swimming Techer, dated 6 March 2021.
(j)T7: Report from Christine Schultz, Support Coordinator, dated 24 February 2022.
(k)T8: Letter from Tegan Pinese, Occupational Therapist, dated 4 April 2022.
(l)T9: Quote from Greg Badcock dated 4 April 2022 for the supply and installation of a “Solar Install Base w/Pump” at a cost of $7,337.70 (including GST).
(m)T12: Plan Review Report, Christine Schultz, Support Coordinator, dated 23 May 2022.
(n)T13: Letter from Precious Luis, Occupational Therapist dated June 2022.
These T-Documents were contained within the Joint Tender Bundle provided to the Tribunal which was admitted into evidence as Exhibit 1.
An email answering further questions and a weekly schedule dated 13 August 2024 was entered into evidence as Exhibit 2 and a NDIS Plan dated 7 March 2024 was entered as Exhibit 3.
EVIDENCE IN SUPPORT OF THE APPLICANT’S POSTION
Ms Mante’s response to targeted questions
Ms Mante provided a response to four targeted questions which primarily addressed her employment.
In my view, while the questions and Ms Mante’s responses have a certain degree of relevance, they do not appear to directly address the issue before the Tribunal.
Mr Murphy’s response to targeted questions[11]
[11] JTB (n 1) 33–37.
Mr Murphy stated that he had suggested Ms Mante commence doing exercise at the gym. Previously they had been doing sessions in a local park as well as at a private gym he has access to.
Both these options have certain limitations. The sessions in the park could only utilise limited equipment such as using body weight, lighter weights and resistance bands.
The private gym also had a limited amount of equipment such as free weights, treadmills and some pin-loaded machines. The idea of using a larger gym was to gain access to a wider range of equipment to help her achieve her goals in a community setting. The gym Ms Mante chose offers a variety of classes which the private gym cannot provide. Having a gym membership gives Ms Mante access to a range of options that have been recommended to assist her with her anxiety and depression and prevent social isolation.
After Ms Mante’s funding was withdrawn Mr Murphy has only had limited contact with her. She has told him she has not been following her home exercise program due to a lack of motivation.
Mr Murphy’s main role as an Exercise Physiologist is to assess the needs of an individual in relation to their condition or injury and develop exercise intervention that addresses both their personal and clinical goals based on best practice. In Ms Mante’s case, they worked through many small steps and conversations where Mr Murphy had to motivate her to attend a gym. He said she enjoys some aspects of exercise, but most of all she enjoys it due to how she feels after exercise sessions.
He supports Ms Mante in meeting her at the gym before going in to assist with any potential anxiety related stress (which can be different from day to day) and then go into the gym to complete a program. His role as an EP is to adapt to how the client presents at each session in which changes can then be made to a program.
At the time of providing his responses, he was not seeing Ms Mante for face-to-face sessions.
He wrote that an increase to three sessions would benefit Ms Mante in her current circumstances, as three sessions per fortnight was not enough. It was insufficient to help steer her towards independence and was very difficult to keep motivating her frequently when she was struggling, as was building a consistent routine. More frequent sessions for the short term would help to build the routine and help manage her anxiety when initially getting back into sessions. It is evident that this has worked in the past.
He noted that Ms Mante has acknowledged that having exercise physiologist appointments almost forces her to attend the session. In some cases when her anxiety is high, it has taken them some time to overcome the barrier of getting her to the session, but due to having that commitment she has been able to. Mr Murphy observed that once Ms Mante has finished the session, she has a follow-on effect whereby she feels able to then engage in the community e.g., go grocery shopping or have breakfast somewhere. Ms Mante stated that if her appointment was with a support worker, at least in the early stages of starting back at the gym, she would not have made it to the gym as there was no commitment to going, and that she would likely have stayed at home when she was experiencing high anxiety.
When asked how long he considered three exercise physiologist sessions would be required and if could they be tapered off over time, Mr Murphy stated that it was quite difficult to answer, as timeframes are not easy to set when dealing with a mental health client like they are for a musculoskeletal injury. He stated that he believed the exercise physiology support could be tapered off in the future, as it is always a goal to do so. He said that if we consider the previous experience/timeline, it could be approximately six to nine months before tapering off could be introduced. This would obviously depend on how Ms Mante was tracking mentally. He also said consistent TMS in conjunction with exercise has been shown to help her most effectively.
The Agency asked Mr Murphy whether the primary purpose of the request for increased exercise physiology hours was related to her disability and, if so, how was it related. The Agency asked if Ms Mante’s level of motivation could be addressed by other means.
In response, Mr Murphy stated that the requested increase in hours was related to Ms Mante’s disability for multiple reasons. Firstly, a support worker is not trained to prescribe exercise to someone at all and is illegal to do this without them having appropriate qualifications. Additionally, exercise physiologists are trained to connect with different personalities where use of language becomes important in a scenario, for example dealing with a client such as Ms Mante who has depression and anxiety. This is because there is a fine line between building rapport with a client, motivating them, being understanding and empathising with a client, as well as giving advice to overcome certain anxieties or emotions and/or actions that have stemmed from the condition. This is a complex dynamic that a support worker is not trained to handle and would pose a high risk to triggering a client such as Ms Mante.
Secondly, his job is to prescribe exercise to individuals, and Ms Mante has stated multiple times that exercise, and Transcranial Magnetic Stimulation are the two things that have helped her the most. She has told him that although she does not necessarily enjoy exercise, she engages with it to help her mental health. He stated that there is abundant evidence to support the positive impact that exercise has on people, and there are many ways to exercise in which these different methods can have different outcomes. For example, different scales identify whether a participant has improved or regressed in their mental health depending upon the type and intensity of the exercise session. Thirdly, he has developed some interventions over time to try help Ms Mante stay motivated and work towards her goals such as checklists, and early session times so that she does not spend the day thinking about the impending session.
Regarding alternative ways of motivating Ms Mante, he stated that when Ms Mante has a session booked with him, it is for her a commitment to attend an appointment, whereas if an appointment is with a support worker, then going to the gym for Ms Mante becomes a choice rather than a commitment. He would then, the next time he saw her, assess Ms Mante’s motivation levels. He stated that Ms Mante’s motivational levels are highly influenced by her anxiety, and what he intended to address in his report, was that Ms Mante requires nurturing, and motivational words to build her up, much like helping any individual through a stressful situation where they are potentially not thinking straight.
Mr Murphy referred to his previous report where he stated that he believed Ms Mante should, within 12 months, be able to attend the gym by herself or at least with a support worker. The Agency asked if he still held that view.
In response, Mr Murphy said his view is that he will attempt to explore independence with all his clients. In Ms Mante’s case, her mental health was getting to a really good place which took a turn for the worse with the death of her husband. He noted that he had not seen her for some time, and therefore considered it would take some consistent work over a similar period to have her return to the gym. Ms Mante had become comfortable in that environment, and consequently comfortable working with someone other than an exercise physiologist. However, while his focus was on improving Ms Mante’s independence, it would take time for her to develop rapport with someone else, which, in his view, should be a female support worker.
Mr Murphy was asked about Ms Mante’s progress with exercise since the death of her husband.
In response, Mr Murphy stated that he considered she had held up well after her husband’s passing. She maintained her exercise schedule; however she did cancel a little more frequently due to her not feeling in the right headspace. She did tell him that the exercise sessions were a “coping mechanism” for her.
Finally, Mr Murphy was asked about Ms Mante’s interaction with others at the gym.
In response, he said that when Ms Mante was at her best mentally, she attended a yoga class independently. He has observed her frequently having short conversations and interactions with others at the gym.
Ms Mante’s evidence at hearing
Ms Mante was asked a series of questions by Ms Hamnett.
She answered several opening questions concerning her current employment in her father’s business where she works as an Accounts Clerk. She said that her anxiety levels are generally okay when she is in a consistent and predictable environment.
Earlier this year, she experienced a major depressive episode after she dislocated her shoulder. In this regard, she said that that it was these less sad events (illness and surgery), as opposed to the death of her husband, that initiated a major depressive episode. The triggers for her were the onset of illness such as the flu or an injury such as a dislocated shoulder and bursitis which brought on her most recent episode. The longest episode she experienced was 12 months.
The shoulder injury was caused by a fall. For about three months after that, she was unable to exercise, although Mr Murphy was able to accompany her on walks.
She said that she found regular exercise was beneficial in addressing her anxiety symptoms and minimised her reliance upon medication.
Ms Hamnett put to Ms Mante that the cost of a gym membership was an expense most Australians would consider to be a day-to-day expense. Ms Mante disagreed with that proposition as it applied to her situation. Both her exercise physiologist and her psychologist recommended that she have regular exercise and would not have contemplated taking out a gym membership otherwise. She said that her medications cause severe side effects and having regular exercise is one of the few things that does not have any side effects. For example, if she takes Valium, she will experience a decrease in her mood the next day and have to stay in bed.
The principal reason she wants to exercise is the improvement in her mood rather than anything primarily physical. She said that she would come to a session in a poor mood and afterwards notice an immediate improvement in her mental state, and this encourages her to keep up with exercise.
She said that being forced to complete an exercise session was important because without feeling compelled, she would just stay in bed.
In summary, she stated that she did not consider the cost of the gym as a day-to-day expense, and that having sessions there is directly related to her disability, as well as being more cost effective.
Ms Hamnett asked Ms Mante if she could identify where her psychologist had recommended she take out gym membership. In response, Ms Mante said that she was unable to exercise outdoors when it is raining or very hot. She does not want to have people come to her home for her exercise.
Ms Hamnett noted that Ms Mante’s psychologist indicated that she needed 1:1 support when undertaking sessions with an exercise physiologist but does not mention gym membership.
In response, Ms Mante said that the initial reason why she had taken out a membership was because she was approved for yoga sessions in her then NDIS plan, and that Jesse suggested the gym because it offered a range of exercise options including swimming, yoga and other classes, with a sauna which she considers reduces her cortisol levels.
Ms Mante said that a gym membership gave her the option of exercising when outside was not possible, and for the cost of $20 per week she considered it is cost effective. For that amount she can do as many classes as she is able and compared favourably to the $90 she previously spent on the yoga studio for three classes per week.
Ms Hamnett said in response that her understanding was that Ms Mante’s plan did not include funding for yoga. Ms Mante said that it had been funded in her first plan.
She currently has a gym membership which she has paid herself after being told by the Agency they would not cover this expense.
Her usual routine at the gym was to get there five minutes before with her support worker. She would do weight and balance exercises to manage her knee and hip, and exercises to recover her (frozen) shoulder. If she cannot ‘deal’ with the gym and it’s not raining, then she would go for a walk.
Ms Hamnett asked Ms Mante about the private gym which Mr Murphy sometime uses. Ms Mante said she has not been there for some time. It is further away, and the support workers are unable to use it as they are not covered by insurance there.
When asked if she was using her gym sessions for her physical conditions which are not covered by her NDIS, Ms Mante said that her physical and mental health are linked. Her funded disability is her depression, but that condition is improved by her having regular exercise.
In terms of her cortisol levels, when it was noted by Ms Hamnett that issue affects most people, Ms Mante said that her cortisol levels are consistently high and this increases her level of anxiety, and she had found using the sauna helped. In any event, since covid she stopped using the sauna as she is concerned that if she got covid it could trigger another depressive episode.
Using the gym does not have the same problem as there is space to spread out.
When asked by Ms Hamnett if she agreed that maintaining one’s health was a general responsibility for all Australians, Ms Mante agreed this was the case, however her primary reason for exercise was maintaining her mental health. It does address some of the pain associated with some of her physical illnesses. She attends the gym as the exercise releases endorphins which improves her mood.
Ms Hamnett asked Ms Mante how frequently she exercises, and whether she could attend the gym on her own. In reply she said she does one session per week with Jesse, and two with a support worker. Her preference would be for Jesse to accompany her at all three sessions as she relies upon him more and he is flexible in how he deals with her mood on any given day. However, there is no funding currently to do this. She is unable to do her sessions on her own.
She had cancelled her membership earlier in the year when she was injured but recommenced in about March or April 2024.
Ms Mante also said that she has a financial incentive to attend her gym sessions with both Mr Murphy and the support worker, even if she may initially feel unable to do so as in the event, she was to cancel she would still have to pay them.
She confirmed that on average she attends the gym three times per week. She cannot do it on her own so she will have Mr Murphy or a support worker with her. Jesse would do one session and the usual support worker (Paris) will do the other two. Mr Murphy, as an exercise physiologist, is responsible for developing an exercise plan that Paris will follow.
There followed in Ms Mante’s evidence a discussion on the funding of these supports however, to my mind, this discussion was not relevant to the central issue before me.
Ms Hamnett asked Ms Mante if she could get the same benefits from having her exercise sessions at home. In reply she said that while she may have an occasional session at home with Paris, her preference is to go to the gym because it provides her with access to the community. She said that the gym is a more consistent environment, and it has more exercise options including the possibility of doing group sessions in the future.
In terms of what social interaction she has at the gym, she said that would depend upon how she was feeling on the day. She may leave if Mr Murphy is late getting there, or it is too noisy. She feels going to the gym gives her access to the community, as she does not like people in her home. She said that at times she does not like going to the gym but knows that it is good for her.
She knows the names of some of the people at the gym and can have a conversation with them if she is feeling up to it. She said that last year she had done a couple of group classes with Paris.
Ms Hamnettt asked if Ms Mante could use her community access funding to do other things. She said that she could not think of anything else she could do and, in any event, does not have the time.
Mr Murphy’s evidence
Mr Murphy provided his evidence after the lunch adjournment.
He advised that his role was to assess an individual’s function, injuries or disability, and then prepare an individualised exercise program for a participant to follow. The goal with Ms Mante is to assist her towards achieving independence. This has proven difficult with her due to her depressive disorder as her mood can vary greatly even within the space of a session.
There have been occasions when he was late or the music in the gym has been too loud, and Ms Mante could not continue, and they would go for a walk instead. This has happened about three or four times in the last six months.
Ms Mante had previous physical injuries in the past and it is important for her to keep flexible. He will generally meet with her at the beginning of the week and have the Support worker conduct the additional sessions. He will fill in, charging at a support worker rate if the support worker is on leave.
He said that the benefit of using the gym, as opposed to elsewhere, is that the machines available at the gym can apply a greater load and will over time develop greater strength. The benefit of using the gym is that it keeps her on top of her injuries.
When asked if he was aware whether Ms Mante’s psychologist has recommended that Ms Mante take out a gym membership, he said he was aware that the Psychologist recommended exercise, but not exercise at the gym specifically.
When asked if Ms Mante was dependent upon him, Mr Murphy said she was not dependent upon him individually, but does rely on having someone with her. She does not necessarily like going to the gym, but knows it benefits her. She has difficulty exercising independently at home.
Mr Murphy was asked about the private gym he has access to. He said that he does not do sessions with Ms Mante there, because it does not have the added benefit of it being with others in the community which assists with her social anxiety.
The gym’s other benefit is that it addresses Ms Mante’s pain levels and how they in turn affect her mental health. He did not see maintaining an exercise routine at home would improve these issues over time.
Ms Hamnett drew Mr Murphy’s attention to his responses to the targeted questions the Agency sent him. He was asked about the relative cost effectiveness of a gym membership for Ms Mante. In response, he said that it was more cost effective as opposed to therapies such as physiotherapy, because the membership offered more options such as yoga, a sauna and group classes. He believed the annual cost of the gym is $1,700.
He said that for the moment at least he, or a support worker, needed to attend the gym with Ms Mante as she was not able to do so independently, although he would ‘love it if she could’. Having either himself or a support worker accompany her, gives her both motivation and a financial reason to attend the gym. He believed she would not currently go to the gym without their support.
Submissions
The Respondent, in their closing submissions, maintained that there was insufficient evidence to establish that it was a reasonable and necessary.
In particular, the Respondent submitted that:
·there was a lack of probative evidence that the cost of funding a gym membership was reasonable and necessary when there were other alternatives, including exercise at her home, at the private gym that Mr Murphy has access, outdoors, or through existing funded supports such as physiotherapy.
·the benefits Ms Mante receives from attending the gym are primarily physical (i.e. enhanced strength) rather than her mental health and there is no probative evidence suggesting a connection between her mental health and a gym membership specifically. In this regard, there was a lack of evidence from Ms Mante’s occupational therapist, psychologist and psychiatrist addressing this.
·while there are clear benefits to any person’s physical and mental health from engaging in regular exercise, this is a personal responsibility of every Australian. The current funding for exercise physiology will cover sessions in Ms Mante’s home, outdoor park sessions, and anywhere her exercise physiologist deems appropriate.
·accessing other facilities, such as using a sauna and group fitness, should therefore be at Ms Mante’s expense.
·Ms Mante had not demonstrated that the cost of a gym membership represented value for money.
·while it was clear that Ms Mante would benefit from engaging in community participation activities, there was already currently available in her plan funding for five hours per week for social and community participation.
Again, in relation to the issue of whether the requested gym membership is reasonable and necessary and if it should be considered a day-to-day living expense, Ms Hamnett referred to the recent decision of Warwick v National Disability Insurance Agency,[12] which she submitted took an overly narrow interpretation of what constituted day-to-day living costs. She further submitted, as this case was now the subject of an appeal by the Respondent, the Tribunal should not follow this decision, or instead give it little weight. In any event, the Respondent’s contention was that the expense was not directly related to Ms Mante’s disability.
[12] [2024] FCA 616.
Mr Auvale also provided some closing submissions.
In Mr Auvale’s submission:
·The cost of a gym membership is not a day-to-day expense. It is not the same as a utility bill and not every person can afford a gym membership.
·The cost of the gym membership represented value for money when considered against other suggested therapies.
·It was essential to take into account Ms Mante’s right to exercise choice and control in her choices as that principle is enshrined in the Act.
·There was clear evidence of the benefits of Ms Mante exercising in a gym setting. She has given evidence why she prefers the gym setting to have her exercise and that having sessions with Mr Murphy or a support worker keeps her accountable.
·All Ms Mante’s therapists consider that Ms Mante benefits from having regular exercise, and Mr Murphy considers that she would get further benefits of having some of her exercise sessions conducted in a gym environment.
CONSIDERATION
As noted above, based upon the parties’ respective positions, to determine whether the requested funding for an annual gym membership is reasonable and necessary, I will need to address and make findings on the following separate issues:
·Is the cost of gym membership directly related to Ms Mante’s disability?
·Is the cost of gym membership a day-to-day expense?
·Does the cost of gym membership represent value for money?
Is the cost of gym membership directly related to Ms Mante’s disability?
Ms Mante’s disabilities are primarily psycho-social in nature, namely a Major Depressive Disorder and (MDD) and Generalised Anxiety Disorder (GAD). She was granted access to the scheme for her MDD.
Ms Mante’s evidence was, in general terms, that a significant factor in the onset of an episode of MDD was either ill-health or a physical injury as opposed to negative life events.
I note that the medical evidence provided by Ms Mante’s psychologist and psychiatrist indicate that she has trialled a range of different medications which have largely been unsuccessful in addressing her symptoms.
Ms Mante’s psychologist, Ms Melanie Canning, made the following observation in her 2022 report:[13]
Jennifer has a long history or trialling and maintaining all evidence-based treatments. Specifically, Jennifer has trialled numerous mediations, as well as psychological and physical therapies. On initial presentation Jennifer was taking Zoloft 100mg three times a day and valium PRN 5mg. Jennifer had tried a multitude of other antidepressants, mood stabilisers and even antipsychotics in a bid to find something that was able to help and allow her to engage meaningfully in society. These have included but not limited to;
Cymbalta, Epilum, Lamotrogine, Valpro and Clonazapine
Jennifer shows allergies to Catapress, Inderal, Lamictal, Tegretol and Xanax. Later in 2010 Jennifer commenced Avanza/Mitazipine which initially had good effect for anxiety however the weight gain was extreme and added to low self-esteem and further depression. Over the years Jennifer had been able to find a balance between utilising Avanza when her anxiety was at its worst, whilst minimising weight gain, however the Avanza did not ever completely remove the anxiety. This has meant that Jennifer has continued to live with an underlying consistent anxiety that is often debilitating in nature despite the Avanza. Jennifer’s mental health has long taken the pattern of her either experiencing high anxiety or severe depression, with chronic suicidal ideation though largely with no plan or intent. It is my opinion that Jennifer’s quality of life remains poor even with the addition of Avanza.
[13] JTB (n 1) 114.
Dr Robert Kruk in his report dated 12 March 2023,[14] noted the following:
She has a history of severe depression since adolescence. She has been receiving TMS since October 2021 when she presented with a relapse of depression associated with a marked deterioration in her functioning.
In the past she was treated with numerous medications, including sertraline, agomelatine, fluvoxamine, mirtazapine, asenapine and lamotrigine.
[14] Ibid 130.
Both clinicians recommended Ms Mante undertake regular exercise as a means of managing her mental health.
Ms Mante’s Occupational Therapist, Samreen Pannu in his report of 11 October 2022 also indicated these benefits:[15]
Jennifer has been engaging in exercise physiology with her previous plan. It has been a critical intervention in allowing her to engage in a social environment whilst developing coping mechanisms that are healthy for her grief and depression. Jennifer has asked for her Exercise Physiology to be continued as it is an effective intervention for her mental health and wellbeing.
[15] Ibid 169.
Mr Murphy in his report of 31 October 2022 stated as follows:[16]
Jenny has also engaged in physical activity before, and personally states that when she was exercising at least 3x a week, it was the only thing that helped stabilise her mind over a long period of time other than medications. Although she doesn’t love exercise, she understands that it has a positive effect on her mental health due to endorphins as well as helps with her routine and the management of her body pains e.g., sciatica and other musculoskeletal injuries.
[16] Ibid 20.
The Respondent placed significant emphasis upon the fact that while Ms Mante’s mental health specialists have provided reports where they indicate she experiences significant physical and mental health benefits from participating in regular exercise, they do not specifically recommend this take place in a gym environment. They also suggested that the primary benefits of exercise both in the gym and elsewhere was primarily related to her physical health.
Further, the Respondent also submitted that Mr Murphy lacks the necessary qualifications and experience to address and comment on the mental health benefits of Ms Mante’s exercise, whether in a gym environment or elsewhere.
I consider this narrow construction on how I should address the evidence is unduly restrictive. In my view, it is appropriate to consider the totality of the medical and other evidence including Ms Mante’s lived experience, and subjective feelings on what physical, mental, and social benefits she believes she gains from exercising in a gym environment.
If one accepts, as I do, that there is a direct causal link between Ms Mante suffering an injury or contracting an illness and the onset of a depressive episode, any program that builds both strength and resilience will necessarily have benefits for both Ms Mante’s physical and mental health.
Evidence was also provided that there are a greater range of exercise options available in the gym environment than what she can access exercising at home or in the park.
There is also evidence from Ms Mante, Mr Murphy and Ms Canning as to the mental health benefits she receives from accessing exercise in a gym environment, and opportunities for social engagement.
In this regard, Ms Canning noted as follows:
Whilst Jennifer was engaging in person training she reported herself to feel more motivated and engaging in life, she felt a greater sense of involvement in the community and her self-esteem was higher. Jennifer was also able to reduce therapy during this time.[17]
[17] JTB (n 1) 117.
Based upon the above observations I find that the proposed support is directly related to Ms Mante’s disability.
Is the cost of gym membership a day-to-day expense?
Before addressing this contention, I note that the Respondent made reference to the recent Federal Court decision of Warwick v National Disability Insurance Agency.
The decision in Warwick related to whether relocation costs such as agent’s commission, stamp duty and conveyancing fees, properly considered should be viewed as day-to-day living costs.
His Honour, Perran J, was of the view that such expenses were extraordinary and were not everyday costs incurred in the course of living for the purpose of living.[18]
[18] Warwick v National Disability Insurance Agency [2024] FCA 616, 622.
I do not consider the decision in Warwick provides much assistance in Ms Mante’s matter. As noted above, the case concerned a question of whether relocation costs should be met by the scheme.
I do not consider that case applies to Ms Mante’s circumstances and the issue before the Tribunal.
The cost of relocating one’s home is not a common everyday expense for most individuals. The question of whether to take out a gym membership, is far more common for most Australians, which they will make, after considering a range of financial and other considerations.
The Respondent’s contention is to the effect that as all Australians have the obligation to take responsibility for their health including engaging in regular physical exercise, that properly considered the costs of a gym membership is a day-to-day expense:
A support will not be provided or funded under the NDIS if:
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
The important consideration in making a determination, if a requested support is a day-to-day expense, is assessing whether there is a direct relationship between the requested support and participant’s disability support needs.
I find that there are strong grounds for finding a direct nexus between the cost of the gym membership and Ms Mante’s disability support needs.
Firstly, Mr Murphy recommended that some of Ms Mante’s regular exercise that places in a gym, as it offered a wider range of exercise options than exercise taking place in her home or in a park. He also considered that it represented value for money, as included in the membership was access to other facilities such as a pool, sauna and the opportunity to participate in group yoga classes.
Ms Mante’s evidence was to the effect that she would not have contemplated joining a gym except for the recommendations made by Mr Murphy and her psychologist. She said that her medications cause severe side effects, and having regular exercise is one of the few things that does not have any side effects.
Ms Mante considers the primary benefit of regular gym and other sessions are an improvement to her mood and sense of well-being. She said that she would at times get to the gym with a low mood, and then notice an immediate improvement after commencing the exercise.
She also considers that having appointments booked with Mr Murphy particularly obliges her to attend, even when she lacks the motivation to do so on any given day.
Mr Murphy’s evidence is that having consistent exercise sessions in a gym environment, and elsewhere over time, demonstrates significant benefits in her levels of anxiety and her improved self confidence in social settings.
That observation is echoed by Ms Canning in her report (see [122] above).
In addition, the evidence before the Tribunal is that the alternatives to exercise in a gym environment such as in home, at the private gym and in the park, all have limitations both in terms of the range of exercise options, and Ms Mante’s personal circumstances.
Based upon these considerations, I am satisfied that the requested support does not constitute a day-to-day expense as it is clearly attributable to Ms Mante’s disability support needs.
Does the cost of gym membership represent value for money?
Rule 3.1 of the NDIS Supports for Participants Rules states the following:
Value for money
3.1In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a)whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(c)whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d)for supports that involve the provision of equipment or modifications:
(i) the comparative cost of purchasing or leasing the equipment or modifications; and
(ii) whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e)whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f)whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
The Respondent in its Statement of Facts, Issues and Contentions referred to Rule 3.1 where it stated that evidence was required to establish that the requested support will substantially improve the life stage outcomes for the participant, increase independence and reduce the needs for other kinds of supports.
The internal review decision maker observed that the cost of gym membership would not reduce the cost of funding in other areas of Ms Mante’s plan.
The Respondent, while accepting the potential mental health benefits of exercise generally, disputed that gym membership represented value for money when it was considered that Ms Mante could potentially obtain similar results from having exercise at home or in the park.
Both Ms Mante and Mr Murphy gave evidence outlining the potential reasons why these were not necessarily realistic options.
Firstly, the gym provides a wider range of options in terms of machines and weights that Ms Mante can use. The evidence from Ms Mante and Mr Murphy was that exercising at home or outdoors is necessarily limited to what can be utilised or adapted in those environments.
Ms Mante’s evidence was that she would not have the motivation to exercise on her own at home. She also does not want to have males in her home.
A further limitation to exercising at home, is the limited range of equipment she could use at home as opposed to the wider variety available at the gym.
I note that Ms Mante gave evidence that in a previous plan, she had received funding through the NDIS to attend yoga classes. During that plan, she had been attending a number of classes each week at a cost of $90 per week. Mr Murphy had suggested that she could perhaps take up a membership at her current gym, as it offered a range of exercise options including yoga for a significantly cheaper cost of the yoga sessions.
While this was disputed by the respondent’s representative, no evidence to the contrary was provided and I accept Ms Mante’s evidence as I consider her to be both forthright and honest in her evidence.
Ms Mante and Mr Murphy gave evidence as to the positive benefits both in terms of Ms Mante’s mood and anxiety levels of the gym sessions. Ms Mante considered that it assists in holding down her job.
There is also clear evidence that the regular exercise sessions reduced her need for other funded supports. For example, Ms Canning noted, that due to her regular one-on-one training with her exercise physiologist, Ms Mante was more motivated and engaging in life, with a greater sense of involvement in the community, and her self-esteem was higher. In addition, Ms Mante was also able to reduce therapy during this time.
It is clear to me, from the totality of the evidence, that there are certain significant benefits for Ms Mante in having a gym membership, and that there are no cheaper alternatives that could achieve the same outcomes, and that this support will increase her independence and reduce her need for other funded supports.
I am therefore satisfied that the requested support is reasonable and necessary within the meaning of section 34(1) of the Act.
DECISION
Pursuant to s 43(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) the reviewable decision made by the NDIA on 11 January 2023 is varied as follows:
(i)Ms Mante is to receive funding for the annual cost of gym membership with Peninsula Aquatic Recreation Centre.
I certify that the preceding 155 (one hundred and fifty-five) paragraphs are a true copy of the reasons for the decision herein of Member A. C. Williams
..................................[sgn]......................................
Associate
Dated 25 September 2024
Date of hearing: 14 August 2024 Applicant: Self-represented
Counsel for the Respondent: Ms Ruth Hamnett
Solicitors for the Respondent: Makinson d'Apice Lawyers
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