Marcello and National Disability Insurance Agency

Marcello and National Disability Insurance Agency [2022] AATA 162 (4 February 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number:2021/3528
Re:Gerard Marcello
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member K. Parker; Member D. Connolly
Date: 4 February 2022
Place: Sydney

The Tribunal sets aside the Decision Under Review and remits the matter for reconsideration with a direction that on or before 11 February 2022, a new statement of supports be approved for Mr Gerard Marcello, with a review date of 20 May 2022, containing the following reasonable and necessary supports:
1.subject to Mrs Winnie Marcello’s consent to accessing the supports referred to in paragraph 2 below and Blacktown Hospital authorising the discharge of Mr Marcello, the provision of, and funding for, 100 hours of services from a suitably qualified social worker, occupational therapist, and/or respiratory, nursing, or other consultant, and a further 50 hours of services from a Level 3 specialist support coordinator, for the purposes of:
(a)identifying a residential care facility with the resources and capacity to safely accommodate and care for Mr Marcello;
(b)identifying a nursing agency with the resources and capacity to supply nurses able to attend the residential care facility to attend to Mr Marcello’s tracheostomy nursing requirements, in accordance with subparagraph 2(b) below;

(c)assisting Mrs Winnie Marcello, and Mr Marcello’s support coordinator, to facilitate all necessary arrangements for Mr Marcello to be transferred to and enter the identified residential care facility before he reaches the age of 65 on 20 May 2022; and

(d)to develop a care plan for Mr Marcello that applies to him being cared for in the identified residential care facility, and specifically addressing (among other things) the safe facilitation of his regular nasogastric tube changes and other hospital transfers, as required;

2.subject to Mrs Marcello’s consent to Mr Marcello becoming a resident of the identified residential care facility and the Blacktown Hospital authorising the discharge of Mr Marcello, the provision of, and funding for:
(a)all out of pocket fees and expenses due and payable by Mr Marcello under the residential agreement entered into between him and the residential care facility, for a room type which is adequate and no more than required to meet his needs (subject to a quote or quotes being provided by identified residential aged care facility); and
(b)8 hours every week (plus payment for time for any travel required), for a suitably qualified tracheostomy nurse to attend the identified residential care facility to attend to Mr Marcello’s tracheostomy care needs, and to train and/or guide the care and nursing staff at the care facility to attend to those needs when the nurse is not present.

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Member K. Parker; Member D. Connolly
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – review of statement of participant supports – Applicant suffered pontine stroke with extensive haemorrhage – Applicant in persistent state of unconsciousness – Applicant in rehabilitation ward at public hospital - request for supports to facilitate Applicant being cared for in his home valued at $1,979,015.55 per annum – whether requested supports are “reasonable and necessary supports” – consideration of criteria under s 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) – whether supports should not be provided or funded due to application of Rule 5.1(a) of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) – whether requested supports are likely to cause harm to Applicant or to pose a risk to others – consideration of other supports to be provided for and funded under the Applicant’s statement of participant supports – Applicant is 64 years old – consideration of s 29(1)(b) of the NDIS Act Decision Under Review set aside and remitted with directions – subject to consent of Applicant’s wife and Hospital discharge, provision made for services to assist the Applicant’s wife to identify a suitable residential care facility, payment of all out of pocket fees and expenses of Applicant residing at residential care facility, and services of tracheostomy nurse to provide tracheostomy care at residential care facility
Legislation
Aged Care Act 1997 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Provider Registration and Practice Standards) Amendment (2021 Measures No. 1) Rules 2021
Cases
Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Secondary Materials
Australian Government response to the final report of the Royal Commission into Aged Care Quality and Safety | Australian Government Department of Health
Final Report | Royal Commission into Aged Care Quality and Safety
Operational Guidelines | NDIS
National Disability Insurance Scheme Legislation Amendment (Quality Indicators) Guidelines 2021- NDIS Practice Standards and Quality Indicators | NDIS Quality and Safeguards Commission (ndiscommission.gov.au)
REASONS FOR DECISION
Member K. Parker; Member D. Connolly
4 February 2022
INTRODUCTION

This application involves review of a decision made under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) affirming a decision made under s 33(2) of the NDIS Act, to approve a statement of participant supports forming part of the Applicant’s, Mr Gerard Marcello’s, National Disability Insurance Scheme (NDIS) plan. Essentially, this case involves consideration of a request made by Mr Marcello’s wife, Mrs Winnie Marcello, on his behalf, for the provision of and funding for support workers, nursing care and equipment to facilitate Mr Marcello being cared for in his home, at a projected total cost of $1,979,015.55 per annum. This case also involves consideration of whether alternative reasonable and necessary supports should be provided for, and funded, under Mr Marcello’s statement of participant supports in his NDIS plan.
The Tribunal’s jurisdiction to decide this application arises under s 103 of the NDIS Act.
For the reasons given below, the Tribunal sets aside the reviewable decision and remits this matter to the National Disability Insurance Agency (NDIA) with directions, as set out in the Decision, which, in summary, direct that a new statement of participant supports be approved for Mr Marcello making provision for services to assist Mrs Marcello, subject to her consent, to:
(a)identify a suitable residential care facility for Mr Marcello with the assistance of appropriate professionals;
(b)once identified, to fund all out of pocket fees and expenses for the cost of Mr Marcello being cared for at a suitable residential care facility; and
(c)fund the services of a tracheostomy nurse or nurses to provide individual tracheostomy care to Mr Marcello at the residential care facility.
BACKGROUND
The Applicant, Mr Gerard Marcello, aged 64, is an adult participant of the NDIS.[1] Mr and Mrs Marcello have one adult son, Mr Barry Marcello (Barry). Barry lives with his wife and two young children in a house situated about 28km from Mr and Mrs Marcello’s home.
[1] Refer to T-Documents T1.
On 6 July 2020, Mr Marcello suffered a pontine stroke with extensive haemorrhage, known as a brainstem stroke. Mr Marcello’s brain is no longer able to send messages to his body.[2] He is in a persistent state of unconsciousness.[3] The stroke has caused significant impairment to Mr Marcello’s respiratory system. He has been an inpatient at Blacktown Hospital (Hospital) since July 2020.[4] On 4 August 2020, Mr Marcello moved to the stroke rehabilitation ward at the Hospital and has been there since this date.[5] Mr Marcello’s day-to-day medical care and attention has been, and still is, supervised by Dr James Strathdee, Registrar, Blacktown Hospital. He has a tracheostomy and nasogastric tube in situ.[6]
[2] Refer to evidence of Dr James Strathdee, Registrar, Blacktown Hospital, at Transcript P-146.
[3] Refer to T-Documents T3/34.
[4] Refer to Statement of Barry Marcello dated 13 October 2021.
[5] Refer to Statement of Winnie Marcello dated 1 September 2021.
[6] Refer to T-Documents T3/34.
At the hearing, Dr Strathdee gave evidence that Mr Marcello has suffered from at least four episodes of pneumonia in the time he has been treating him.[7] In September 2021, Mr Marcello suffered from a potentially life-threatening episode of pneumonia and his family were called to the Hospital, despite stringent COVID-19 restrictions in place at that time.[8] Dr Strathdee categorised all four bouts of pneumonia suffered by Mr Marcello as “severe”.[9]
[7] Refer to Transcript at P-144.
[8] Ibid.
[9] Refer to Transcript at P-145.
On 16 September 2020, Mr Marcello was granted access to and became a participant of the NDIS.
First NDIS Plan – February 2021
On 1 February 2021, a delegate of the CEO of the NDIA approved a statement of participant supports (SOPS) for Mr Marcello (First SOPS). This plan provided $465,888.44 in supports for a three-month period.[10] This included supports to facilitate Mr Marcello to be cared for at home. The First SOPS had a review date of 3 May 2021.
[10] Refer to T-Documents T14.
Second NDIS Plan – February 2021
On 12 February 2021, NDIA undertook an unscheduled plan review pursuant to s 48 of the NDIS Act and approved a new SOPS for Mr Marcello (Second SOPS). The Second SOPS provided total funding of $15,295.65 for Plan Management and Support Coordination Funding. It did not include supports to facilitate Mr Marcello to be cared for at home. The Second SOPS had a review date of 13 August 2021.
Internal Review Decision – May 2021
On 23 February 2021, Mrs Marcello lodged a request for a delegate of the CEO of the NDIA (that is, a “reviewer”) to undertake an internal review decision. On 18 May 2021, the NDIA made an internal review decision (Decision Under Review) and implemented a new SOPS valued at $24,995.15 including a new budget for Improved Daily Living (Third SOPS).[11] The review date in the SOPS is 16 November 2021. It did not include supports to facilitate Mr Marcello to be cared for at home. The reviewer considered the request for the provision of funding for a registered nurse, support workers and assistive technology, but found those supports would not assist Mr Marcello to pursue his goals and aspirations, or social and economic participation, or provide value for money, or be effective and beneficial as required under the NDIS Act.
[11] Refer to T-Documents T1A/T17.
Current Supports
The NDIA informed the Tribunal that the supports provided as part of the plan dated 18 May 2021 were “automatically extended for a period of 12 months on a pro-rata basis, to ensure continuity of supports to the Applicant while the Tribunal proceeding remains on foot”.[12] In this correspondence, NDIA’s legal representatives provide the following details of the supports to which Mr Marcello currently has access (Current Supports):
Current Approved Support Details – NDIS Plan 16.11.2021 - 16.11.2022
Support details
CB
Choice & Control - Plan Management And Financial Capacity Building - Set Up Costs X $695.78
Choice & Control - Plan Management - Financial Administration X $1,876.68
Daily Activity - Assessment Recommendation Therapy And/or Training (Incl. AT) – Other Therapy X $29,045.50
Support coordination - Level two and three support coordination X $43,230.91
Total $74,848.87
[12] Refer letter from Clayton Utz to Tribunal dated 4 February 2022. The Tribunal notes that the supports as described in this letter do not replicate the supports previously approved in the Third SOPS.
REQUESTED SUPPORTS
Mrs Marcello and Barry have requested supports to enable Mr Marcello to be discharged from the Hospital to be cared for at home. Mr Marcello’s Outline of Closing Submissions dated 28 October 2021 sets out a statement of requested supports (Requested Supports), essentially seeking the assistance of three support workers for 16 hours per day and two support workers for the remaining 8 hours per day and one registered nurse 8 hours per week; to undertake tracheostomy care, general nursing, personal care, catheter management, nasogastric tube feeding, medication administration, laundry, cleaning, shopping and “decision making”, in accordance with the recommendations of various health professionals.
NDIS funding was also sought for the acquisition of the following equipment to be installed and used in Mr Marcello’s home, and consumables to enable him to be care for at home:
(a)an electric adjustable bed;
(b)a high level, pressure relieving mattress;
(c)tracheostomy care equipment/consumables;
(d)continence consumables;
(e)installation of new power points and circuit, external batteries, and a backup generator; and
(f)nutrition supports and feeding equipment.
It was not in dispute between the parties that the total budget required to provide, and fund, the Requested Supports, if they were approved, would be $1,979,015.55.[13]
[13] Refer NDIA’s Closing Submissions dated 9 November 2021.
LEGISLATIVE FRAMEWORK
The NDIS was established under the NDIS Act and operates in pursuit of the objectives set out in s 3 of the NDIS Act. Section 4 establishes general principles guiding actions to be taken under the NDIS Act.
A participant’s plan is prepared in accordance with the NDIS Act and regulations made under s 32A of the NDIS Act and must include a SOPS. The SOPS must be approved in accordance with the NDIS Act, and any regulations made under the NDIS Act such as the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports for Participants Rules).
Section 33(5) of the NDIS Act requires that the CEO (or his or her delegate), in deciding whether to approve the SOPS under s 33(2), have regard to a number of factors including the participant’s statement of goals and aspirations and relevant assessments conducted in relation to the participant, and be satisfied the supports are “reasonable and necessary”.
Section 34(1) of the NDIS Act requires six mandatory criteria to be met before a support is considered to be a “reasonable and necessary support”. Section 34(2) provides that the NDIS rules may prescribe methods or criteria to be applied or matters to which the decision maker is to have regard, in deciding whether they are satisfied that the criteria under s 34(1) have been met in respect of a requested support.
The Tribunal notes the observations of Mortimer J in McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle) at [43] as follows (emphasis added in bold):
The [Supports for Participants Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement… some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.
ISSUES
The Tribunal is required to undertake a merits review and will, in effect, stand in the shoes of the original decision maker who made a decision to approve a SOPS for Mr Marcello, containing supports, a review date, and stipulations as to how the funding and other aspects of the plan are to be managed.
There was no preference raised by Mrs Marcello about the review date or how the funding for supports and other aspects of Mr Marcello’s NDIS plan are to be managed. The primary issue arising in this application is what supports should be included in Mr Marcello’s SOPS and specifically, but not exclusively, whether the Requested Supports are “reasonable and necessary supports” under s 34(1) of the NDIS Act and should be included. In the Decision Under Review, the NDIA decided that an earlier version of the Requested Supports that would facilitate home-based care for Mr Marcello are not “reasonable and necessary supports” and should not be included in his SOPS.
Section 33(5)(d) of the NDIS Act provides that when deciding whether or not to approve a SOPS, the decision-maker “must apply” the NDIS rules (if any) made for the purposes of s 35 of the NDIS Act. Section 35(1)(b) of the NDIS Act allow for rules to “make provision in connection with the funding or provision of supports, including but not limited to prescribing …reasonable and necessary supports or general supports that will or will not be funded or provided under the” NDIS.
Part 5 of the Supports for Participants Rules prescribe “general criteria for supports, and supports that will not be funded or provided” and under Rule 5.1(a), a support will not be provided or funded under the NDIS if “it is likely to cause harm to the participant or pose a risk to others”.
Given Mr Marcello’s circumstances, the first sub-issue that arises for determination by the Tribunal is whether Rule 5.1(a) of the Support for Participant Rules applies in this case, and prohibits the provision of, and funding for, the Requested Supports, on the basis that they are “likely to cause harm to” Mr Marcello, or “to pose a risk to others”.
If the Tribunal concludes that Rule 5.1(a) applies in this case in respect of the Requested Supports:
(a)the Tribunal considers that it is not necessary to proceed to a consideration of whether, in respect of the Requested Supports, the criteria under s 34(1) of the NDIS Act have been met, or to have regard to other matters prescribed in the Support for Participant Rules, to which it must have regard when assessing the criteria under s 34(1);[14] and
(b)the Tribunal will consider whether there are other “reasonable and necessary supports” that should be included in the SOPS within Mr Marcello’s NDIS plan.
EVIDENCE AND SUBMISSIONS
[14] Refer to s 34(2) of the NDIS Act.
Hearing and witnesses
On 20 May 2021, Mr Marcello lodged with the Administrative Appeals Tribunal an Application for Review of Decision.[15] The Tribunal listed this application for an expedited hearing on 18, 19 and 29 October 2021 based on Mrs Marcello’s indication to the Tribunal that Mr Marcello was awaiting discharge from the Hospital, pending approval under the NDIS of the provision or funding for Requested Supports.
[15] Refer to T-Documents T1.
Mrs Marcello and Barry gave evidence at the hearing. The following five expert witnesses were called, or summonsed, to give oral evidence at the hearing:
(a)Ms Natalie Francis, practising occupational therapist at Blacktown Hospital (called by Mr Marcello);
(b)Ms Ruth Miranda, respiratory clinical nurse consultant at Blacktown Hospital (called by Mr Marcello);
(c)Dr Strathdee, Registrar at Blacktown Hospital (called by the Tribunal under summons to give evidence);
(d)Ms Clarissa Haylett, occupational therapist, OSR Group, who conducted an independent “in-home” assessment at Mr and Mrs Marcello’s home (called by the NDIA); and
(e)Ms Karen Booth, primary health care nurse consultant (called by the NDIA).
Documentary evidence
Pursuant to its obligations under ss 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the NDIA lodged a set of documents on 18 June 2021 (T-Documents). The NDIA also lodged a hearing tender bundle on 15 October 2021 (HTB) comprising 747 pages, which included the following documents:
(a)expert report by Ms Booth dated 29 September 2021 (Ms Booth’s Report);
(b)supplementary expert report by Ms Booth (following an in-hospital assessment of Mr Marcello lodged on 26 October 2021) (Ms Booth’s Supplementary Report); and
(c)expert report by Ms Haylett dated 2 August 2021 (Ms Haylett’s Report) and letter of recommendations of the same date (Ms Haylett’s Letter).

The NDIA also lodged a number of affidavits prepared by its legal representative, Ms Letcher-Bolt, including some in response to specific requests by the Tribunal as the hearing of this proceeding unfolded.
Mr Marcello relied up on the following documentary evidence:
(a)witness statement signed by Mrs Marcello on 1 September 2021 (Mrs Marcello’s Statement);
(b)witness statement signed by Mrs Marcello on 13 October 2021 (Mrs Marcello’s Supplementary Statement) and Medicare immunisation history statement for Mrs Marcello;[16]
(c)witness statement signed by Mrs Marcello on 28 October 2021 (Mrs Marcello’s Further Supplementary Statement);
(d)witness statement signed by Barry on 13 October 2021 (Barry’s Statement);
(e)witness statement signed by Barry on 28 October 2021 (Barry’s Supplementary Statement) and Medicare immunisation history statement for Barry;
(f)expert report entitled “Assessment of Care Supports” by Ms Francis dated 9 July 2021 (Ms Francis’s Report);
(g)expert report by Ms Ruth Miranda dated 13 October 2021 (Ms Miranda’s Report);
(h)medical report by Dr James Strathdee dated 24 March 2021 (Dr Strathdee’s Report); and
(i)medical report by Dr William Nigole, Registrar, Blacktown Hospital, dated 24 November 2020 (Dr Nigole’s Report).
[16] Refer to Exhibit A1.
The Tribunal had before it a set of emails from the Office of Scheme Actuary (OSA) dated 21 September 2021 and 15 and 18 October 2021 setting out information and data about the range of levels of funding approved in NDIS plans for participants, who reside in residential care facilities. This information was requested to be produced by the Tribunal.
Submissions
The following submissions were lodged by the parties in this matter:
(a)Mr Marcello’s statement of facts, issues and contentions dated 1 September 2021 (Mr Marcello’s SFIC);
(b)NDIA’s statement of facts, issues and contentions dated 29 September 2021 (NDIA’s SFIC);
(c)Mr Marcello’s outline of closing submissions dated 28 October 2021 (Mr Marcello’s Closing Submissions);
(d)Mr Marcello’s amended statement of requested supports dated 28 October 2021 (Mr Marcello’s Statement of Requested Supports);
(e)NDIA’s closing submissions dated 9 November 2021 (NDIA’s Closing Submissions); and
(f)NDIA’s reply submissions dated 16 November 2021 (NDIA’s Reply Submissions).
CONSIDERATION
Mr Marcello’s medical needs and assistance required
In a letter dated 24 March 2021, Dr Strathdee reports that Mr Marcello’s disabilities likely to be “permanent” and “profoundly limit his functional capacity”, are as follows:
(a)tetraplegia;
(b)bilateral facial paralysis causing loss of voluntary facial expression;
(c)bilateral glossopharyngeal and laryngeal paralysis causing anarthria and preventing coordination of breathing, voluntary vocalisation, and swallowing;
(d)horizontal gaze paralysis; and
(e)loss of voluntary control of respiration causing irregular breathing and reduced respiratory vital capacity.
The clinical notes of a meeting between Mr Marcello’s family members and Dr Andrew Martin, neurologist, at the Hospital on 17 July 2020, record that:
(a)Mr Marcello had shown no meaningful recovery;
(b)would not recover from this current neurological state; and
(c)that the occasional movements observed bedside were “reflexive spinal cord movements”, and “not indicative of meaningful brainstem or cortical function”.[17]
[17] Refer to Bundle of Material Produced under Summons SM1/105.
Mr Marcello breathes with the assistance of a tracheostomy.[18] He is non-responsive with a Glasgow Coma Score of 3, meaning he has no eye opening, verbal or motor response.[19] As mentioned above, he is in a persistent state of unconsciousness, a fact that was agreed between the parties.[20] He is dependent upon on a nasogastric tube to meet his nutritional requirements. He has used an indwelling catheter; however, Dr Strathdee told the Tribunal at the hearing that this has not been the case since June 2021. Mr Marcello is bed bound. He is completely dependent in every aspect of daily life upon the assistance of others and is highly vulnerable.
[18] Refer to Report of Dr James Strathdee dated 24 March 2021/T11.
[19] Refer to T-Documents T3. In Ms Haylett’s Report at HTB2/12, she states that the Glasgow Coma Scale “is a widely used scale to describe the level of unconsciousness of patients following a brain injury and is based on patients’ best eye-opening, verbal and motor responses. The severity of the brain injury is also then classified as mild, moderate and severe based on the total score. (mild= 12-15/15, moderate = 9-12/15, severe = ≤8)”.
[20] Refer to T-Documents T9.
In November 2020, Dr Nigole reported that Mr Marcello's treatment has included, “intensive care support to maintain cardiovascular and respiratory stability and, as a result, a tracheostomy has been placed to support his airway. These treatments have not resulted in any significant improvement in his function. Mr Marcello will require lifelong supports as a result of the substantial functional impact that his condition has had on his ability to participate in everyday life”.[21] There is no evidence to suggest Mr Marcello’s condition has changed since November 2020.
[21] Refer to T-Documents T4.
With respect to the supports required if Mr Marcello is to be cared for at home, there was disagreement about the level of support worker services he would require. Mr Marcello contends that he requires support worker services as follows;
(a)3:1 ratio for 16 hours per day, 365 days per year; and
(b)2:1 ratio for the remaining 8 hours per day, 365 days per year.
The NDIA relies upon Ms Booth’s Report, and contends that if Mr Marcello returned to be cared for in the home, he would require support worker services at a:
(a)2:1 ratio for 8 hours per day, 365 days per year; and
(b)1:1 ratio for the remaining 16 hours per day, 365 days per year.
When Mrs Marcello made her Statement in September 2021, she asserted that, if Mr Marcello was cared for in their home, he would require the services of a registered nurse for 24 hours per day, 365 days per year. After the experts gave evidence at the hearing, Mrs Marcello conceded that Mr Marcello would only require eight hours per day, 365 day per year. The NDIA accepted that if Mr Marcello were to be cared for at home, he would require eight hours per day, 365 day per year, of services from a registered nurse.
The family’s preference for Mr Marcello to be cared for at home
In Mrs Marcello’s Statement, she states that she was visiting Mr Marcello on a daily basis, sometimes sleeping overnight at the hospital, until the COVID-19 lockdown in June 2021. She states that her sister-in-law or neighbour had driven her to and from the Hospital, because Mrs Marcello does not drive. At the hearing, Mrs Marcello told the Tribunal that since making her Statement, she has been unable to visit Mr Marcello, at first because of public health restrictions prohibiting all visits, and subsequently, because she was not vaccinated against COVID-19. Mrs Marcello states her wish for Mr Marcello return home to be with her, so she can sit with him and comfort him. She also states she would like family members, friends, and church members to visit him. Mrs Marcello states that it would be easier for everyone to visit him if he was living at their home.
As mentioned above, at the time of making her first statement in September 2021, Mrs Marcello asserted that Mr Marcello would need 24/7 registered nursing care at their home, because his tracheostomy care is “most difficult”.[22] Mrs Marcello states that she intended to learn some skills needed so she could help out, such as replacing his feeding bottle, flushing the feeding tube, wiping his mouth, and emptying his urine bottle. She states that she is not strong enough to help with manual lifting. Mrs Marcello states that her intention was for Mr Marcello to be cared for in their lounge room, which, according to Ms Francis, is big enough to accommodate his equipment and the carers who would look after him. Mrs Marcello states that a support coordinator, “Blessing”, would manage the rosters of care to make sure there is a registered nurse on, at all times.
[22] Refer to Hearing Tender Bundle (HTB) 4/44 at [27].
In Mrs Marcello’s Supplementary Statement, she reiterated it is the important for Mr Marcello to be cared for at home so his family and friends could visit him. She states Mr Marcello’s church friends would be able to sit around him, praying and singing, which is an activity that Mr Marcello loves. Mrs Marcello explained that they used to hold monthly prayer meetings in their home.
Mrs Marcello states that when she visited Mr Marcello in hospital, if his tracheostomy became dislodged, she was able to find a nurse to fix it. She expresses her concern that if Mr Marcello was discharged to an aged care facility, he would not be adequately cared for, and it would be very difficult for her to visit him, because she does not drive. She states it would mean she could not maintain her “routines” and “social links”, because she would spend more time travelling to and from the facility. Also, she states that if Mr Marcello is at home, family and friends could visit any time and they would not need to fit in with visiting hours which would apply if Mr Marcello was in a facility.
Evidentiary gaps and summons issued to Dr Strathdee to determine Mr Marcello’s current medical condition
Prior to the commencement of the hearing, apart from Dr Nigole’s Report and Dr Strathdee’s Report, Mrs Marcello had not lodged with the Tribunal any other medical evidence in support of Mr Marcello’s case. The Tribunal informed the parties that it considered there to be an evidentiary gap, in terms of the available medical evidence upon which the Tribunal could have any certainty as to Mr Marcello’s current condition. For this reason, the Tribunal requested that arrangements be made for Dr Strathdee to be called as a witness. Dr Strathdee declined an invitation by Mr Marcello’s lawyers to attend the Tribunal to give evidence. A summons was issued to facilitate his appearance, and to compel production of all medical records relating to Mr Marcello held by the Hospital. When Mr Strathdee appeared to give evidence, it became evident as to why he or the Hospital was initially reluctant for him to do so. Dr Strathdee and the Hospital have faced some difficult ethical issues in continuing to provide life-sustaining care for Mr Marcello as detailed below under the heading “Ethical considerations”.
Upon Dr Strathdee giving attendance at the hearing, it was revealed that Mr Marcello had a significant history since his admission to the Hospital of suffering severe episodes of life-threatening pneumonia requiring intravenous antibiotic treatment.
At the hearing, Barry gave evidence that on 5 August 2021, “the whole family, including our extended family, so his sisters and my cousins, et cetera, we were all called to say our final goodbyes because he was breathing erratically”.[23] Barry said that by “late afternoon/early evening” Mr Marcello’s breathing had returned to normal.[24]
[23] Refer to Transcript at P-57.
[24] Ibid.
Mrs Marcello told the Tribunal that while she was not allowed to visit Mr Marcello because of her vaccination status, in September 2021 she received a telephone call from Dr Strathdee asking her to visit the Hospital because Mr Marcello’s oxygen saturation level was low, (i.e. 40), when it should have been between 88 and 96. Barry confirmed they were called into the Hospital in September 2021 and he said, “…But within an hour, no more than two hours, [Mr Marcello’s] breathing had returned to normal”.[25]
[25] Ibid.
When Mrs Marcello was asked at the hearing if there had been any other episodes of Mr Marcello suffering acute illness, she said, “Infection is - it's just aspiration. But that's not often”.[26] She also acknowledged that on another occasion, she was called into the Hospital after Mr Marcello experienced breathing problems because his tracheal tube was blocked.[27]
[26] Ibid at P-40.
[27] Ibid.
Ethical considerations disregarded by the Tribunal
At the hearing, Dr Strathdee discussed the current Hospital’s treating team’s concerns as to whether it is medically and ethically appropriate to continue providing Mr Marcello with active care. He indicated this issue had been referred to the Hospital’s “ethics committee” for “review”.
After the hearing, Dr Strathdee informed the Tribunal by correspondence on 4 November 2021 that the Hospital’s medical ethics committee had not happened as at that date, and that no opinion had been formed. Dr Strathdee explained that “such reviews can take some time as often they involve a review of the medical record (which is now 485 days in duration)”, and he indicated that a time was not specified with the request for review because, “we... did not think it was a matter of urgency as it was unlikely to alter his immediate medical treatment”.[28]
[28] Refer email from Dr Strathdee to the Tribunal sent on 4 November 2021.
At the hearing, Dr Strathdee said there was “building sentiment that we’re doing the wrong thing”,[29] and that Mr Marcello had been seen by “5 neurologists who all want to palliate him”.[30] Dr Strathdee said he was treating Mr Marcello largely based on the family’s wishes, but his personal view was that Mr Marcello’s infections should not be treated. Dr Strathdee gave evidence that he thinks “it would be a blessing for him to die from a pneumonia”.[31]
[29] Refer to Transcript at P-159.
[30] Ibid at P-166.
[31] Ibid at P-145.
When Dr Strathdee was asked about Mr Marcello being cared for at home, he said that:[32]
(a)it would be difficult to easily transport him to hospital;
(b)it would be difficult to “easily pick up on infection”; and
(c)Mr Marcello probably should not be treated for infection if he goes home.
[32] Ibid.
Dr Strathdee said that a normal course of care, for a patient with Mr Marcello’s condition, would be for him to receive “palliative care, basically from admission”.[33] Dr Strathdee explained that Mr Marcello had suffered “a devastating stroke with no chance of recovery. He has obliterated… the brain centre communication with the body and the brain. He’s condemned to a lifelong prison essentially that he can’t be freed from”.[34]
[33] Ibid at P-146.
[34] Ibid.
The Hospital records for Mr Marcello record that the issue of whether he should be given active care, given his poor prognosis, was raised by the Hospital with Mrs Marcello and Barry in August 2020. The notes record that those at the Hospital treating Mr Marcello, could see that he had “lost his basic functions to sustain life”, and that he is “artificially being prevented from dying”.[35] The Hospital records include a notation of discussions that took place between Mr Marcello’s treating team and Mrs Marcello regarding the possibility of transferring him to palliative care as from August 2020.[36] In a Hospital record dated 25 May 2021, it was noted that Mrs Marcello understood that Mr Marcello may be unable to communicate suffering, and that she may have misinterpreted Mr Marcello’s eye activity as signs of recovery.[37] This Hospital record notes that Mrs Marcello had made it clear to the Hospital that she does not want Mr Marcello to be palliated and wished for him to continue to receive life-sustaining care.[38]
[35] Refer to Bundle of Material Produced under Summons SM1/103.
[36] Ibid 49.
[37] Ibid 32.
[38] Ibid 7 and 10.
The NDIA has referred to the possibility that the Hospital may cease providing active care for Mr Marcello (depending upon the outcome of the Hospital’s ethics committee review), and the Hospital has the option of approaching the NSW Supreme Court to facilitate this course.[39] The NDIA acknowledges that the medical, ethical, and legal questions in relation to Mr Marcello’s ongoing active care are beyond the remit of the Tribunal. Despite this, the NDIA contends that the existence of those enquiries being underway is relevant to the assessment by this Tribunal of whether the Requested Supports are “reasonable and necessary supports”, because depending upon the outcome of that ethics committee process, Mr Marcello may not be discharged from the Hospital.
[39] Refer to NDIA’s Closing Submission at [19].
In Mr Marcello’s Reply Closing Submissions, Mr Liu contends that Dr Strathdee’s evidence given at the hearing, and medical records obtained from the Hospital, are “almost entirely irrelevant for the purpose of the Tribunal’s task under s 33(2) of the NDIS Act, “and its assessment of the criteria under s 34(1)”.[40] Mr Liu contends that, “[t]he Tribunal should disavow any reliance on it for the purposes advanced by the Agency”.[41] Mr Liu contends that the issue before the Tribunal is whether the requested supports are reasonable and necessary, and that Dr Strathdee’s personal opinion about the medical ethics of providing Mr Marcello with life-sustaining care, is not probative of anything the Tribunal must consider according to ss 33(2) and 33(5) of the NDIS Act. He referred to Mrs Marcello’s appointment as Mr Marcello’s guardian, empowering Mrs Marcello to decide where Mr Marcello was to live. In that regard, the Tribunal notes that an unconditional General Power of Attorney was signed by Mr Marcello on 4 May 2002 appointing Mrs Marcello as his Agent and that on 26 November 2020, the New South Wales Civil and Administrative Tribunal made a limited guardianship order in respect of Mr Marcello which specifies that Mrs Marcello has the function to make decisions about services to be provided to Mr Marcello.[42]
[40] Refer to Mr Marcello’s Reply Closing Submissions at [5].
[41] Ibid.
[42] Refer to HTB5/64 and HTB5/62 respectively.
The Tribunal agrees with Mr Liu that the ethical issue as to whether Mr Marcello should continue to receive life-sustaining treatment (or active care), is not a relevant consideration in its determination of whether the NDIA should provide for, and fund, supports for Mr Marcello in the event that he is discharged by the Hospital and returned to live at home. Nor is it relevant that the Hospital’s ethics committee may decide to approach the NSW Supreme Court for an order to facilitate cessation of such treatment of care of Mr Marcello, irrespective of the wishes of Mrs Marcello and/or Barry. The Tribunal has wholly disregarded the ethical considerations in deciding whether Rule 5.1(a) of the Supports for Participants Rules apply in respect of the Requested Supports and when considering what other reasonable and necessary supports should be included in Mr Marcello’s SOPS.
Whether the Requested Supports are likely to cause Mr Marcello harm or pose a risk to others
The Tribunal must first decide whether the Requested Supports, comprising a home-based care model, are likely to cause Mr Marcello harm, for the purpose of deciding whether Rule 5.1(a) of the Support for Participants Rules applies to Mr Marcello.
As the hearing progressed, especially upon hearing evidence from Dr Strathdee and reviewing the Hospital records produced under summons, several concerns arose that warranted closer examination by the Tribunal. The Tribunal recalled Mrs Marcello as a witness on the last day of the hearing, to address with her in further detail, some of those concerns and to provide her with an opportunity to respond to new evidence that arose at and shortly after, the first and second days of the hearing.
In the NDIA’s Closing Submissions, Ms Roberts makes comprehensive contentions about why, in the opinion of the NDIA, Mr Marcello cannot safely be cared for in Mr and Mrs Marcello’s home.[43]
[43] Refer to NDIA’s Closing Submissions at paragraphs [8] and [25].

In Mr Marcello’s Closing Submissions, Mr Liu contends that the NDIS Act does not make the “safety” issues relevant to the assessment of reasonable and necessary supports. Mr Liu contends the NDIA’s contentions in this regard are inconsistent with the NDIS statutory scheme and the principle espoused under s 4(4) of the NDIS Act that “[p]eople with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports”. Mr Liu contends that the Act does not impose any obligation on participants to establish that their requested supports can be “provided safely” as a condition to having a SOPS approved under s 33(2) of the NDIS Act, and “safety” should be distinguished from the test “likely to cause harm” under Rule 5.1(a) of the Supports for Participants Rules.
The Tribunal does not accept Mr Liu’s contention. The wording of Rule 5.1(a) is unambiguous and calls for a determination about whether the Requested Supports are likely to cause harm to Mr Marcello or to pose a risk to others. The Tribunal does not consider Ms Robert’s contentions referred to in paragraph [60] to be inconsistent with the NDIS Act and Support for Participant Rules and/or the principle under subsection 4(4) of the NDIS Act. Section 4(4) refers to “reasonable risks” and does not encompass risks at large. For this reason, the Tribunal considers that the application of Rule 5.1(1)(a) should be tempered by a consideration of the principle in s 4(4) of the NDIS Act. By that, the Tribunal means that when assessing whether a support is likely to cause harm to a participant, it may be less inclined to reach that conclusion, if the risk to the participant of receiving a particular type of support is “reasonable”, or more inclined to do so, if the risk to the participant is “unreasonable”.
Essentially, there are four safety concerns arising in relation to Mrs Marcello’s and Barry’s proposal that Mr Marcello be cared for at home, that were addressed by the Tribunal during the hearing in assessing whether Rule 5.1(a) applies:
(a)the adequacy of planning and supervision of Mr Marcello’s medical and other care;
(b)the likelihood and consequences of rostering complications;
(c)Mr Marcello’s regular and frequent need for hospitalisation and likely difficulties with transfers; and
(d)whether Mr Marcello would be at an unacceptable increased risk of contracting COVID-19.
Inadequate planning and supervision of Mr Marcello’s medical and other care
At the hearing, the Tribunal addressed the issue of whether the planning for, and supervision of, Mr Marcello’s medical, nursing and support care, is adequate. The NDIA brought to the Tribunal’s attention the fact that Mr Marcello’s family had not identified an agency able to coordinate and staff a care roster in respect of the care of Mr Marcello at home, and there was no current care plan for him.
At the hearing, Mrs Marcello was unable to indicate which person would be responsible for supervising Mr Marcello’s medical, nursing and support care if he was to be cared for at home. Nor has Mrs Marcello made any arrangements for a care plan to be developed for Mr Marcello to be signed off by the person who is ultimately to oversee his medical, nursing and support care at home. The only care plan before the Tribunal is a care plan prepared by an independent clinical nurse consultant, Ms Booth, who was engaged by the NDIA to assess Mr Marcello’s care needs as part of this proceeding. Ms Booth will not be involved in Mr Marcello’s proposed ongoing care at home.

Mrs Marcello was questioned at the hearing about whether she had made any enquiries to have medical consultants available, in the event Mr Marcello became unwell while being cared for at home. Mrs Marcello answered, “I am going to approach a GP and see if we can engage the GP to come to my home regularly…. a GP that Gerard has seen before and is a friend of mine”. When Mrs Marcello was asked if she had raised this with the GP, she said, “No, not yet. I am just waiting on the outcome of the hearings”.[44]
67.
[44] Refer to Transcript at P-181.

Mrs Marcello states that if Mr Marcello returned home that his support coordinator, Mr Blessing Rigava, would manage the rosters of care.[45] At the hearing, Mrs Marcello gave evidence that Mr Rigava had not yet found a care agency prepared to accept Mr Marcello’s case, because they were “waiting on the pricing”.[46] Mrs Marcello was unable to tell the Tribunal, when asked, whether Mr Rigava is a Level 2 or Level 3 support coordinator. The Tribunal was later informed that Mr Rigava is a Level 3 Specialist Support Coordinator.[47] Mrs Marcello was unaware as to whether Mr Rigava had previously managed a case like Mr Marcello’s or a client with high care needs like Mr Marcello’s. Mrs Marcello said that Mr Rigava had been recommended to her by the NDIA.[48]
[45] Refer to HTB4/45.
[46] Refer Transcript at P-188.
[47] Refer to NDIA’s Closing Submissions at P-8.
[48] Refer to Transcript at P-188.
In relation to ensuring that there are appropriately trained support workers to provide Mr Marcello with the high level of care he needs, Mrs Marcello told the Tribunal at the hearing, “I’m just hoping that we will be provided enough carers to take care of Gerard”. Mrs Marcello said that she had not done any planning for Mr Marcello to return home. When asked why she had not done so, Mrs Marcello said, “Because like I said, when I was asking the registered nurses in the hospital they said at that time they said “Only the registered nurse can handle the trachy”, so I said I can do the other stuff like, you know, cutting his nails, wiping his face, cleaning his - give him oral care and massage him, so I thought by doing that, the other carers or support workers can look after the other areas”.[49]
[49] Ibid at P-180.
In Ms Haylett’s Report and Ms Haylett’s Letter, she makes recommendations for the types of supports Mr Marcello would require for home-based care. At the hearing, Ms Haylett told the Tribunal she had undertaken an environmental assessment to determine the suitability of Mr and Mrs Marcello’s home. Ms Haylett gave evidence that three people would be required to assist if Mr Marcello needed to be transferred, by ambulance, to the Hospital. However, Ms Haylett acknowledged that she had no experience in arranging care rosters for high needs patients, and was not aware, until this was put to her at the hearing, that Mr Marcello had suffered episodes of pneumonia. It was not evident to the Tribunal that Ms Haylett had, before the hearing, turned her mind to and engaged in an active consideration of the practicalities and complexities of having a person with Mr Marcello’s high needs and vulnerability, met through a home-based care model or arrangement, compared to other types of care models or arrangements such as in a residential care facility.
The opinions expressed by Ms Francis in her Report took, as given, the fact that Mr Marcello would be returning home to live with Mrs Marcello. Ms Francis describes that the “Purpose” of her Report is, “[t]o identify support needs and provide detailed information in how these support needs are met for the purposes of care planning in the community”.[50] Ms Haylett’s Report is focussed on an assessment as to whether the particular home that Mr and Mrs Marcello own in Blacktown would accommodate the intended home-based care of Mr Marcello.
[50] Refer to HTB1/1.
At the hearing, Mrs Marcello was questioned about the arrangements she intended to have in place to detect and address any serious infections that Mr Marcello may develop. Mrs Marcello answered, “...in the hospital I can see difference in breathing or if his (tracheostomy) is dislodged. And I usually will inform the nurse. If Gerard is at home, obviously I will keep a close eye on Gerard”.[51]
[51] Refer to Transcript at P-181.
The Tribunal notes that Mrs Marcello’s evidence regarding her capacity and willingness to manage Mr Marcello’s tracheostomy has changed over time, as follows:
(a)in Mr Marcello’s Statement made in September 2021, she states that Mr Marcello would need 24/7 registered nursing care at home because his tracheostomy care is “most difficult”;
(b)between the second and third days of the hearing, Mrs Marcello lodged a Further Supplementary Statement stating that she was willing to be trained to help with tracheostomy care for eight hours per day involving lifting his head and checking the tubes while he was being turned; and
(c)at the hearing, Mrs Marcello gave evidence that she intended to have training to assist in tracheostomy management. However, Mrs Marcello admitted that she had not made any enquiries about getting tracheostomy management training.
While Mrs Marcello gave evidence of her willingness to learn to assist in the tracheostomy care of Mr Marcello, the Tribunal is not persuaded by this evidence, given her lack of any progress to date in doing so. The Tribunal notes that at the time of, and leading up to, the hearing, Mrs Marcello was unemployed and not visiting Mr Marcello from which it can be inferred that she had ample time to undertake such training. The Tribunal formed an impression that Mrs Marcello lacks confidence in her ability to assist with Mr Marcello’s tracheostomy care, as reflected in her earlier statement that it would be “most difficult”, seeking instead, to rely upon nursing supports – see paragraph [‎41].
Mrs Marcello later changed her evidence to indicate her intention to undertake training in tracheostomy care. However, the Tribunal does not accept her subsequent evidence and considers that Mrs Marcello has a propensity to change her evidence if she considers that it will improve her prospects of success in this application, as she admitted doing in respect of the issue about whether she was vaccinated against COVID-19 – see paragraph [135] of these Reasons for Decision. The Tribunal is not satisfied, despite Mrs Marcello’s oral evidence at the hearing, that she will follow through on her stated commitment to be trained to attend to Mr Marcello’s tracheostomy care.
Barry also gave evidence of his willingness to learn to assist in the tracheostomy care of Mr Marcello. However, Barry is employed on a full-time basis and lives with his wife and two young children under the age of five. He lives in a suburb which is 28km by car from the suburb where Mr and Mrs Marcello’s home is located. Barry states that it takes about a 30 to 45 minutes to drive to his parents’ house. Barry gave evidence that before the COVID-19 restrictions were in place, he was only able to visit Mr Marcello at the Hospital (which is about one kilometre from Mr and Mrs Marcello’s home) once a week on Saturday nights after his son had been put to bed. The Tribunal finds that Barry’s opportunity to provide any significant care to Mr Marcello, given the location of his home and his work and family responsibilities, would be limited, as it has been in the past.
In Mr Marcello’s Closing Submissions, Mr Liu contends as follows:
(a)the NDIS Act does not include any requirement that precise care plans are in place for a support to be delivered, and refers to the need to prepare the SOPS with the participant, noting s 33(3) of the NDIS Act, which provides (underlining added) “[t]he supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally”;
(b)the NDIS Act does not require a participant requesting reasonable and necessary supports to become a provider of those supports, by creating their own specific “care plan” with a view to “overseeing” the safe delivery of their requested supports;
(c)the Requested Supports will be provided by registered NDIS providers who must comply with specified standards; and
(d)the rostering, provision and continuity of support, risk management, and the oversight of Mr Marcello’s care is not the responsibility of Mrs Marcello.
In relation to Mr Liu’s first point in paragraph [77(a)], the Tribunal does not accept the reference to word “described generally” in s 33(3) relieves a participant from describing a support with enough particularity to enable the Tribunal to fulfil its responsibility to consider the matters set out in s 33(5) when deciding whether to approve a SOPS that includes the requested supports. The description of the supports must allow for the Tribunal to undertake a proper assessment of whether the criteria under s 34(1) of the NDIS Act are met or whether Rule 5.1(a) applies. For the Tribunal to be able to assess whether the Requested Supports in this case are likely to cause Mr Marcello harm in this complicated context, it is critical to know who will be overseeing the medical, nursing, and other care of Mr Marcello, and what the care plan is for his home-based program in broad terms, from which the Tribunal’s assessment may commence. For this reason, the Tribunal rejects Mr Liu’s contention.
Similarly, the Tribunal considers Mr Liu’s second contention in paragraph [77(b)] to be misconceived because it overlooks the task of the Tribunal as outlined in the last paragraph.
Mr Liu referred the Tribunal to guidance issued by the NDIS Quality and Safeguards Commission entitled “NDIS Practice Standards and Quality Indicators” (Guidelines).[52] Mr Liu made submissions in reference to Version 3 of those Guidelines. A new version of the Guidelines was issued in November 2021, although it is not substantially different from version 3 except that it includes a new NDIS Practice Standard in relation to “emergency and disaster management” intended to address the planning required by providers to prepare, prevent, manage, and respond to emergency and disaster situations whilst mitigating risks to and ensuring continuity of supports critical to the health, safety, and wellbeing of NDIS participants.[53]
[52] Refer to National Disability Insurance Scheme (Provider Registration and Practice Standards) Amendment (2021 Measures No. 1) Rules 2021 (Amending Rules), and the National Disability Insurance Scheme Legislation Amendment (Quality Indicators) Guidelines 2021 – NDIS Practice Standards and Quality Indicators | NDIS Quality and Safeguards Commission (ndiscommission.gov.au)
[53] Refer to Schedule 1 – Core Module, Part 3 – Provider governance and operational management, of the NDIS Practice Standards.
Specifically, Mr Liu contends as follows:
(e)the Guidelines establish that risk is a normal part of service delivery, and that the responsibility for managing and planning for risk in a way that accommodates a participant’s circumstances is a matter for the provider, and not the participant;
(f)the concerns expressed by the Tribunal are specifically addressed by the regulatory scheme;
(g)the Guidelines address safe support delivery, including in the home, and protocols for medical emergencies; and
(h)other clauses address matters such as medical waste management, infection control and tracheostomy management.
Mr Liu contends that only providers, who have undergone and passed the registration and certification audit process, can provide the class of supports comprising the Requested Supports. He contends that the Tribunal must proceed on the basis that, if approved, the Requested Supports will be delivered by providers who have passed the certification process.
The Tribunal acknowledges that Mrs Marcello and Barry have both expressed their intentions to be involved in Mr Marcello’s care at home. However, given Mr Marcello’s profound disabilities and resulting acute vulnerabilities, the Tribunal considers it amiss that there have been no substantive enquiries made or planning commenced by Mrs Marcello, or Barry, to ensure that Mr Marcello will have adequate supervision in place, or availability to an adequate level of support workers and registered nurses, to ensure he is not likely to suffer harm if he is transferred to home-based model of care. Having regard to Mrs Marcello’s Statement and oral evidence, discussed in more detail below, the Tribunal is not satisfied that she has genuinely engaged, in any meaningful way, with the complex requirements that will be necessary to put in place, to ensure the effective sourcing of and coordination of services and staff, including arrangements, such as contingency plans, to ensure that unplanned staff absences are adequately addressed.
As mentioned above, Mrs Marcello has claimed she intends to rely on a GP to assist in assessing Mr Marcello’s condition. But Mrs Marcello has not approached a GP to discuss that proposal. This raises grave concerns for the Tribunal in the context of Mr Marcello being a person who is not able to communicate or move and given his recent life-threatening episodes of pneumonia. The Tribunal has no doubt that Mrs Marcello is a loving and dedicated wife and Barry, a loving son. However, the Tribunal considers they each displayed either a lack of engagement with or appreciation of the realities, practicalities and complexities associated with Mr Marcello being cared for under a home-based model of care.
With no disrespect intended toward Mrs Marcello or Barry, the Tribunal is not at all confident that Mr Marcello would be safe under the stewardship of Mrs Marcello and Barry. Under the proposed home-based model, Mrs Marcello (perhaps with some assistance from Barry) would be instrumental in providing key instructions to service providers and support workers in relation to how the Requested Supports should be accessed and implemented. Mrs Marcello and Barry will be called upon to make critical decisions affecting Mr Marcello at times when things do not go to plan, such as at times when the agency is unable to source sufficient staff to fill all care or nursing shifts, or at times when his health deteriorates, and a decision needs to be made as to whether he requires hospitalisation.
The Tribunal accepts the NDIS Quality and Safety Commission regulates NDIS-registered services providers and that there are practice standards and quality indicators in place to address risks, such as the ones referred to by Mr Liu. However, the Tribunal is not satisfied that the mere existence of such regulatory scheme is sufficient to ensure that, in practice, those practice standards and quality indicators will be met, particularly in the current climate referred to in paragraph [92] and [99] below.
The Tribunal finds that no individual person or entity has been identified to oversee Mr Marcello’s overall medical, nursing, and support care for a home-based model of care. The Tribunal finds that there is no care plan for Mr Marcello prepared by and signed off by such a person or entity. This has eroded the Tribunal’s confidence that Mr Marcello will be cared for safely and with appropriate medical, nursing, and other arrangements in place for a home-based care model.
The Tribunal is satisfied that Rule 5.1(a) of the Supports for Participants Rules applies to Mr Marcello, being that the Requested Supports facilitating a home-based care model is likely to cause Mr Marcello harm, because the planning and arrangements for the supervision of Mr Marcello’s medical, nursing, and support care, at the present time, are inadequate.
Likelihood and consequences of rostering complications
The NDIA has raised the likelihood of rostering complications arising in relation to a home-based model of care for Mr Marcello. Such complications arise in the context of Mr Marcello’s status of being unvaccinated against COVID-19, and also due to reported general staff shortages.
At the hearing, Dr Strathdee gave evidence that Mr Marcello was not vaccinated against COVID-19. He told the Tribunal that Mrs Marcello would need to provide her consent for that vaccination to take place, and that she had not done so. Dr Strathdee said he had not discussed the issue with her.

Dr Strathdee clinical notes show that on 20 October 2021 (coinciding with the second day of the hearing of this application), Mrs Marcello requested a COVID-19 vaccination exemption from Dr Strathdee, in respect of Mr Marcello, because she said she was worried that his current medical condition made vaccination unsafe for him.[54] Dr Strathdee did not meet Mrs Marcello’s request, because he considered that Mr Marcello did not meet the criteria for a medical exemption. Dr Strathdee notes indicate that this was discussed with Mrs Marcello at the time they had the conversation on 20 October 2021.[55]
[54] Refer to Transcript at P-143.
[55] Ibid.
Ms Roberts contends, in the NDIA Closing Submissions, that the fact that Mr Marcello is unvaccinated may complicate rostering of staff. Ms Booth gave evidence at the hearing, which the Tribunal accepts given her extensive industry participation and experience, that Mr Marcello’s unvaccinated status may create a problem with rostering of support and nursing staff within a home-based care model.
At the hearing, Ms Francis was asked what risk there would be to Mr Marcello if a carer was unable to attend a shift to which she responded (emphasis in bold added):[56]
…would be at a “very high risk of developing pressure areas, both from being unable to be repositioned within the bed, at risk of pressure areas from not being able to change the incontinence pads that he would be wearing, and the moisture related to that could degrade his skin quite quickly when not changed. He would be at risk of – if they did try to complete the manual handling without one of the carers, the – the tracheostomy site and tubing would be at risk, and I guess the risks around that would be best explained by an RN who would be specialised in that space. They would be the main risks for him. Pressure areas can be quite significant and they can deteriorate extremely quickly, significantly affecting someone’s quality of life and increasing their risk of infection and potential adverse outcomes for them, so that’s why we try to prevent them. The easiest way to treat them is to prevent them in the first place”.
[56] Ibid at P-93.
Ms Francis gave evidence that she had, “hoped that the company that they went with would have access to a larger pool… to allow for the gaps in the service delivery to be filled”.[57]
[57] Ibid at P-89.
The Tribunal notes that no service provider has been identified by Mrs Marcello and there was no evidence before the Tribunal for it to have any surety that gaps in service delivery would not arise or if they did, that there would be an adequate contingency plan in place to address any rostering complications.
At the hearing, Ms Miranda gave evidence that if Mr Marcello remained unvaccinated, this would affect the way in which he was treated.[58] Ms Miranda said, “In my clinical experience, Mr Marcello needs at least one person with him all the time to keep that tracheostomy open because that is his airway”.[59]
[58] Ibid at P-109.
[59] Ibid at P-114.
Ms Miranda was asked whether Mr Marcello would be safer in an environment such as an aged care facility where there were fulltime nurses on staff. Ms Miranda answered in the affirmative and said it could be safe at home if the same amount of care could be provided at home, but, “where there is a 24-hour care provided, yes, that would be better for him”.[60]
[60] Ibid.
In the NDIA’s Closing Submissions, Ms Roberts contends that, “no providers have been identified or arranged by the applicant’s representatives, and there is no evidence to give comfort that the significant potential harms to the applicant of a gap in scheduled care could be avoided”.[61] In Mr Marcello’s Closing Submissions, Mr Liu, sought to downplay this concern by stating it is, “answered by the parts of the statutory scheme regulating providers for the classes of supports requested by the applicant”.
[61] Refer to NDIA’s Closing Submissions at [44].
Ms Booth gave evidence at the hearing about current nursing and care workforce shortages in NSW, and the Tribunal accepts her evidence given her extensive industry participation and experience. The Tribunal finds that the prospect of staff shortages is quite likely. Ms Booth gave evidence that if Mr Marcello was cared for at home, and someone is unavailable for a shift, the only option may be to transfer Mr Marcello to hospital or for Mrs Marcello to manage his care at home.[62]
[62] Refer Transcript at P-213.
Mrs Marcello was questioned by the Tribunal about what she proposed to do if she experienced staff shortages and shifts were unable to be filled. The Tribunal notes the following exchange:[63]
Tribunal: What are you going to do, to put it in very simple terms, if you were to succeed in this case today and your husband is returned to your home, and you can’t get the support workers, or the registered nurse to fill that roster of care, what are you going to do?
Mrs Marcello: When you said they can’t view the roster of care, is it permanent or just like when they are sick, the report they can’t come, that they - - -
Tribunal: Well it could be for a shift, or it could be for a number of shifts, or it could be for a period of time. But what’s your plan, have you developed a plan about what you’re going to do?
Mrs Marcello: If they are reporting – they couldn’t come, obviously we will ask for replacement. But I will be there to take care of Gerard until they get the replacement.
Tribunal: And if there is shortages that continue and are persistent, what are you going to do?
Mrs Marcello: I will get my family members, I would talk to them and at least get them to help, to reposition Gerard.
[63] Ibid at P-187.
The Tribunal finds that Mrs Marcello could not be relied upon to step in to cover unfilled support worker shifts. Apart from lacking the necessary qualifications and skills to do so, Mrs Marcello’s evidence is, which the Tribunal accepts, that she is unable to undertake any manual handling tasks. Mrs Marcello would, at those times, be wholly dependent upon the willingness and availability of other family members, not residing with her and Mr Marcello, to assist her to reposition Mr Marcello. Barry also states that Mrs Marcello’s “health has significantly declined due to the stresses we have experienced”.[64] With all due respect to Mrs Marcello, the Tribunal is not satisfied that she has the capacity for critical thinking and problem-solving when things do not go to plan and that, instead, she is likely to become distressed.
[64] Refer to THB5/67.
Similarly, the Tribunal finds that Barry could not be relied upon to step in to cover unfilled support worker shifts. Apart from lacking the necessary qualification and skills to do so, Barry has limited capacity as he (and his wife), have responsibility for two children under the age of five, works full-time, lives about 28 km from Mr and Mrs Marcello’s home and by Barry’s own evidence, the events involving his father have had a psychological impact upon him. Barry states that he has “been seeing a psychologist to help me cope with my father’s injury, as well as all of the stresses that have come with it”.[65] Barry gave evidence that when he was visiting Mr Marcello previously, he would do so only once a week on Saturday evenings.[66] The Tribunal is not satisfied that Barry would be readily available when things do not go according to plan, and that he has also demonstrated that the stress of being confronted with what is happening to his father has had a psychological impact upon him, which may affect Barry’s objectivity and critical-decision making skills at those critical times.
[65] Ibid at [5].
[66] Ibid at [14].
The Tribunal is of the view that Mr Marcello’s unvaccinated status has the potential to pose significant problems with rostering. Further, the Tribunal considers that Mr Marcello, as an unvaccinated person, will be at an unacceptable increased risk of contracting COVID-19 because, according to Mrs Marcello’s evidence, Mr Marcello will receive regular visits from family members, friends, and church members at their home, with the intention that they will sit with, pray, and sing with Mr Marcello, as foreshadowed by Mrs Marcello.
The Tribunal considers that the provision of home-based care supports for Mr Marcello that facilitate him spending time family members, friends, and church members, sitting, praying, and singing, may also pose a risk to any person who is immunocompromised, specifically, Mr Marcello infecting others with the Superbugs that are colonised within his body as discussed in paragraph [142].
At the hearing, Dr Strathdee gave evidence that in hospital, they deal with “complications of paralysis, severe impairments to mobility and are good at caring for things like preventing pressure sores, preventing injuries, those sorts of things”. He acknowledged the risk in relation to this matter but said that it “probably would be heightened in the community and at an aged care facility as well”. Dr Strathdee expressed doubt about how well support workers providing support in the home would deal with those complications, while noting that in an “aged care facility there’s lots of patients in a similar situation, maybe not as severely debilitated as [Mr Marcello] but certainly patients who need pressure care and those sorts of things”.[67]
[67] Refer to Transcript at P-155.
The Tribunal notes Clause 15 of Schedule 1 of the NDIS Practice Standards deals with “human resource management” and provides that “[e]ach participant’s support needs are met by workers who are competent in relation to their role, hold relevant qualifications and have relevant expertise and experience to provide person‑centred support”. However, the mere fact that service providers may have a responsibility to fill the shifts on a roster, does not allay the Tribunal’s concerns that in practice, Mr Marcello is quite likely to be left without trained nursing and care support for some shifts, given the state of the current COVID-19 pandemic, his unvaccinated status, and nursing and care staff shortages in New South Wales, as referred to by Ms Booth.
The Tribunal finds that rostering complications are likely to arise if Mr Marcello is cared for at home due to his unvaccinated status and due to reported staff shortages in New South Wales. The Tribunal finds such rostering complications would result in harm to Mr Marcello for the reasons set out above. This is a further reason why the Tribunal is satisfied that Rule 5.1(a) of the Supports for Participants Rules applies to Mr Marcello, being that the Requested Supports facilitating home-based care for Mr Marcello are likely to cause harm to Mr Marcello.
Mr Marcello’s regular and frequent need for hospitalisation and likely difficulties with transfers
The Tribunal finds that Mr Marcello will require regular and frequent hospitalisation as the result of the following:
(a)requirement for three-monthly replacement of Mr Marcello’s nasogastric tubing;
(b)the likelihood he will suffer from recurrent infections, including severe pneumonia, requiring urgent medical treatment, such as intravenous antibiotics; and
(c)the possibility he will need to be transferred to hospital when it is not possible to roster on trained staff.
Dr Strathdee told the Tribunal that every three months, Mr Marcello requires a chest X-ray to facilitate the replacement of Mr Marcello’s nasogastric tube. Dr Strathdee gave evidence, which the Tribunal accepts, that Mr Marcello would need to go to hospital for the X-ray to be performed. There is no evidence before the Tribunal to indicate that a plan has been devised to facilitate the transfers required so that Mr Marcello can continue to have those regular medical procedures, nor does it seem that any consideration has been given to the risk and stress it would expose Mr Marcello to by undertaking those regular home to/from hospital transfers.
At the hearing, Dr Strathdee also told the Tribunal that Mr Marcello has had pneumonia at least four times, over a period of eight to nine months. When asked whether Mr Marcello was likely to contract pneumonia again in the foreseeable future, Dr Strathdee said that Mr Marcello’s stroke has “affected his swallow”.[68] He said that Mr Marcello is fed by a feeding tube and is at risk of aspirating. Dr Strathdee gave evidence that Mr Marcello does not have the normal reflexes to stop food or saliva going into his lungs, so he cannot protect his airways. He said this places Mr Marcello, “at constant risk of having an aspiration pneumonia”.[69] Dr Strathdee told the Tribunal, and the Tribunal accepts, that when Mr Marcello’s pneumonia is severe, he requires intravenous treatment which is only available in hospital. Dr Strathdee remarked, “Will it happen again? Maybe. Can I know that for certain? Not really. Is the trend certainly bad, like, four in eight months? Yes”.[70]
[68] Ibid at P-146.
[69] Ibid.
[70] Ibid.
When asked how Mr Marcello’s pneumonias were diagnosed, he indicated that “most of the episodes of pneumonia have been picked up when his temperature starts to drop” which is usually followed by a reduction in oxygen levels, as detected by “nursing assessment”, that is, while in hospital, Mr Marcello’s vital signs are measured a number of times a day.[71] Dr Strathdee referred to Mr Marcello’s episode of pneumonia in September 2021, when he called Mrs Marcello because he thought Mr Marcello would die. Dr Strathdee gave evidence that as Mr Marcello has “very low physiological reserve and cannot cough”, he relies on nursing staff suctioning to clear his secretions. Dr Strathdee said this is “very dangerous for him”. Dr Strathdee said that Mr Marcello is usually “acutely ill” for two to three days.
[71] Ibid at P-144.
Dr Strathdee gave evidence that, in his view, if Mr Marcello suffered an episode of pneumonia while being cared for at home, he would almost certainly need to be transferred to hospital if he was to survive. Dr Strathdee opined that if Mr Marcello was being cared for at home, it would be difficult to “easily pick up on infection occurring” and to transfer him to hospital to treat the condition.
At the hearing, Ms Miranda gave evidence that if Mr Marcello’s “oxygen requirements increase and if he developed some infection he would probably be required to come into hospital”.[72]
[72] Refer to Transcript at P- 112.
In Mr Marcello’s Reply Closing Submissions, Mr Liu contends that the Tribunal should reject the NDIA’s submissions suggesting that the Requested Supports should not be approved as reasonable and necessary simply because Mr Marcello may “get recurrent infections” and may need to be transferred from home to hospital which “may cause the [him] suffering”.[73] Mr Liu contends that the relevant assessment should focus on the support, noting “many participants are unwell and require transfer to hospital”.[74]
[73] Refer NDIA’s Closing Submissions at [46] to [54].
[74] Refer to Applicant’s Reply Submissions dated 16 November 2021 at [30].
The Tribunal rejects Mr Liu’s contention and considers that the frequency at which it is likely that Mr Marcello will need to be transferred to hospital, and the likely implications on Mr Marcello of those transfers, is a relevant factor to be taken into account when assessing Rule 5.1(1)(a) of the Support for Participants Rules in Mr Marcello’s case. Those matters relate to whether the provision of, and funding for, a home-based model of care for Mr Marcello, is likely to cause him harm. In particular, the Tribunal is mindful of the frequency with which Mr Marcello has suffered severe episodes of pneumonia over the last year, a matter that was not disclosed by Mrs Marcello or Barry in their witness statements, requiring intravenous treatment only available in hospital (based on the evidence of Dr Strathdee which the Tribunal accepts). This would require transfer to hospital by ambulance. Such transfers may involve lengthy delays based on the evidence of Ms Booth, as detailed in paragraph [‎121]. The Tribunal consider that such delays would present an unreasonable risk to Mr Marcello by him not being able to access the medical treatment he would require in a timely manner.
The Tribunal is satisfied that an inability of Mr Marcello to receive urgent medical treatment and supervision at a time he is suffering from respiratory issues caused by severe pneumonia or accidental dislodgement of his tracheostomy tube, is likely to have serious consequences for Mr Marcello given his particular respiratory vulnerabilities, causing him likely harm or may result in his death.
A further reason why the Tribunal is satisfied the Rule 5.1(a) applies is that it may be difficult for the support workers and the nurse (proposed to attend upon Mr Marcello eight hours per week), to detect the onset of pneumonia if he is being cared for at home. By comparison, if Mr Marcello is cared for in a residential care facility, he would be checked on a regular basis by nursing support available on a 24/7 basis.
At the hearing, Ms Booth gave evidence that the transfer of Mr Marcello may take time and would involve waiting for a second ambulance crew (to complete the transfer),[75] and could result in Mr Marcello then waiting in the back of an ambulance for admission.[76] Dr Strathdee also gave evidence that transferring unstable patients involves risk,[77] and he would not expect Mr Marcello to be prioritised for ambulance transfer .[78] The Tribunal is of the view this factor is particularly pertinent given the current and foreseeable stress on the NSW ambulance service, due to the COVID-19 pandemic.
[75] In Ms Haylett’s Report, she states that due to the steep driveway at Mr and Mrs Marcello’s home, at least three people must be available when Mr Marcello was moved from the ambulance to the house to ensure the stability of the ambulance stretcher and to support Mr Marcello and his equipment – refer to HTB2/13.
[76] Refer to Transcript at P-213.
[77] Ibid at P-148.
[78] Ibid at P-163.
Ms Booth also gave evidence that she had observed Mr Marcello had laboured breathing during moves in the Hospital, even in the bed, which she considered could be a sign of pain.[79]
[79] Ibid at P-214; Exihbit R2/2
When Dr Strathdee was asked at the hearing if Mr Marcello may need to be transferred to hospital if he becomes acutely unwell, he indicated there is risk in moving an acutely ill patient and that “an unstable patient is generally not transferred”. He was also concerned that it is not clear whether Mr Marcello is in pain, and that transfers of very ill patients were usually safest to avoid if possible.[80]
[80] Refer to Transcript at P-145.
There are also significant pressures on the NSW Ambulance service impacting on its capacity to respond. Specifically, Ms Booth gave evidence at the hearing that there are currently State-wide issues with ambulance delays, due to long wait-times, which is also known as “banking” at emergency departments. Ms Booth gave evidence that ambulances cannot unload sick patients, due to no bed availability, and that any ambulance bookings would need to be made well in advance.[81]
[81] Refer to THB8/446.
Dr Strathdee confirmed that Mr Marcello has been X-rayed in the hospital, both by mobile X-ray at his bedside and in the X-ray department. He confirmed that every three months, a chest X-ray needs to be undertaken to facilitate his nasogastric tube being changed.[82] This could be done using a bedside mobile X-ray machine while he is in the ward. Dr Strathdee said that Mr Marcello had a mobile chest X-ray in September 2021 when there was concern that he has pneumonia, and subsequently, a CT scan of his chest and stomach in radiology as they were not “100 percent” sure what was going on.[83]
[82] Refer to Transcript at P-148.
[83] Ibid at P-149.
With respect to a nasogastric tube change, Dr Strathdee told the Tribunal he has never heard of a nasogastric tube being changed at home and he said that:[84]
…there’s a risk that you miss where the tube goes, so the X-ray is to confirm the positioning of the nasogastric tube. As the name suggests, gastric, we’re trying to get it into the stomach. It is a fairly blind procedure so you just feed the tube down through the nose and hope it goes into the stomach. Normally you ask patients to coordinate their swallow so that it sort of is guided into the right position. In somebody like Gerard though obviously he can’t do that so there would be a risk of it going into his lungs. If that happened and you didn’t check the position and started feeds going into the lungs, obviously that could be catastrophic.
[84] Refer to Transcript at P-149.

The second mandatory criterion under s 34(1)(b) requires the Tribunal to be satisfied that the Alternative Supports will assist Mr Marcello to undertake activities, so as to facilitate his social and economic participation. Again, this is a complex matter given that Mr Marcello’s is not capable of undertaking any activities, given his persistent state of unconsciousness.
The NDIA has granted Mr Marcello access to the scheme, so the Tribunal will undertake consideration of s 34(1)(b) in the context of a person who is wholly inactive. In that context, the Tribunal considers that the Alternative Supports will facilitate Mr Marcello being transferred from the Hospital to a residential care facility, within which he will become a permanent resident. The Tribunal is satisfied that by Mr Marcello becoming a party to a resident agreement with a care facility, or engaging a tracheostomy nurse, constitute economic participation, and that s 34(1)(b) is met in respect of the provision of the Alternative Supports.
Section 34(1)(c) – value for money
The third mandatory criterion under s 34(1)(c) requires the Tribunal to be satisfied that the Alternative Supports represent value of money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative (comparable) supports. Rule 3.1 of the Supports for Participant Rules sets out matters the Tribunal is to take into account.
The NDIA contends that if the Hospital concludes that it is appropriate for Mr Marcello to be discharged, then he should be accommodated in some form of supported residential care (likely, aged care).[96] The NDIA highlights Ms Booth’s evidence that “[s]afety wise, I actually think it would be much better for this poor man to have some form of supportive care in a residential facility”.[97] Dr Strathdee gave evidence that no care option was entirely safe for Mr Marcello but he considered providing care for Mr Marcello in a residential care facility was less risky than him being cared for at home.[98]
[96] Refer NDIA’s Closing Submissions at paragraph [55].
[97] Ibid at paragraph [56] and Transcript at P-213.
[98] Ibid at paragraph [57] and Transcript at P-153.
Since Mr Marcello suffered a stroke, Mrs Marcello and Barry have been resistant to the idea of Mr Marcello being cared for within a residential care facility and they have not endeavoured to explore this as an option for Mr Marcello. Mrs Marcello has not allowed for Mr Marcello to be receive a comprehensive Aged Care Assessment Team (ACAT) assessment under the Aged Care Act 1997 (Cth). Mrs Marcello told the Tribunal at the hearing that if Mr Marcello was placed into a residential care facility, the nearest one available was (possibly) about two hours from her house by public transport and this was a problem for her, because she did not drive.[99] As already mentioned, Mrs Marcello and Barry hold concerns that Mr Marcello will be not be cared for adequately in an aged care facility and that at his age, he should not be living in in an aged care facility.
[99] Refer to Transcript P-34-35. Mrs Marcello was asked whether there was any reason why Mrs Marcello was unable to learn to drive, and she said there was not.
Mr Liu, on behalf of Mr Marcello, contends that as a “younger person”, being under the age of 65, Mr Marcello should not be in a residential aged care. Mr Liu relied upon the Royal Commission into Aged Care Quality and Safety Final Report issued on 26 February 2021 (Royal Commission Report), wherein, the Commission remarked, “Residential aged care is not appropriate for younger people to live”.[100] Mr Liu referred the Tribunal to the Commission’s recommendation (No. 74) that the “Australian Government should immediately put in place the means to achieve, and to monitor and report on progress towards, the commitments announced by the Australian Prime Minister on 25 November 2019 to ensure that: … no person under the age of 65 years enters residential aged care from 1 January 2022”. The Tribunal notes that part “l” of this recommendation provides for an exception to be made in limited and exceptional circumstances. It states as follows (emphasis in bold added):
…ensuring that a younger person will only ever live in residential aged care if it is in the demonstrable best interests of the particular person (and is independently certified to be such by someone with suitable skills, experience, training and knowledge of the person) in limited and exceptional circumstances such as, for instance, where:
i.the person will turn 65 years within a short period of time, being no more than three months, after entering into residential aged care
ii.the person’s close relatives over 65 years live in a residential aged care facility and the person would suffer serious hardship on being separated from those relatives
iii.an Aboriginal or Torres Strait Islander person between the age of 50 and 64 years elects to live in residential aged care.
[100] Refer Mr Marcello’s Closing Submissions at paragraph [15] and Final Report | Royal Commission into Aged Care Quality and Safety in Volume 3A at, page 367.
Mr Liu highlights to the Tribunal that the Australian Government accepted this recommendation in its “Response to the Final Report of the Royal Commission into Aged Care Quality and Safety”,[101] as reflected in operational guidelines issued by the NDIA entitled “Young people in residential aged care”,[102] wherein the NDIA states as follows (emphasis added in bold):
The Australian Government and the NDIA are committed to ensuring no younger people (under the age of 65) need to live in residential aged care unless they choose to. If you have a home and living goal we’ll help you explore your options to pursue this goal. We’ll start by getting you to complete the Home and Living Supports Request Form. This helps us understand your daily support needs. Then we can discuss the home and living supports that best meet those needs. If you’re thinking about moving into residential aged care you’ll need to talk to your planner or Support Coordinator. They can help find other support options so you don’t have to move into residential aged care if you don’t want to.
[101] Australian Government response to the final report of the Royal Commission into Aged Care Quality and Safety | Australian Government Department of Health
[102] Younger people in residential aged care | NDIS
As a general principle, the Tribunal will take into consideration policy guidance, unless there are cogent reasons not to do so, for instance, such guidance is inconsistent with the relevant legislative scheme.[103] There are no specific provisions within the NDIS Act or NDIS rules pertaining to issues about whether participants under the age of 65 should be provided with (or not) supports to reside in an aged care facility. On that basis, the Tribunal will consider the policy and specifically, has taken into account the Australian Government’s commitment as reflected above, noting that it contains the exception referred to in paragraph [159]. However, the Commission’s recommendation foreshadowed that there may be exceptions. The Tribunal considers that Mr Marcello’s circumstances constitute an exceptional case, given the gravity of his impairments, complexity of his medical conditions, and the fact that he is soon approaching his 65^th birthday, in a matter of months.
[103] Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
Even if provision is made for supports to fund Mr Marcello being cared for in a residential care facility, it is still ultimately up to Mrs Marcello whether she consents to Mr Marcello entering, and living in, an aged care facility. She is at liberty to elect not to access any of the approved Alternative Supports once approved and forming part of Mr Marcello’s SOPS.
On the first day of the hearing, the Tribunal invited both parties to put on evidence in relation to options for residential care facilities able to care for Mr Marcello given his particular needs. Mrs Marcello did not lodge any material in response to this invitation. The NDIA undertook enquiries and lodged with the Tribunal two affidavits by the NDIA’s solicitor with carriage of this proceeding, Ms Emma Letcher-Boldt, containing evidence of:
(a)one aged care facility being unable to assist;
(b)another aged care facility in Blacktown was “moving toward being able to accommodate residents”[104] like Mr Marcello, but was “not quite there in terms of skill mix” yet;[105]
(c)another aged care facility in North Kellyville was a “high care facility with a 24/7 Registered Nurse coverage” but did not have a bed available at the time of responding;[106] and
(d)another aged care facility in Doonside had an appropriate skillset but was currently “too stretched”.[107] The facility advised that its nursing staff may need training in tracheostomy care, and that “if anything changes we can get in touch but I will be on the lookout for some alternative options for you”.
[104] Refer to email of Ms Letcher-Boldt of 26 October 2021 at Exhibit R2.
[105] Refer Affidavit of Ms Letcher-Boldt affirmed on 29 October 2021 at Exhibit R2.
[106] Refer Affidavit of Ms Letcher-Boldt affirmed on 1 November 2021 at Exhibit R2.
[107] Refer Affidavit of Ms Letcher-Boldt affirmed on 28 October 2021 at Exhibit R2.
The NDIA contends as follows in its Closing Submissions:[108]
62.…coordinating a room in aged care for a high-needs patient is a complex process that is normally undertaken by social workers with input from family and others involved in care in a consultative way. Involving the respondent in these discussions would mean that the agency could be involved in conferences about the nursing care to be paid for and how, if nurses with tracheostomy experience were to be sourced from outside a facility’s regular staff, this could be coordinated and funded.
63. Part of the funding provided in the care plan under review was precisely to enable enquiries such as these to happen. Yet despite funding from the respondent; what appear to have been frequent requests from the social work team to the applicant’s family to engage in discussions and encouragement to the applicant’s lawyers from the Tribunal on the first day of the hearing, the applicant’s family members appear to have been reluctant to progress any enquiries into aged care as an option.
[108] Refer NDIA’s Closing Submissions at [62]-[63].
The NDIA contends that the fact that it was able to identify a significant number of facilities within close proximity to the applicant’s former residence, and that some of the responses received to initial enquiries were encouraging, reflects the fact that a viable alternative, to funding care in Mr Marcello’s former home, may be available. The Tribunal accepts this contention and is satisfied that if a proper search was undertaken, and on the basis that Mr Marcello is to be funded to receive services at the aged care facility of a tracheostomy nurse for eight hours per week, that a residential care facility or facilities would be identified from which Mrs Marcello may choose whether to provide her consent for Mr Marcello to enter the facility. As referred to the Tribunal by the NDIA, social workers at the Hospital were able to identify facilities that may be able to support Mr Marcello, notwithstanding that those enquiries appear to have been made with respect to whether those facilities could provide tracheostomy care.[109]
[109] Refer page 2,062 of the summonsed medical records.
The Tribunal also received from the OSA evidence providing an indication about the likely cost involved if Mr Marcello were to enter an aged care facility under his NDIS plan. In an email from the OSA dated 18 October 2021, the OSA states that, as of 30 September 2021, only seven of all NDIS participant’s aged 55+ residing in aged care facilities had a package with total funding in the range of $600,000 and $1,000,000, with the average cost of those seven participants being $719,000. Six of those participants are aged between 55 and 64 and the average total cost of their package is $735,000.
On the evidence, it appears the NDIA does not have a policy of paying all fees and costs associated with residential aged care. In Mr Marcello’s case, and light of his particular disabilities, the Tribunal considers that he should be funded for all out-of-pocket fees associated with the provision of care to him within a residential care facility in a room type which is adequate (that is, no more than required to meet his needs), given the principle of espoused by Justice Mortimer in McGarrigle v National Disability Insurance Agency [2017] FCA 308 as follows:
94. Once a decision is made that the support, as identified and described, is reasonable and necessary, then subject to the other requirements in s 33(5) and s 34, the scheme requires and contemplates that support “will” be funded. In my opinion, that can only mean wholly or fully funded.
This provides an indication that the total annual package of supports facilitating Mr Marcello’s care in a residential care facility, plus the additional cost of tracheostomy nursing service for eight hours per week (plus travel time), is most unlikely to exceed $1m per annum.
The provision of funding to facilitate home-based care for Mr Marcello is a comparable support (putting safety issues aside for a moment). Based on Mrs Marcello projections, home-based care is likely to cost in the vicinity of $1.9m per annum. For this reason, the Tribunal finds that supports facilitating Mr Marcello’s care in a residential care facility and the provision of eight hours per week tracheostomy nursing support (plus travel time), being in the vicinity of $1m, represents “value for money” in that the costs of the Alternative Supports are reasonable, relative to both the benefits achieved and the cost of the comparable supports, being the Requested Supports. Accordingly, the Tribunal is satisfied that s 34(1)(c) of the NDIS Act is met in respect of the Alternative Supports.
Section 34(1)(d) – effective and beneficial
The fourth mandatory criterion under s 34(1)(d) requires the Tribunal to be satisfied that the Alternative Supports will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice. Rule 3.2 and 3.3 of the Supports for Participant Rules sets out the Tribunal is to have regard to current good practice, and it refers to the type evidence the Tribunal might take into account.
If Mr Marcello is provided with care within a residential care facility, the Tribunal is satisfied that the supervision and implementation of Mr Marcello’s care will take place within a sophisticated infrastructure, within which Mr Marcello will have access to 24/7 nursing staff, medical practitioners who regularly visit the facility, permanent care staff, the application of extensive facility protocols including in relation to medical emergencies and hospital transfers, supervision by relevant managers able to make objective and well-informed decisions on Mr Marcello’s behalf, and are subject to audit by the Aged Care Quality and Safety Commission. This is critical given Mr Marcello’s complex care needs and very significant vulnerabilities.
For those reasons, the Tribunal is satisfied that the provision of care to Mr Marcello at a residential care facility will be, or is likely to be, effective and beneficial for Mr Marcello.
Section 34(1)(e) – takes account of informal supports
The fifth mandatory criterion under s 34(1)(d) requires the Tribunal to be satisfied that the Alternative Supports takes account of what it is reasonable to expect families, carers, informal networks, and the community to provide. Rule 3.4 of the Supports for Participant Rules sets out matters the Tribunal is to take into account. The Tribunal considers that the Alternative Supports alleviate the obligations from Mr Marcello’s family and friends. They will be able to visit Mr Marcello, subject to relevant COVID-19 protocols intended for Mr Marcello’s and the other residents’ protection, to spend time with him. In this context, the Tribunal is satisfied that this criterion is met.
Section 34(1)(f) – most appropriately funded through the NDIS
Section 34(1)(f) of the NDIS Act requires the Tribunal to be satisfied that the support under consideration is most appropriately funded through the NDIS and not more appropriately funded though other service systems. Rules 3.5 to 3.7 of the Supports for Participant Rules refer to Schedule 1 which sets out matters the Tribunal is to take into account when assessing this criterion. However, there was no issue raised by the NDIA in relation to this criterion. The OSA provided statistics indicating that there are numerous participants under the NDIS aged 55+ who are funded to reside in a residential care facility under an NDIS plan. The Tribunal is satisfied this sixth mandatory criterion is met.
Finally, the Tribunal is satisfied that Rule 5.1(a) of the Supports for Participants Rules will not apply if Mr Marcello is provided with the Alternative Supports to facilitate his transfer and care within a residential care facility on account of the matters set out in paragraph [171] of these Reasons for Decision.
The Tribunal concludes that each of the mandatory criteria in s 34 (1) of the NDIS Act are met and that the Alternative Supports are “reasonable and necessary supports” and should be included in Mr Marcello’s SOPS.
CONCLUSION
The Tribunal concludes that the Requested Supports facilitating home-based care for Mr Marcello are not “reasonable and necessary supports” because they are not to be funded due to the application of Rule 5.1(a) of the Supports for Participants Rules.
The Tribunal concludes that Mr Marcello’s SOPS should include supports that will facilitate the identification of, and Mr Marcello’s transfer to, a residential care facility able to safety care for his complex and high level of needs, subject to Mrs Marcello and the Hospital authorising his discharge.
Accordingly, The Tribunal sets aside the Decision Under Review and remits the matter for reconsideration with a direction that on or before 11 February 2022, a new statement of supports be approved for Mr Gerard Marcello, with a review date of 20 May 2022, containing the following reasonable and necessary supports:
(a)subject to Mrs Winnie Marcello’s consent to accessing the supports referred to in subparagraph (b) below and Hospital authorising the discharge of Mr Marcello, the provision of, and funding for, 100 hours of services from a suitably qualified social worker, occupational therapist, and/or respiratory, nursing, or other consultant, and a further 50 hours of services from a Level 3 specialist support coordinator, for the purposes of:
(i)identifying a residential care facility with the resources and capacity to safely accommodate and care for Mr Marcello;
(ii)identifying a nursing agency with the resources and capacity to supply nurses able to attend the residential care facility to attend to Mr Marcello’s tracheostomy nursing requirements, in accordance with paragraph [179(b)(ii)] below;
(iii)assisting Mrs Winnie Marcello, and Mr Marcello’s support coordinator, to facilitate all necessary arrangements for Mr Marcello to be transferred to and enter the identified residential care facility before he reaches the age of 65 on 20 May 2022; and
(iv)to develop a care plan for Mr Marcello that applies to him being cared for in the identified residential care facility, and specifically addressing (among other things) the safe facilitation of his regular nasogastric tube changes and other hospital transfers, as required;
(b)subject to Mrs Marcello’s consent to Mr Marcello becoming a resident of the identified residential care facility and the Hospital authorising the discharge of Mr Marcello, the provision of, and funding for:
(i)all out of pocket fees and expenses due and payable by Mr Marcello under the residential agreement entered into between him and the residential care facility, for a room type which is adequate and no more than required to meet his needs (subject to a quote or quotes being provided by identified residential aged care facility); and
(ii)8 hours every week (plus payment for time for any travel required), for a suitably qualified tracheostomy nurse to attend the identified residential care facility to attend to Mr Marcello’s tracheostomy care needs, and to train and/or guide the care and nursing staff at the care facility to attend to those needs when the nurse is not present.
NON-BINDING OBSERVATIONS

The Tribunal makes the following non-binding observations based on its consideration of the evidence before it. While it is not the role of the Tribunal to provide parties with legal advice, this application raises of number of complex issues and decisions about Mr Marcello’s future accommodation arrangements which are time critical because of his age. The Tribunal is of the view these observations may assist discussions about Mr Marcello’s future accommodation and care arrangements.
The Tribunal notes that its decision does not facilitate Mrs Marcello’s and Barry’s wish that Mr Marcello be discharged from the Hospital to be cared for at home. Rather, it facilitates Mr Marcello becoming a resident of an identified residential care facility, should Mrs Marcello provide her consent on his behalf. The Tribunal is mindful that Mrs Marcello may not provide her consent. However, it also notes that s 29(1)(b) of the NDIS Act provides that, among other circumstances, a person ceases to be a participant when the person enters a residential care service on a permanent basis, and this occurs only after the person turns 65 years of age. Mr Marcello turns 65 on 20 May 2022.
Mrs Marcello may wish to carefully consider these matters in consultation with her legal representative, when planning the next steps for Mr Marcello, regardless of whether or not she elects to simultaneously appeal this Decision of this Tribunal to the Federal Court of Australia on Mr Marcello’s behalf.

1.

I certify that the preceding 182 (one-hundred and eighty-two) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker and Member D. Connolly.

......................[Sgd]..........................
Associate
Dated: 4 February 2022

Dates of hearing:

Date last submission lodged:

Counsel for the Applicant:

Solicitors for the Applicant

19, 20 & 29 October 2021

16 November 2021

Mr Thomas Liu

Legal Aid NSW

Counsel for the Respondent:

Ms Clare Roberts

Solicitors for the Respondent:

Clayton Utz

[2022] AATA 162

4 February 2022

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