Marcello and National Disability Insurance Agency

The Administrative Appeals Tribunal considered a dispute between Mr Marcello and the National Disability Insurance Agency (NDIA) concerning the review of a statement of participant supports (SOPS). Mr Marcello, who suffered a pontine stroke resulting in a persistent state of unconsciousness, was seeking significant funding for supports to enable him to be cared for at home, valued at over $1.9 million per annum. The NDIA had previously made an internal review decision that did not include these requested supports.

The Tribunal was required to determine whether the supports requested by Mr Marcello were "reasonable and necessary supports" under section 34(1) of the National Disability Insurance Scheme Act 2013 (Cth). This involved considering whether the supports met the criteria outlined in the Act, specifically whether they should be refused under Rule 5.1(a) of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) due to the potential for harm or risk to others. The Tribunal also had to consider other supports already provided or funded under Mr Marcello's existing SOPS, and his age of 64 years.

The Tribunal's reasoning involved a comprehensive review of extensive expert and documentary evidence, including reports from occupational therapists, nurses, and medical practitioners, as well as evidence from Mr Marcello's wife and son. A significant aspect of the evidence concerned the medical and ethical considerations surrounding Mr Marcello's ongoing care, with his treating physicians expressing concerns about the appropriateness of continuing active treatment given his devastating prognosis and lack of recovery prospects. The Tribunal noted that the hospital's medical ethics committee had been involved in reviewing the situation. Ultimately, the Tribunal found that the requested supports for home-based care were not appropriate in the circumstances, particularly in light of the medical advice regarding Mr Marcello's condition and the potential ethical concerns.

The Tribunal set aside the NDIA's decision under review and remitted the matter with directions. The outcome was contingent on the consent of Mr Marcello's wife and the hospital's discharge approval. The directions included provision for services to assist Mr Marcello's wife in identifying a suitable residential care facility, payment of all out-of-pocket expenses for his residence in such a facility, and the provision of tracheostomy nursing services at the residential care facility.