McGrath and National Disability Insurance Agency

McGrath and National Disability Insurance Agency [2023] AATA 3719 (14 November 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s):2021/6434
Re:Erin McGrath
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:The Honourable Pru Goward AO, Senior Member
Date:14 November 2023
Place:Sydney

Pursuant to subsection 43(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal varies the decision under review of the Chief Executive Officer of the National Disability Insurance Agency (dated 23 May 2023) to include the following reasonable and necessary supports in the Applicant’s plan:
a)    2 hours of psychology and counselling therapy a week;
b)    4 hours per month for yard maintenance in the Applicant’s current living circumstances;
c)    3 hours per week of domestic cleaning;

...............................[SGD].....................................
The Honourable Pru Goward AO, Senior Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – application for recusal – reasonable and necessary supports – value for money – effective and beneficial – reimbursement – specialist disability accommodation – medium term accommodation – decision varied
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43(1)(b)
National Disability Insurance Scheme Act 2013 (Cth) ss 34, 100
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
CASES
BIJD and National Disability Insurance Agency [2018] AATA 2971
McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
National Disability Insurance Agency v WRMF (2020) 378 ALR 449
SECONDARY MATERIALS
NDIS Operational Guidelines Planning
REASONS FOR DECISION
The Honourable Pru Goward AO, Senior Member
14 November 2023
INTRODUCTION

Ms Erin McGrath (the Applicant), is a thirty-six year old woman with a diagnosis of secondary progressive multiple sclerosis (MS), Autism Spectrum Disorder (ASD), psycho-social disability (PTSD and major depressive disorder with anxious distress) and Attention-Deficit/hyperactivity disorder (ADHD).
The Applicant has been a participant of the National Disability Insurance Scheme (the Scheme) since 2020. The National Disability Insurance Agency (the Respondent) approved a Statement of Participant’s Supports (SOPS) for the Applicant on 31 August 2021. She requested an internal review of that decision under s 100(2) of the NDIS Act on 10 September 2021 and also sought review by the Administrative Appeals Tribunal (the Tribunal) on the same day. On 23 September 2021, the Tribunal remitted the matter to the Respondent and pursuant to this order, a plan was approved on 1 October 2021, which included the specification that all supports other than a financial intermediary would be plan managed.
Over the following eighteen months, the parties negotiated further supports. On 12 May 2023, the Respondent filed s 42D Terms of Agreement with the Tribunal, agreed to by the Applicant. On 23 May 2023, the Respondent made a decision on remittal under s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to provide additional supports.
The Applicant sought review by the Tribunal of the 23 May 2023 decision pursuant to s 42D(3) (b) of the AAT Act, the decision under review. There were 19 requested supports contended.
On 21 August 2023, the Respondent agreed to fund increased hours for several therapies already in the Applicant’s Plan and, as noted in the Respondent’s Statement of Facts, Issues and Contentions (SOFIC), the requested hours of speech pathology were agreed, reducing the number of contended supports to 18. These are as follows:
1) Internet connection at property - $1425 ($75 per month for 19 months);
2) Advocacy - $15,243.20 ($190.54 per hour x 80 hours);
3) Transport Funding ($18,720 per annum as well as backdating to Functional Capacity Assessment (FCA) date of 12 September 2022)
4) Additional shadow shifts to the initial 6 hour allowance – $3901.16 (62.75 additional hours x $62.17);
5) Short term accommodation/respite – 28 days;
6) Occupational therapy – 70 hours;
7) Physiotherapy – 2 hours a week including report writing;
8) Psychology/counselling – 2 hours per week including report writing;
9) Music therapy – 2 hours per week including report writing;
10) Speech pathology – 1 hour per week including report writing;
The Respondent agreed to fund 70 hours of speech pathology over the year, plus three hours of report-writing, and consequently this support is no longer in issue.
11) House/Yard maintenance – 4 hours a month;
12) House cleaning – 3 hours per week;
13) Nursing care;
14) Meals – meal prep and delivery – 7 dinner meals per week;
15) Support coordination – 120 hours Level 3;
16) Ophthalmology review – once per year;
17) Increased Social and Community Participation - $5000;
18) Education – Funding for a course - $5000;
19) Reimbursement for accommodation in Doveton (when abandoned by the NDIS) $27,000.
The Applicant was asked at the commencement of the hearing, and agreed, that this was the complete list of requested supports in dispute, 18 in total.
APPLICATION FOR RECUSAL
On 7 September 2023, the Applicant requested that I recuse myself from hearing the case. The Applicant contended the Tribunal’s decision to transfer the case from Deputy President Younes had denied her the right to “ensure that everyone who has been involved with what I personally believe to be deliberate acts to make my life so much more difficult is held accountable in the process”. She claimed that other cases had the same member for both preliminary and final hearings and also referenced the case’s complexity and the amount of time it had been pending, as reasons not to change presiding member. Earlier, the Applicant had expressed concern that the change had occurred without her “permission” and that she and her advocate had not been notified. Further, she felt that I was “unfit to be an impartial judge, and natural justice will not be served if [ I were] overseeing [her] case”. She said I was “a political appointee by the Liberals- …not trained as a lawyer…has made public derogatory statements to those with disability and also poorer than her”.
Accordingly, the Tribunal held an interlocutory hearing on 12 September 2023 to determine whether I should recuse myself in accordance with the Applicant’s wishes.
Although the Respondent took a neutral position on the recusal application, the Respondent sought to assist the Tribunal and the Applicant by outlining the general principles relating to the recusal request. Essentially, a decision-maker must recuse themselves from hearing a case where he or she is biased against one of the parties. The allegation of bias is a serious one and needs to be clearly proven.
The decision-maker may be actually biased against one of the parties, in which case evidence is required that the decision-maker has expressed bias against a party before it. Alternatively, there may be the apprehension of bias, that is, if a fair-minded observer might conclude that the decision-maker would not bring an impartial mind to the decision they are required to make. As the case law makes clear, the party applying for recusal must identify the cause of an appearance of bias and then show the logical connection between that cause and the appearance of partiality.
The Tribunal recognised the importance of upholding the independence of the Tribunal and its decision-makers and ensuring that the parties which appear before it do not determine who should hear their case. This principle is integral to the independence and accountability of the judicial system of which this Tribunal is part.
The Applicant provided no evidence of actual bias, since I had no prior connection with her or her case. The Applicant also failed to demonstrate that I might not bring an impartial mind to her case and, in discussion, understood that the Tribunal was at liberty to change the decision-maker in a case before it, in this case, from a Deputy President to myself.
I made a decision, for reasons given orally during the interlocutory hearing, not to recuse myself and, after further discussion, the parties agreed the substantive matter would proceed.
RELEVANT LEGISLATION
The Respondent relied upon the objects of the National Disability Insurance Scheme 2013 Act (the Act) as set out in s 3, and the general principles as set out in s 4 and 5. It also relied on ss33-35 and 48 of the Act, and that NDIS Support Rules.
Section 34 of the Act requires that each support for which funding is sought be reasonable and necessary. This requires that each must satisfy the following provisions of s 34 (1):
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i)as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The provisions of (a), (b), (e) and (f) are not in dispute. Provisions of (c) and (d) are contested by the parties.
Section 34(1) of the Act is underpinned by the National Disability Insurance Scheme (Supports for Participants) Rules 2013, particularly Part 3, which deals, relevantly, with the assessment of value for money and effective and beneficial and current good practice. The Respondent relied upon Part 3 of the Rules, but also Part 4 (Needs Assessment) and Part 5, which sets out the general criteria for supports, and those which will not be funded.
The Applicant did not formally rely upon any parts of the Act and did not disagree that the relevant sections of the Act were those identified by the Respondent. The Tribunal accepts these to be the relevant parts of legislation.
Other Material Relied Upon
The NDIS Operational Guidelines also provide further detail on how to assess a support as reasonable and necessary.
CASE LAW
The term “reasonable and necessary supports” is not defined in the Act. In the case of McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121, Mortimer J said the term is to be understood in context, referring in particular to s 4(11)
Her Honour noted that each concept (reasonable, and necessary) had its own work to do stating at [91]:
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s34(1)(c) and (f).That is not to say the meaning of each word is exhausted by the factors set out in s34(1):rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.
Her Honour also observed that the phrase reasonable and necessary supports “needs to be understood taking into account what has qualified a person as a participant, and the links between a person’s impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate”.
THE ISSUE
The issue in this matter is whether any of the contested 18 supports, as identified by the Respondent, are reasonable and necessary, satisfying the requirements in s 34 (1) of the Act.
CONTENTIONS
In relation to the 18 requested supports in dispute, the Respondent contended the following with respect to each one, as referenced in the Respondent’s SOFIC. (The Applicant contended that each was a reasonable and necessary support):
Support 1 - Internet connection at property-$1,425 ($75 per month for 19 months).
The Applicant sought ongoing funding for an internet connection on the basis that this was required for a seizure camera. The Applicant states that the seizure camera allows her support team to monitor her and reduce risk. She requires the camera whilst support staff are doing active overnights to prevent harm and to be able to assist immediately in case of emergency.
The Respondent contended this support duplicates other supports (Rule 5.1 (c) because the Applicant’s SIL funding already provides active overnight assistance …with respect to seizures amongst other reasons.
The Respondent also contended that internet access is a day to day living cost which does not meet the requirements of Rule 5.1 (d), Day to day living cost, since this would be incurred regardless of the Applicant’s disability.
Support 2 - Advocacy - $15,243.20 ($190.54 per hour x 80 hours)
The Applicant sought funding for her support worker, Ms Grace Burns’ advocacy in relation to these proceedings. The Respondent relied upon s 200A of the NDIS Act which provides that ‘nothing in this Act permits or requires the Agency to fund legal assistance for prospective participants or participants in relation to review of decisions made under this Act’. The Respondent also relied upon s 34 (1) (f):(Support more appropriately funded through other Support Services)
Support 3 - Transport Funding ($18,720 per annum as well as backdating to FCA date)
The Applicant sought an additional funding for transport in the amount of $18,720 per year, as well as funding backdated to the date of her FCA on 12 September 2022.
The Respondent contended that, at present, the Tribunal cannot be positively satisfied that the reasonable and necessary criteria have been met for this support, Value for Money – s 34(1)(c)
Support 4 – Additional shadow shifts to the initial 6 hour allowance – $3901.16 (62.75 additional hours x $62.17)
The Applicant sought funding for shadow shifts additional to the initial 6 hours training for new support workers which she claimed the Respondent funded in the Applicant’s current plan.
The Respondent contended that, at present, the Tribunal could not be positively satisfied that the reasonable and necessary criteria in s 34 had been met for this support. Further, that staff training is a matter for the provider and so the requirements of s 34 (1) (f) Support more appropriately funded through other Support Services are not met
Support 5 - Short term accommodation/respite – 28 days.
The Applicant sought short term accommodation (STA) support at a ratio of 1:1 and requested that two support workers accompanied her on respite for safety reasons. The Respondent contended that the Tribunal could not be positively satisfied that the reasonable and necessary criteria in s 34(1)(a) Support must assist with goals had been met. Further, the Respondent contended that this support does not meet the requirements of Rule 5.1 (c)- Support duplicates other supports.
Support 6 - Occupational therapy – 70 hours
The Applicant sought 70 hours of occupational therapy per year including report writing. The Respondent contended there was insufficient evidence to demonstrate that the additional hours requested would constitute value for money relative to both the benefits achieved and the cost of alternative supports pursuant to s 34(1)(c) (value for money) or that it would be effective and beneficial pursuant to s 34 (1) (d) (effective and beneficial).
Support 7 - Physiotherapy – 2 hours per week including report writing
The Applicant sought 2 hours of physiotherapy per week including report writing. The Respondent contended that the Applicant had not yet provided sufficient material to demonstrate that the additional funding requested would meet the requirements of s 34 (1) (c) value for Money, that it constitute value for money relative to both the benefits achieved and the cost of alternative supports, or that it would be effective and beneficial pursuant to s 34(1)(d).
Support 8 - Psychology/counselling including report writing
The Applicant sought 2 hours of psychology/counselling per week including report writing.
The Respondent contended that the Applicant had not provided sufficient evidence that the additional funding requested would meet the requirements of s 34 (1) (c) Value for Money, or that it would be effective and beneficial, s 34 (1) (d).
Support 9 - Music therapy
The Applicant sought 2 hours of music therapy per week including report writing.
The Respondent contended that there was insufficient evidence that the additional funding requested would constitute value for money relative to both the benefits achieved and the cost of alternative supports pursuant to s 34(1)(c), or that it would be effective and beneficial pursuant to s 34(1)(d). Further, whether the requested support “meet[s] a threshold which justifies–by reference to the context, objects and guiding principles of the Act and the facts of the case–the expenditure of public funds”.
Support 10 - House/yard maintenance – 4 hours per month
The Applicant sought 4 hours per month of house/yard maintenance. The Respondent contended that Rule 5.1(c)-Support duplicates other supports had not been met.
Support 11 - House cleaning – 3 hours per week
The Applicant sought 3 hours of house cleaning per week. The Respondent contended that Rule 5.1(c) Support duplicates other supports had not been met.
Support 12 - Nursing care – unspecified.
The Applicant sought additional training by a nurse to enable her care team to recognise seizure activity and provide emergency assistance. The Respondent contended that the Applicant had not provided sufficient material to demonstrate that the additional funding requested would constitute value for money relative to both the benefits achieved and the cost of alternative supports pursuant to s 34(1)(c) or that it would be effective and beneficial pursuant to s 34(1)(d). Accordingly, Value for money – s 34(1)(c); Effective and beneficial – s 34(1)(d) had not been met.
Support 13 - Meals – meal prep and delivery – 7 dinner meals per week
The Applicant sought 7 pre-prepared dinner meals per week. These had previously been provided and the Applicant sought this support on the basis that they allow her support workers to monitor her more closely in the same room rather than preparing food in another room, and also ease of use.
The Respondent contended that this support duplicated the Applicant’s current SIL funding in her current plan. Specifically, that she had 1:1 24/7 support and, accordingly, that Rule 5.1(c)- Support duplicates other supports was not met.
The Respondent also contended that the Applicant had not provided sufficient material to demonstrate that the additional funding requested would constitute value for money relative to both the benefits achieved and the cost of alternative supports and therefore the requirements of Value for money – s 34(1)(c); Effective and beneficial – s 34(1)(d) had not been met.
Support 14 - Support coordination – 120 hours Level 3
The Applicant sought 120 hours of support coordination per year.

The Respondent agreed to fund 12 hours of level 3 support coordination and 34 hours of level 2 support coordination. The Respondent contended that the requirements of s 34(1)(c) (Value for Money) had therefore not been met. The Respondent also contended that the Applicant had not yet provided sufficient material to demonstrate that the support requested, being additional hours all at the level 3 skill level, would constitute value for money relative to both the benefits achieved and the cost of alternative supports pursuant to s 34(1)(c).
Support 15 - Ophthalmology review – once per year
The Applicant sought funding for an annual ophthalmology assessment on the basis of the effect her primary disability has on her eyesight.
The Respondent contended that ophthalmology funding is the responsibility of the Department of Human Services, specifically, Medicare, and is more appropriately funded through that service. Accordingly, the requirements of s 34(1)(f)- Support more appropriately funded through other Support Services are not met.
The Respondent relied upon the case of Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 (‘Mulligan’) at 213 [55] to support this contention. In, the Court acknowledged “the need for “mainstream” services to retain responsibility for all people, including those with disability, as an important aspect of ensuring the financial sustainability of the scheme. Considering the intersection of the NDIS and the health system, the [Productivity Commission] recommended that primary care and hospital-based services, and medical and pharmaceutical products, should remain outside the scope of the scheme. This clear intention to delineate the respective responsibilities of the health system and the NDIS is seen in s 34(1)(f) and in the Rules.”
Increased Social And Community Participation
The Applicant sought an additional $5,000 to help her achieve her goals such as "learning new skills, trying new hobbies, going to events and universal recreational activities". These goals are in connection with increasing her independence and having choice and control over what activities she can do with her support workers.
The Respondent contended that the Applicant’s allowance for increased social and community participation has been replaced in her current plan by SIL funding, 1:1 24/7. The Respondent contended that this support duplicated the Applicant’s current SIL funding in her current plan. Specifically, that she has 1:1 24/7 support.
Further, the Respondent contended that, at present, there is insufficient material to positively satisfy the Tribunal that the reasonable and necessary criteria in s 34(1)(c) or (d) have been met.
Education – Funding for a course – $5000
The Applicant sought funding for university education in connection with her goal of “working on her cognition by completing a course such as a diploma of law or IT”.
The Respondent contended that education funding was not the responsibility of the Agency and more appropriately funded by the Victorian Education Department, so that the requirements of s 34(1)(f) -Support more appropriately funded through other Support Services were not met.
Reimbursement for accommodation in Doveton (when abandoned by the NDIS) $27,000
The Applicant sought $27,000 for reimbursement of accommodation in Doveton for the period September 2021- January 2023.
The Respondent contended that the Applicant had not demonstrated that this support was required on the basis that it duplicated SDA and SIL supports accessed by the Applicant over the relevant period.
In a subsequent submission to the Tribunal on 12 October 2023, and after considering the transcript of the directions hearing held on 23 September 2021, the Respondent contended that the Applicant had been permitted to use SIL funding in her core budget “flexibly to address her short term needs until suitable accommodation could be funded”. The Respondent also contended in that same submission and apparently in contradiction, that the requested reimbursement was not the responsibility of the NDIS but of other service providers and therefore did not meet the requirement of s 34(1) (f) of the Act; that payment of rent was a day to day living cost and not permitted by R 5.1 (d) of the Rules; that the funds were “not for rent but for her care in the accommodation to be paid as a ‘provider’” and that SIL funding could be used “for her support needs and was focussed on paying carers…rather than agreeing to pay rent on the Applicant’s accommodation”. Later, the Respondent contended the Applicant had been provided with $50,185.57 for rent, using STA and MTA allowances, which included the relevant period September 2021-January 2023.
BACKGROUND
The Applicant is an earnest and personable young woman who described a childhood of trauma, instability and violence, accompanied by medication with drugs and several admissions (by her parents) to mental health institutions during her teenage years. She completed Year 12 studies but was intermittently homeless from the age of 14-26. She described her mother as possibly narcissistic and as having suffered from Munchausen by Proxy, which the Tribunal understands to be a condition where her mother created symptoms of illness in her children to satisfy her own needs.
The Applicant maintains a friendly relationship with her sister, texts her parents regularly and calls occasionally, but otherwise has little to do with her family, who reside in Queensland.
The Applicant was diagnosed with MS in September 2020, at the age of 33, but maintained employment until April 2021. She ceased driving later in 2021. She is now diagnosed with progressive secondary MS. For the last two or three years she has reported seizures, which her neurologist described as “seizure-like”.
Despite these difficulties, Ms McGrath recently completed a Diploma in Cryptocurrency and now wishes to undertake university studies. She told the Tribunal that she provided advocacy assistance to other people negotiating with the NDIA and clearly found that to be satisfying work. She also enjoys gaming, movies and being with her cat. Her written submissions to the Tribunal were coherent and well expressed and her oral communication during the two-day hearing was excellent. Despite her MS, she was able to maintain excellent focus over the hearing days, although she exhibited signs of temperature dysregulation on the second day. There was no seizure-like activity witnessed during the hearing.
The Applicant self-referred to a neuropsychologist, Ms Nga Yan (Connie) Tse, for a neuropsychological assessment in 2022, expressing concern that her cognitive and neurological functioning was declining. That assessment confirmed mild or moderate reduction in several, but not all, cognitive areas, some of which, including executive functions, were now found to be in the exceptionally low range. Her verbal intellectual skills were assessed as below average, which, the Tribunal notes, was not obvious during the hearing, as the Applicant appeared to grasp the questions and the arguments well and was a decisive and articulate witness.
During the hearing, it became apparent that the Applicant was very anxious about the progression of her MS disease and considered she faced many risks, some of which might be fatal. These risks included: her risk of falls, of dying during a seizure, distracting her driver should she have a seizure while a passenger, and her risk of choking on her saliva. These risks were all referenced during the hearing and while she manifestly held them to be true, they were not always supported by independent clinical evidence.
EVIDENCE
The Tribunal has had regard to various material before it, including:
(a)Respondent’s Updated Statement of Facts, Issues and Contentions (filed 1 September 2023)
(b)Respondent’s Joint Tender Bundle (filed 1 September 2023)
(c)Statement of Kelly Watson dated 12 September 2023
(d)Email correspondence between Applicant and Respondent regarding medium term accommodation filed 13 September 2023
(e)Letter from Associate Professor Chris Plummer dated 19 October 2020
(f)Letter from Associate Professor Chris Plummer to Dr Sabyan Hardjo dated 1 March 2023
(g)Compilation of electricity and gas bills from Applicant filed 17 September 2023
(h)Respondent’s submissions in response to Tribunal’s request for further information filed 12 October 2023
(i)Email from Respondent containing further submissions filed 25 October 2023
(j)Applicant’s closing arguments filed on 1 November 2023
(k)Invoices for Applicants rent filed on 31 October 2023
(l)Email correspondence between Applicant and Tribunal regarding rent (1 November 2023)
Oral evidence
The Tribunal heard oral evidence from the following witnesses:
a)Ms Erin McGrath, the Applicant
b)Ms Sally Cooper, Counsellor
c)Dr Sabyan Hardjo, General Practitioner
d)Ms Kelly Watson, Support Person,
e)Ms Amber Joules, Occupational Therapist
CONSIDERATION
There were 18 requested supports which the Respondent considered were not reasonable and necessary and therefore did not meet the requirements of s 34 (1) of the Act. The Tribunal examines the evidence and makes findings on each proposed support in the paragraphs which follow.
Internet connection at property-$1,425 ($75 per month for 19 months).
The Applicant has sought ongoing funding for an internet connection on the basis that this was required for a seizure camera linked to an IPad. The Applicant stated that the seizure camera allows her support team to monitor her and reduce risk. She requires the camera whilst support staff are doing active overnights to prevent harm and to be able to assist immediately in case of emergency, without being in the bedroom with her while she slept.
The Respondent contended this support duplicates other supports (Rule 5.1 (c) because the Applicant’s SIL funding already provides 24/7 active overnight support for seizure activity. Furthermore, that no evidence of whether cheaper and alternative supports, for example, seizure alerts that do not require internet access, have been considered.
Since the Applicant’s reported increase in seizure-like activity arose frequently in the proceedings as a ground for the requested supports, the Respondent also made the point in cross examination of the Applicant, that medical advice recommending the seizure monitor, which the Applicant advised had been purchased on the advice of her doctor, Dr Sabyan Hardjo, had not been provided to the Tribunal and the more general point that:
“at present, there’s no epilepsy emergency management plan, or other evidence that would assist in understanding the applicant’s support needs…regarding her secondary seizure disorder”.
The Tribunal also notes that there is no medical diagnosis of epilepsy or seizures, her doctor, based on the advice of her neurologist, preferring to describe it as “seizure-like” and “a migraine associated epilepsy type disorder that’s been caused by the MS”.
The Applicant’s OT, Ms Amanda Joules, told the Tribunal, reliant on evidence of her support workers, that:
“I am aware that there’s a seizure monitoring camera that’s currently in [the Applicant’s] room, and she is having a minimum of three seizures per night, as reported back by her support workers”
The Respondent also contended that internet access is a day to day living cost which does not meet the requirements of Rule 5.1 (d), Day to day living cost – Rule 5.1(d.) and would be incurred regardless of the Applicant’s disability (r 5.1(d) of the NDIS Support Rules).
The Applicant explained that a camera has been set up in her bedroom and the internet access was to enable her support workers to:
“keep me alive. Their monitoring is used on an IPad. The iPad is watched by my support workers, both overnight and also during the day when I need to lie down, need to rest. They watch that camera…and if I’m having a seizure they come in and assist me as needed”’.
The Applicant told the hearing that the seizure camera with IPad connection had been decided upon after comparing it with other similar supports, although she agreed, during cross examination, that she was unaware of Epilepsy Australia’s advice to the Respondent that they would recommend existing mobile phone technology, which would sound an alarm when a person was having a seizure. The Applicant also agreed the internet would be used for other things such as her crypto currency course (and presumably, watching movies and gaming) as well as supporting the outside security cameras she had installed because of her PTSD. She also agreed the internet would support any future online studies. None of these activities is related to the Applicant’s impairment, but the Applicant contended that without the need for seizure monitoring, she could access the internet for these other activities entirely through her mobile phone hotspot, which was cheaper. In the following exchange during cross-examination, she made the additional point that she should be able to use it for multiple purposes:
Counsel: “What I’m saying is that the security cameras, if they require the level of internet that you need, that that’s not related to your primary disability being your Multiple Sclerosis?
Applicant: No, technically it’s not, however if it’s used for another – you know, if it can be used as another – for another support that’s got nothing to do with my disability, being MS, if I – if I use something that is required for another support, I don’t see any reason why I wouldn’t be able to use it, because it’s already available here, so I would make use of it.
Counsel: “And the same goes the other way around. If you already have it, then you can use it for your disability related service which requires the internet, do you agree?”
Applicant: “Yes.”
The Applicant’s general practitioner, Dr Hardjo, told the Tribunal that he had agreed (emphasis added) with the Applicant, when she suggested it, that a seizure monitor would be a “good idea”, but advised that there was inconclusive evidence of seizures:
she’s had a seizure monitoring done by a neurologist in the past, specifically looking for the typical epilepsy seizure activity which has not been able to find any standard epilepsy seizure activity, which is why the working diagnosis at the moment is migraine associated seizures”.
Dr Hardjo was unaware there were alternative low-cost technologies for seizure-monitoring. He also confirmed that the Applicant was on moderate doses of anti-epileptic medication, prescribed by her neurologist, which had the side effects of dizziness and blurred vision. I consider the provision of prescription medication also confirms the neurologist’s precautionary diagnosis of her seizure-like activity. Dr Hardjo told the Tribunal that although the Applicant had been seen in the Emergency departments of hospitals several times and was admitted for three days on one occasion, CT scans showed no concerning activity and she was treated for MS, not seizures.
The Tribunal finds, on the balance of the evidence provided, that the internet would not be used solely and directly for her disability-related needs, as agreed by the Applicant in the exchanged cited at paragraph 70 and as required by Rule 5.1(d). This rule sets a high bar for everyday living costs for the understandable reason that they are incurred by most Australians. Furthermore, there is insufficient evidence that the seizure monitor was recommended by her treating doctor, that consideration of lower cost alternatives was made and, in the absence of evidence about the frequency of seizures and a seizure-management plan, insufficient evidence of value for money of providing internet access as required by s 34 (1)(c).
Advocacy - $15,243.20 ($190.54 per hour x 80 hours)
The Applicant sought funding for the advocacy of her support worker, Ms Grace Burns’, in relation to these proceedings. The Applicant acknowledged that the NDIS did not usually fund advocacy but contended that delay and a lack of advocacy support for NDIS participants weighed in favour of the NDIS funding advocacy costs.
The Respondent referred to s 200A of the Act which provides that ‘nothing in this Act permits or requires the Agency to fund legal assistance for prospective participants or participants in relation to review of decisions made under this Act’.
Support more appropriately funded through other Support Services – s 34(1)(f)
Further, the Respondent contended that advocacy funding was the responsibility of the Department of Social Services and more appropriately funded through that service. The Applicant pointed out that this department had a poor record of providing advocacy funding to applicants, which the Tribunal accepts may be the case, but does not consider the Scheme, as has been observed in numerous other Tribunal decisions, is obliged to meet that deficiency.
In cross examination, the Applicant contended that Chapter 3 of the Act, part 1 A, principle Number 2 supported her case for advocacy funding:
People with disability will be supported in all their dealings and communications with the agency so that their capacity to exercise choice and 30 control is maximised.
In cross examination, the Applicant was taken to the Disability Advocacy Fact Sheet and agreed the Sheet stipulated that “none of these activities are available as NDIS-funded supports”, as provided for in s 200A of the Act..
The Tribunal finds, on the evidence provided to it, that the provision of advocacy funding for these proceedings is not a reasonable and necessary support under the requirements of s 34 (1)(f) and is also inconsistent with s 200A of the Act.
Transport Funding ($18,720 per annum as well as backdating to FCA date)
The Applicant sought additional funding for transport in the amount of $18,720 per year, as well as funding backdated to 12 September 2022. She based this on her seizure activity and the risk to her support workers if she had a seizure while being driven and they needed to attend to her and drive safely:
“it is incredibly unsafe for me to be having seizures, because my support worker cannot keep an eye on the road and also me at the same time, and it’s also incredibly distracting and unsafe for them as well…I can have up to ten seizures a day”
The Respondent contended that the Applicant was not eligible for additional travel funding in the absence of a breakdown of how this amount had been calculated. The Tribunal notes the Applicant did not identify how the figure of $18,720 had been calculated. Consequently, the Respondent contended that, at present, the Tribunal cannot be positively satisfied that the reasonable and necessary criteria in s 34(1)(c) has been met for this support, Value for Money – s 34(1)(c)
The Respondent further contended that any additional travel funding would need to be calculated in the context of the location of the Applicant’s SDA dwelling and the amount of transport available through the SDA.
During cross examination, the Respondent contended that there was no independent medical evidence provided to the Tribunal to support taxi travel. The Applicant told the Tribunal that she was in the process of developing a seizure management plan from Epilepsy Australia but claimed that:
“every single letter my doctor has provided has stated that I have seizures, and that it’s…very unsafe for my support workers to travel in a car unless it’s in a taxi”.
The Applicant’s general practitioner, Dr Hardjo, did not confirm the Applicant’s concern about experiencing a seizure while being driven by her support worker. In cross examination he told the Tribunal:
“My comment would be that she has been transported to and from appointments by her carers, and her seizure activity has not prevented that. She has not reported to me any instances where the seizures have stopped her from being able to be transported to appointments at the very least”.

The director of the Applicant’s support worker service, Better Lifestyle for You, Ms Kelly Watson, confirmed that on one occasion, the Applicant had experienced seizure-like activity in the car and appeared to be unconscious and so the support worker:
“pulled over, she checked on Ms McGrath, she was breathing, and was not responding at the time. Again, within a short period of time Ms McGrath did – I don’t know the medical term or the correct term for it – re-engaged with the support worker’.
Ms Watson told the Tribunal that on other occasions, she had witnessed the Applicant covering her eyes form the flashing lights in Sydney transport tunnels while being transported to appointments.
The Applicant’s OT, Ms Amanda Joules, who had not witnessed the Applicant’s seizure-like activity, told the Tribunal:
“I have severe safety concerns around her travelling with a support worker driving a motor vehicle … I think we all know as driving vehicles we need to maintain our focus on the road at all times. If [the Applicant] is having a seizure in the passenger seat next to a support worker driving, I know for me I certainly couldn’t be focusing on the road, and a participant that’s having a seizure next to me, regardless of whether intervention was needed or not, I have very big concerns around support workers driving while [she] is having a seizure given we don’t know the onset reasons, given we don’t know the triggers for these particular seizures. They can happen anywhere, anytime, doing anything”.
R: “But you can’t say what seizure activity has been observed by the support workers, correct?
Ms Joules: No, again – no, that’s not something that I can comment on”.
The Tribunal finds, based on the evidence provided, that, notwithstanding the Applicant’s concern that her seizure-like activity while being driven might endanger both her support worker and herself, or at least approximate a medical crisis, there is no substantial evidence to support this anxiety on the Applicant’s part, including accounts from support workers other than the one occasion referred to by Ms Watson. Furthermore, no evidence was provided to support the actual amount of money requested. Accordingly, the Tribunal finds that s 34 (1) (c), Value for Money, has not been met for the requested transport costs.
Additional shadow shifts to the initial 6 hour allowance – $3901.16 (62.75 additional hours x $62.17)
The Applicant sought funding for shadow shifts additional to the initial 6 hours training for new support workers which she claimed the Respondent funded in the Applicant’s current plan. The Applicant contended that additional shadow shift funding was necessary as untrained support workers could pose a risk to the Applicant.
The Respondent contended that, at present, the Tribunal could not be positively satisfied that the reasonable and necessary criteria in s 34 had been met for this support and relies upon BIJD and National Disability Insurance Agency [2018]. Further, the Respondent contended that staff training is a matter for the provider rather than the Agency, and so the requirements of s 34 (1) (f) Support more appropriately funded through other Support Services are not met.
During cross examination, the Applicant explained that:
“there has (sic) support workers that haven’t had shadow shifts, and that has worked out absolutely terribly. I actually ended up in hospital at one stage…I can have a meltdown from my ASD…a seizure…overheat…start slurring my speech…fall over”
When asked about the role of the provider in providing shadow shifts, she replied
“it’s said the NDIS generally only funds six hours of shadow shifts, but …this is an exceptional circumstance…I don’t believe it should be the cost of my provider…that’s not something they’re getting reimbursed for... I don’t really think that’s fair”.
Better Lifestyle for You’s Ms Watson told the Tribunal that:
“I believe all my support workers are adequately trained, but every participant is different. So I think it is important and in the best interests of the participant that staff do a shadow shift to understand the personal needs of the participant”.
Ms Watson agreed that an Epilepsy Management Plan would be useful and considered that there was a need for her staff to understand the Applicant’s complex needs. She also told the Tribunal that the Applicant had complexities, such as her narcolepsy, which required her workers to be well informed, but that this was provided in “meet and greets” with the Applicant as well as written advice. She advised:
“I did not charge Ms McGrath’s plan for those, and she doesn’t have significant funding to cover shadow shifts, so I paid the staff members for their time through my business at my own expense.”
The Tribunal considers Ms Watson to be an honest and competent witness who chose to pay for additional shadow shifts from her own business resources and that, inevitably, there would be some conflict of interest for her in supporting further funding for shadow shifts. The Tribunal finds, considering all the evidence, that the Applicant’s needs are not so complex that a professional support organisation, such as Better Lifestyle for You, could not provide ongoing support to the Applicant without additional shadow shifts. Ms Watson’s evidence about the competence of her staff and her preparedness to fund additional shadow shifts, was particularly telling. Accordingly, the Tribunal finds that the request for additional shadow shifts does not meet the requirements of s 34 (1) (f); Support more appropriately funded through other Support Services are not met.
Short term accommodation/respite – 28 days.
The Applicant sought short term accommodation (STA) support at a ratio of 1:1 and requested that two support workers accompanied her on respite for safety reasons.
The Applicant stated generally that this was in line with her goals, including to increase her independence and learn new things, to work on her social skills, make new friendships and develop new skills.
In the Respondent’s contention, the Applicant did not demonstrate how short-term accommodation related to her goals, because she could achieve her goal of making friends, for example, without needing temporary accommodation. Consequently, the Respondent contended that the Tribunal could not be positively satisfied that the reasonable and necessary criteria in s 34(1)(a) had been met for this support, that is, Support must assist with goals – s 34(1)(a.) Further, the Respondent contended that this support is duplicated by SDA supports in the Applicant’s current plan dated 23 May 2023 and so does not meet the requirements of Rule 5.1 (c)- Support duplicates other supports. In addition, the Respondent contended that “the Applicant’s day-to-day supports can be delivered in a variety of locations, not just her SDA accommodation.”
In cross examination, the Applicant was asked whether she agreed that:
“current SIL funding duplicates what you’re requesting as STA?”
The Applicant replied: “So there are many situations where the duplicating supports argument could be used, but it doesn’t matter whether I am in here, or in China, I would still need supports. So I don’t really think that that has any – anything to do with my situation…I currently have one friend that has come over twice in the last year-and-a-half, so I believe that I have the right and, you know, the – to have the dignity to actually learn how to make friends”.
Counsel: “What I’m saying is that you can do that from your current location, is that correct?”
Applicant: “I could, yes”.
After further questioning, the Applicant described her relationship with her family, who live in Queensland:
“Well, my goal, one of my goals, is to actually work on my relationship with my family, which the NDIA has unfortunately stretched by leaving me in the financial position I’ve been in. I now need to work on that relationship harder than I’ve ever worked on it before. My family barely even talk to me anymore… I want to see them, and I haven’t been able to see them for the last year-and-a-half, and that’s twice in my goals, not once, but twice there’s STA respite goals.”
Later, the Applicant reiterated the impact of STA on her life:
“So, in my statement of facts, issues and contentions I would like to quote the addition of STA in my plan will allow me to be encouraged that even despite my complex disabilities and impairments, the impact on my daily life, I can still participate in social inclusion, which will encourage me to get out more into the community and make friends in a long-term way there. So, it’s working on goals and increasing my social and community participation, as well as working on my goals with my relationship with my family”.
The Applicant’s counsellor, Ms Sally Cooper, told the Tribunal that the funding of travel to Queensland:
“is an opportunity for her to build on those relationships, and those things are very much linked back to what’s going on for her in her degenerative condition, and the concern she has that she won’t have forever with them.”
The Respondent put to Ms Cooper that respite care was for informal carers. Ms Cooper disagreed:
“there are other participants that I support that live individually that access STA and have it approved in their plans, and use it for the same reasons that [the Applicant] is asking”.
The Applicant partially acknowledged that working on goals (such as building relationships) was not respite for informal carers, and the Tribunal does not disagree with this understanding. The Tribunal also appreciates the Applicant’s wish to develop her friendship with her family, and sympathises with her estrangement, but the purpose of STA is to provide respite for informal carers or give her the chance to try new things and make new friends or develop new skills, all of which needed to be demonstrated to a positive standard of proof. If the purpose of her requested short term accommodation support was to enable her to build a relationship with her family, there was no evidence provided, or even asserted, that she could not stay with her family and consequently that separate accommodation was required.
The Applicant’s OT, Ms Joules, took a similar view to Ms Cooper and considered that the Applicant needed a relationship with her family in order to achieve her goals, as she told the Respondent during cross examination:
Counsel: “And do you also agree that she is able to access or achieve some of her goals, such as social engagement, making new friends, developing new skills, here in her current location?”
Ms Joules: “No, I think from the benefit of, like, having – family is everything. If you’ve got your family, then having them around and having their moral support, their psychological support, is going to achieve a much greater level of personal satisfaction and community engagement where we’re with people who are willing to support us and encourage us and keep us going. As compared to if you were going within the local community, you don’t know these particular people, and so forth.”
Ms Joules told the Tribunal that in her opinion, developing social skills with family was preferable to developing them with the Applicant’s everyday support workers.
The Guidelines, Short term Accommodation or Respite, state the purpose is:
to cover the cost of care in another place for up to 14 days. ..It’s often funded when your usual carers aren’t available, or for you to try new things.
The Guidelines reinforce this point further on:
Sometimes a short stay away from home:
·Gives you the chance to try new things
·Can be a place to make new friends or develop new skills
·May help maintain your current living situation by giving your informal supports a break.
…Short Term Accommodation includes
·Personal care
·Accommodation
·Food
·Activities you and the provider agree to.
The Guidelines clearly do not contemplate travel costs.
The Tribunal appreciates the Applicant’s desire to see her family and make friends but finds, based on the evidence provided, that the requested support of 28 days short term accommodation with two support workers to accompany her is not necessary for her to achieve her goals of improved social communication, and is unrelated to providing respite care for her informal support workers. The Tribunal also finds the requested support to be poorly thought out; for example, she did not provide evidence of the feasibility of two support workers providing 24/7 active care, funding for travel costs or the option of staying with her family instead of in short term accommodation. Further, this requested support is duplicated by existing SIL supports and does not meet the requirements of s 34(1)(a) of the Act and Rule 5.1(c).
Occupational therapy – 70 hours
The Applicant sought 70 hours of occupational therapy per year including report writing.
On 21 August 2023, on further review of the available evidence, the Respondent agreed to fund a total of 50 hours of occupational therapy per year in the Applicant’s current plan on a pro rata basis in addition to 3 hours of report writing.
The Respondent contended that the Applicant, in the context of the Applicant’s high levels of disability-related fatigue, had not yet provided sufficient material to demonstrate that the additional funding requested (for a further 20 hours) would constitute value for money relative to both the benefits achieved and the cost of alternative supports pursuant to s 34(1)(c) (value for money) or that it would be effective and beneficial pursuant to s 34 (1) (d) Effective and beneficial.
In cross examination, the Applicant explained the need for an additional twenty hours OT as related to report-writing:
“The Agency ask for reports all the time, and reports for anything that is recommended over $1500. Those reports take many hours to actually write and produce, so those extra 20 hours would be going into report writing, such as functional capacity assessments. I’ve had three functional capacity assessments provided during the time the agency has had this case.”
Counsel: “You gave evidence earlier that you weren’t using the services of the occupational therapist, is that correct?’
Applicant: “I did say that I was only using the services of the occupational therapist for the reports that were requested by the agency”.
The Applicant considered she had the capacity for one-on-one or private sessions with the OT, but at present was putting that funding towards her counselling. The Applicant was generally concerned not to run out of funding and explained that she had not:
“been using a lot of services, because I have been worried that I was going to run out of funding and the most important thing …was talking to a counsellor …to help me go through the stress and issues …as a result of the case going on for as long as it did or has”.
The Applicant’s OT, Amanda Joules, told the Tribunal that with travel time, the current fifty hours per annum equated to fortnightly OT sessions in the Applicant’s home of one hour:
“And, you know, 50 hours wouldn’t allow for any updated reports to be completed prior to plan reviews, any AT applications, which we know [the Applicant] certainly requires.”
The Tribunal finds, based on the evidence provided to it, that there may be merit in providing additional hours of OT but since the Applicant had not availed herself of the OT support (other than for support writing) to date, there is insufficient evidence that an additional twenty hours would now benefit the Applicant, thus meeting the requirements of ss 34 (1) (c) and (d). The Tribunal appreciates that the Applicant could seek further hours in her next plan, basing her request on any functional improvement she could demonstrate to have derived from the hours of OT now available to her.
Physiotherapy – 2 hours per week including report writing
The Applicant sought 2 hours of physiotherapy per week including report writing.
On further review of the available evidence, the Respondent agreed to fund a total of 40 hours of physiotherapy per year in the Applicant’s current plan on a pro rata basis.
The Respondent contended that the Applicant has not yet provided sufficient material to demonstrate that the additional funding requested for a further 60 hours per year would meet the requirements of s 34 (1) (c) Value for Money, that it constitutes value for money relative to both the benefits achieved and the cost of alternative supports, or that it would be effective and beneficial pursuant to s 34(1)(d) considering the Applicant’s high levels of fatigue associated with her disability.
The Applicant said that she had not been using her current level of funding for physiotherapy because of her preference for counselling, but she considered that the additional hours would allow the creation of:
“a treatment plan, and continually work on that treatment plan, because my support workers are not able to work on my strength and that kind of thing, because it’s not safe…this will hopefully reduce the chance of falls and injuries”.
The Applicant told the Tribunal she had not seen a physiotherapist for two years and would prefer to use the 40 hours of funding for counselling, rather than a home exercise program, because:
“to me, there’s not enough funding in the counselling budget”.
The Tribunal considers that there is insufficient evidence that the Applicant has prioritised physiotherapy or sought to take advantage of its benefits, although she apparently appreciated those benefits. There was no evidence provided that forty hours of therapy was insufficient, especially if it were used as the basis for a home exercise program, as suggested by the Respondent. It is surprising, given the Applicant’s concerns about falls and injuries, that she has not sought to take advantage of forty hours of physiotherapy and the Tribunal is therefore not satisfied the provision of a further sixty hours would be used by the Applicant. The Tribunal finds there is insufficient evidence that a further sixty hours of physiotherapy per year would be a reasonable and necessary support for this applicant and the requirements of ss 34 (1) (c) and (d) had been met.
Psychology/counselling including report writing
The Applicant sought 2 hours of psychology/counselling per week including report writing.
The Respondent contended that the provision of 26 hours or psychology in the Applicant’s current plan and 3 hours of report writing were sufficient and that the Applicant had not yet provided sufficient evidence that the additional funding requested would meet the requirements of s 34 (1) (c) Value for Money, or that it would be effective and beneficial, s 34 (1) (d), again in the context of the Applicant’s high levels of fatigue.
The Applicant was asked about her doctor’s recommendation that she received five sessions per year for chronic pain management but said this was “insufficient”. She was also asked about the recommendation of Sally Cooper, the Applicant’s counsellor, that one hour per week of counselling be provided (not the two hours sought by the Applicant). She said she appreciated that treatment for post-traumatic stress disorder and major depressive disorder was the responsibility of the health system but did not agree the counselling was primarily to manage the cognitive effects of MS. As she told the Tribunal:
“the funding I had just listed counselling, it didn’t have anything else”.
The Applicant’s counsellor, Ms Cooper, told the hearing the amount of counselling the Applicant would require:
“would depend on whether or not [the Applicant] is able to come back to my office, or whether I would need to keep doing home visits, and also how [she] is – how [she’s] going at the moment, and how much longer the process is ongoing for her. I’d certainly like to hope that we would see some improvement for [the Applicant] after this”
Ms Cooper then told the hearing that she considered the Applicant would require two hours counselling per week after the hearing concluded:
“for at least this next plan period and then future plan periods it would reduce.
Counsel: You would agree that that is a significant amount of counselling per week?
A: That includes the travel time and reports, and any multidisciplinary meetings we have, and communication with support coordinators”.

Ms Cooper was also asked about the role of the counselling funded by the Respondent, which was to support her MS, not her PTSD or autism. Ms Cooper considered that to treat only part of the Applicant’s needs was not professionally appropriate:
“So to indicate that [the Applicant] would have counselling with me just around her – her MS, and that it wouldn’t come up that we would talk about her PTSD and her major depressive disorder, and she would have to go and seek that support somewhere else, would be really – and I would never participate in that as a therapist, it would be a very unhealthy recommendation, to just say I’m just going to treat this one part, and support you in this one part, and now you go and see somebody else with that other part. That wouldn’t be appropriate.”
The Tribunal accepts this practical difficulty for a counsellor in these circumstances, which would apply whether the Applicant received two hours per week or fortnight of counselling. The Applicant’s need for counselling has not been disputed by the Respondent. The Tribunal notes that a psychologist could provide counselling for PTSD and depression as well as her MS, with Medicare benefits, but Ms Cooper considered the frequency and extent of therapy required was far greater than Medicare funding would allow.
The Tribunal finds, based on the evidence provided to it, that two hours counselling per week, including travel time, report writing and multidisciplinary meetings, as requested by the Applicant, is a reasonable and necessary support, satisfying s 34 (1) (c) and (d) for the duration of this plan, but that, in line with Ms Cooper’s advice, it would require review in subsequent plan periods.
Music therapy
The Applicant sought two hours of music therapy per week including report writing.
The Respondent contended that the Applicant had not provided sufficient material to demonstrate that the additional funding requested would constitute value for money relative to both the benefits achieved and the cost of alternative supports pursuant to s 34(1)(c), or that it would be effective and beneficial pursuant to s 34(1)(d). Further, that the Tribunal must decide whether the requested support “meet[s] a threshold which justifies–by reference to the context, objects and guiding principles of the Act and the facts of the case–the expenditure of public funds”.
The Applicant described the great joy she derived from singing, the benefits this brought her, including her ability to actually speak. She said she could not sing in a choir because of her PTSD and that her speech therapist, who has moved overseas, agreed she would not have been able to talk to the Tribunal:
“I wouldn’t even have a voice if I wasn’t singing”.
Her counsellor, Ms Cooper, while agreeing that she had no expertise as a music therapist, told the Tribunal:
“I see it has a huge benefit for [the Applicant], and she really does value that support. It provides her with good emotional regulation, and obviously has a secondary benefit of being able to support her vocal cords, and keep her stronger, and being able to keep her communication skills so she can keep speaking. So I have seen and witnessed, and, yes, I think it’s a very positive thing for her to continue.”
In the absence of a report from a speech therapist, acknowledged by the Tribunal to be difficult to obtain, or further detail about the nature of the Applicant’s current music therapy, it has been impossible for the Tribunal to verify the impact of singing on the Applicant’s speech, despite the Applicant’s enthusiastic description of its benefits. She agreed neither her counsellor nor her OT had observed her music therapy sessions but said they had listened to her recordings.
The Tribunal finds there is insufficient evidence that the provision of music therapy would constitute a reasonable and necessary support, failing to satisfy the requirements of 34 (1) (c) value for money, or of (d) effective and beneficial.
House/yard maintenance – 4 hours per month
The Applicant sought 4 hours per month of house/yard maintenance.
In the Respondent’s contention, the Applicant had not demonstrated that this support is required as it is likely to be duplicated by SDA supports in the Applicant’s current plan if the SDA property is an apartment or if yard maintenance is included by the SDA provider. Accordingly, the Respondent contended that Rule 5.1(c)-Support duplicates other supports had not been met.
The discussion of future house and yard maintenance was entirely speculative, being based on where the Applicant would be located, and, if in SDA accommodation, the possibility that maintenance could be included by the provider. The Applicant rejected the suggestion that one of her support workers could provide this service at her current property for one hour per week and said she would not be able to accompany her while she worked because she could:
“not even go outside when there are people in the backyard next door, or walking past my house. And in the property I am in currently, I can’t even get down the stairs, because there’s no handrails”.
The Applicant was unconvinced that cleaning and yard maintenance were safe for her support workers to do:
“my support workers, again to be morbid, are here to keep me alive. They are here to make sure that I stay alive during their shift, and if I’m alive at the end of their shift then they’ve done a good job. So like, again they can’t go out in to the yard and clean that”.
The Applicant considered cleaning and yard maintenance were not in her carers’ job description or the CADS Award and the Respondent did not challenge that. The Respondent did not challenge the Applicant’s assertion that she could not go outside with the support worker when yard work was being undertaken.
The Applicant’s counsellor, a regular attendee at the house, described the property being on a sloping block and considered that support workers, in her opinion, would be unable to push a lawn mower around in under two hours and:
“I see what her workers do when they’re with her, and are very attentive to her, and they’re near her. So them being outside of the home, wouldn’t be appropriate”.
The director of the Applicant’s support worker provider, Ms Watson, told the Tribunal her staff could not do yard maintenance.
While the Tribunal considers the evidence that the Applicant leaves the house to attend appointments to be somewhat in conflict with her assertion that PTSD prevents her from going into her yard, in the absence of evidence that the Applicant is able to go into her yard, the Tribunal accepts the Applicant’s unchallenged assertion that she cannot and further, accepts that lawn mowing requires equipment, strength and skills not necessarily possessed by care workers.
The Tribunal finds, on the balance of the evidence provided to it, that while the Applicant resides at her current property, the provision of 4 hours yard maintenance per month is a reasonable and necessary support, meeting the requirements of s 34 (1) (c). In the event the Applicant moved to other accommodation, this support would need to be revisited.
House cleaning – 3 hours per week
The Applicant sought 3 hours of house cleaning per week.
The Respondent contended that the support requested duplicated the Applicant’s current SIL funding in the Applicant’s current plan. Accordingly, that Rule 5.1(c) Support duplicates other supports had not been met.
The Applicant agreed that some cleaning would be within the scope of a support worker, but not deep cleaning, and:
“to the standard that would be acceptable in a COVID-19 environment.”
She considered she was too often unwell, that she had seizures from:
“sunlight and stuff like that as well. The roller shutters are hardly ever up, so if they’re in another room cleaning, I may not be able to even walk into the room and sit on the floor, because I can’t do so”.
The Applicant considered she needed a specialist cleaner qualified to clean in a COVID safe manner. She had not provided a quote from such a service.
The director of the Applicant’s support worker service provider told the Tribunal her workers could assist with cleaning, but the Applicant’s OT, Ms Joules, was more qualified, as she explained in cross examination:
R: The applicant is dependent on her support workers for the completion of all laundry and cleaning tasks?
Ms Joules: Yes.
R: And is it your understanding that the support workers currently do those tasks?
Ms Joules: Yes, it is my understanding that they do those tasks. …
R: All right. And the current request for cleaning is three hours per week?
Ms Joules: Yes.
R: Which is less than 30 minutes a day. Do you agree that support workers would be able to share that task across the course of the week?
Ms Joules: I think that from a general day to day, you know, maintenance of the home, that is something that the support workers can do. You know, picking up cups, moving cups, putting the dishes on and so forth. Those minor activities. But when we get down to, you know, cleaning the shower, cleaning the toilet, doing a full mop of the house, you know, that sort of what we would term – and I’d put it in brackets – our weekly to fortnightly big deep clean – I don’t think that’s reasonable for the support workers to be allocating that period of time to maintaining the property..
The Tribunal finds the Applicant’s description of her living circumstances and her inability to allow her carers to do 30 minutes of daily cleaning to be unconvincing; her anxiety that she may have a seizure like activity in their absence, or might fall, was, on the evidence available, overstated, notwithstanding the existence of seizure-like activity which the Respondent does not dispute and which is accepted by the Tribunal. Furthermore, she does not currently enjoy a cleaning service that meets COVID requirements and provided no evidence of sickness as a result.
However, there is no evidence that the effort required from support workers in providing a regular “deep clean”, distinguished by Ms Joules from the thirty minutes a day of light cleaning and tidying up, would be possible in the Applicant’s circumstances, where support workers are there primarily to care for the Applicant and for whom the sustained effort of cleaning a bathroom or mopping the floor would require time, equipment, skill and constitute a distraction from their duties to the Applicant. The Respondent did not contend that the Applicant could do such cleaning herself.
On the balance of evidence provided, the Tribunal finds there is sufficient evidence that support workers would not necessarily have the cleaning skills and equipment, or be able to reliably undertake regular deep cleaning without potentially being distracted, for significant periods, from their care of the Applicant. Accordingly, the provision of three hours house-cleaning per week meets the requirements of Rule 5.1 (c) support duplicates other supports and is a reasonable and necessary support.
Nursing care – unspecified.
The Applicant sought additional training by a nurse to enable her care team to recognise seizure activity and provide emergency assistance.
The Respondent contended that the Applicant had not provided sufficient material to demonstrate that the additional funding requested would constitute value for money relative to both the benefits achieved and the cost of alternative supports, in the context of the Applicant’s high levels of fatigue as a result of her disability. Accordingly, Value for money – s 34(1)(c); Effective and beneficial – s 34(1)(d) had not been met.
During cross examination the Applicant explained that the nursing care would administer her intravenous drugs required for management of her MS (at home, rather than in a hospital setting), train the care team to recognise seizure activity and provide emergency assistance. She agreed she had only recently learned that Epilepsy Australia could assist with epilepsy management and provided no further detail on the amount of nursing care she would require.
The Applicant’s GP, Dr Hardjo, considered the support workers could manage a seizure experienced by the Applicant and told the Tribunal:
“I think her current support workers will be able to manage her symptoms as they are at the moment.”
R: And that the support workers don’t necessarily need training by a nurse to understand what their role would be in those circumstances?
Dr Hardjo: Yes, that’s correct”.
Ms Watson explained that intravenous Prednisone was required when the Applicant had a flare up of her MS but that since 2020, she was “aware of two occasions”. This can be provided in hospital when admission for a MS flare up can be sought.
The Tribunal finds, considering the frequency attested to by Ms Watson and the nature of the care otherwise required as attested to by Dr Hardjo, there is insufficient evidence to support the provision of nursing care as reasonable and necessary, and the requirements of s 34(1) (c) are not met.
Meals – meal preparation and delivery – 7 dinner meals per week
The Applicant sought 7 pre-prepared dinner meals per week. These were previously being provided and the Applicant sought this support on the basis of greater ease of use and because they allow her support workers to monitor her in the same room rather monitoring her while preparing food in another room.
The Respondent contended that this support duplicated the Applicant’s current SIL funding in her current plan. Specifically, that she had 1:1 24/7 support and, accordingly, that Rule 5.1(c)- Support duplicates other supports was not met.
The Respondent also contended that the Applicant had not provided sufficient material to demonstrate that the additional funding requested would constitute value for money relative to both the benefits achieved and the cost of alternative supports pursuant to s 34(1)(c) or that it would be effective and beneficial pursuant to s 34(1)(d) and therefore Value for money – s 34(1)(c); Effective and beneficial – s 34(1)(d) had not been met.
The Applicant explained that the provision of meals was reasonable and necessary because she required her support worker to be in the room with her at all times, and that meant with her if she needed to lie down, or that, on occasions when she saw specialists, the support worker would have insufficient meal preparation time upon the return home.
“if my support workers leave the room, I could die. So I can choke on just even my saliva, and I have several times, so they literally have to be watching me all the time. So if they’re in the kitchen, I’m not able to sort of be able to be watched”.
While the Applicant agreed there was no new evidence that a support worker needed to be present with her at all times, she referred to evidence from her seizure camera which would demonstrate how “scary” her choking could be when her support worker was absent from the room and unable to assist.
The Respondent asked the Applicant about the cost of these proposed meals, which are usually considered to be an everyday expense, but although the Applicant was unaware of the costs and had provided no estimate, she claimed that since the need for prepared meals was directly related to her disability, the meals should be funded.
The Applicant was unable to demonstrate that the need for pre-prepared meals was solely based on her disability and were not of a kind that would not ordinarily be consumed by those without such a disability.
The director of the Applicant’s care support provider, Ms Watson, told the Tribunal her staff could assist with meal preparation for the Applicant, which was confirmed by the OT, Ms Joules. While Ms Joules expressed concern about the Applicant’s decline in her chewing and swallowing function, she made no proposal that the Applicant eat a different sort of food, specific to her disability support needs, to those that would be consumed on a day-to-day basis.
The Tribunal finds there is insufficient evidence to demonstrate value for money for the provision of meals when she has support workers able to prepare meals for her and their presence is not always required for short periods, acknowledging the clearly high level of anxiety the Applicant suffers when her carers are not physically present. The requirements of s 34 (1) (c) and Rule 5.1 and 5.2 are not met.
Support coordination – 120 hours Level 3
The Applicant sought 120 hours of support coordination per year.
The Respondent agreed to fund 12 hours of level 3 support coordination and 34 hours of level 2 support coordination. The Respondent contended that the requirements of s 34(1)(c) (Value for money) had therefore not been met. The Respondent also contended that the Applicant had not yet provided sufficient material to demonstrate that the support requested, being additional hours all at the level 3 skill level, would constitute value for money relative to both the benefits achieved and the cost of alternative supports pursuant to s 34(1)(c).
During cross examination, the Applicant explained that she had not demonstrated the need for 120 hours per year of support coordination at Level 3 because of difficulties with the Agency;
“I haven’t demonstrated a need for it because the agency has not given me the ability to actually use my plan. The agency have basically forced me to put my life on hold for two years, so I wasn’t able to do anything. I’ve not been able to do anything in my plan”.
She also said she had been unable to “even commence fulfilling my goals” because the Agency had not provided enough funding.
The Tribunal considers that the Applicant has frequently explained her failure to spend the money allocated to be the result of insufficient funding and concern about the refusal by the Agency to agree to her request for additional supports. While her anxiety is not disputed, this is no reason to request additional funding without having first demonstrated the impact of those alleged funding shortfalls on her ability to pursue her goals. While this was asserted, it was not supported with evidence.
The Applicant’s counsellor, Ms Sally Cooper, considered the support coordinator effort in finding a home for this Applicant and in organising her various supports would, by comparison with her other clients’ support coordination needs, justify such a level of support as she had recommended:
“to consider 10 hours a month in all of [the Applicant’s] different supports that she needs to make her life and her goals move forward, and to find housing, 10 hours a month seems like an underestimation, if anything, based on just interactions I’ve had with the different support coordinators she’s had over time. So I can only go on the conversations I’ve had with them about how heavy their workload is, and all the things they’re trying to achieve with her. So I’m happy to say it’s not my area of expertise, but I can also give my feedback about what conversations I’ve had with those support coordinators over the time I’ve known [the Applicant].”
The Tribunal accepts the Respondent’s contention that the counsellor is providing anecdotal evidence, not based on expertise as a support coordinator, and that the material is two years old.
The Applicant’s OT, Ms Joules, agreed she did not have the expertise to advise on the frequency of support coordination but that:
“[the Applicant] requires a very high level of support coordination based of her complexities, based on the changes that – the decline that occurs one day to the next day. You know, maybe not so rapidly as a day, but, you know, within a very short period of time things can change. Things that were in place need to change and redirect.”
Accordingly, Ms Joules considered one support coordinator, at the higher Level 3, to be more appropriate for the Applicant.
The Tribunal recognises that in the Applicant’s current circumstances, where she is seeking alternative accommodation, that more extended hours of support coordination could be justified (for this period). The Tribunal notes that the Respondent has doubled its offer of support coordination from six hours per annum at Level 3 and 17 hours at Level 2, considerably greater than her current support coordination provision. However, the Tribunal does not consider there is sufficient evidence that all support coordination be done at the higher Level 3. Noting that the Applicant (T1Q of the Tender Bundle) had originally sought only Level 2 support coordination for the task of finding alternative accommodation, the provision of Level 3 support coordination for 120 hours per year, as now proposed by the Applicant, has not been demonstrated.

The Tribunal finds, on the evidence provided to it, that the 12 hours of Level 3 support coordination and 34 hours of level 2 support coordination proposed by the Respondent to be reasonable and necessary and there is insufficient evidence that more than doubling these hours, and entirely at Level 3, would constitute value for money and so does not meet the requirements of s 34 (1) (c), Value for Money.
Ophthalmology review – once per year
The Applicant sought funding for an annual ophthalmology assessment on the basis of the effect her primary disability has on her eyesight.
The Respondent contended that ophthalmology funding is the responsibility of the Department of Human Services, specifically, Medicare, and is more appropriately funded through that service. Accordingly, the requirements of S 34 (1) (f) more appropriately funded by another service, are not met.
The Respondent relied upon Mulligan to support the contention of a more appropriately funded service being available through Medicare. In Mulligan at 213 [55], the Court acknowledged “the need for “mainstream” services to retain responsibility for all people, including those with disability, as an important aspect of ensuring the financial sustainability of the scheme. Considering the intersection of the NDIS and the health system, the [Productivity Commission] recommended that primary care and hospital-based services, and medical and pharmaceutical products, should remain outside the scope of the scheme. This clear intention to delineate the respective responsibilities of the health system and the NDIS is seen in s 34(1)(f) and in the Rules.”
The Respondent asked the Applicant why she did not use Medicare to fund her ophthalmology review:
R: an ophthalmologist is a specialist that deals with eye diseases, but their funding and services are available on Medicare, either partially or fully if they bulkbill. So as things currently stand, there’s no reason why you couldn’t obtain that funding from Medicare, is that correct?
A:The ophthalmologist that I have been recommended to see, does not take any Medicare services.
R: Are you able to provide some more information about that to the Tribunal?
A: Yes, I am. I just don’t have it right now.
The Applicant explained that the ophthalmologist did not bulk bill, a point expanded upon by her GP, Dr Hardjo, who told the Tribunal:
“Obviously the best way to get seen by an ophthalmologist at the moment is through one of the local private clinics, mostly because you can get in in a timely manner. The private clinics still have a Medicare rebate associated with them, but there is oftentimes an out of pocket cost associated with them”.
The Tribunal finds, on the evidence available, that funding the ophthalmology service is the responsibility of the Department of Health, through Medicare, and no evidence was provided that the services of an ophthalmologist who understood the health needs of sufferers of MS was unavailable to the Applicant because they did not bulk-bill, noting her doctor’s advice that an out-of-pocket expense made access timelier. However, the Applicant seeks support for only an annual ophthalmology review and the Tribunal considers that this, while more difficult for the Applicant, should not be impossible to arrange. Accordingly, the requirements of S 34 (1) (f) more appropriately funded by another service, are not met.
Increased Social and Community Participation - $5,000
The Applicant sought an additional $5,000 to help her achieve her goals such as "learning new skills, trying new hobbies, going to events and universal recreational activities" in connection with increasing her independence and having choice and control over what activities she can do with her support workers.
The Respondent contended that the Applicant’s allowance for increased social and community participation has been replaced in her current plan by SIL 1:1 24/7. The Respondent contended that this support duplicated the Applicant’s current SIL funding in her current plan. Specifically, that she has 1:1 24/7 support.
Further, the Respondent contended that the Applicant had not provided sufficient material to demonstrate that the additional funding requested would constitute value for money relative to both the benefits achieved and the cost of alternative supports pursuant to s 34(1)(c) or that it would be effective and beneficial pursuant to s 34(1)(d). Consequently, the Respondent contended that, at present, there is insufficient material to positively satisfy the Tribunal that the reasonable and necessary criteria in s 34(1)(c) or (d) has been met.
The Respondent distinguished between the cost of funding additional recreational activities and providing a support worker to enable the Applicant to attend such an activity. The Respondent relied upon the Guidelines, which explain that there can be assistance provided to assist the Applicant attend the activity. For completion, the Guidelines for social and recreation support advise that:
We may fund:
Specialised equipment or modification to equipment to help you join in…
Help to build your skills to take part…
A support worker to help you participate…
Help to travel to a recreation event when you can’t use public transport and it’s not reasonable for family or friends to take you.
We generally don’t fund:
The basic cost of the activities that everyone would be expected to pay for like entry fees, registration and membership fees.
Standard equipment you need…
In cross examination, the Respondent asked the Applicant for her understanding of the Guidelines:
Counsel: the Agency has provided support to put you in the position of a person who doesn’t have a disability to engage in those social and community activities. The agency won’t fund the actual activity, do you agree with that?
A: I understand that there are some activities the agency won’t fund, yes.
The Applicant contended that funding one on one activities, such as art classes, would assist with her “social inclusion” and did not accept that she could not be funded for the fees to attend appropriate activities, which, she claimed, her PTSD otherwise prevented her from doing. The Applicant asserted the impact of her PTSD on her capacity to function, but no evidence was provided that her PTSD would do so. Regarding cognitive decline, her counsellor, Ms Cooper, confirmed to the Tribunal that during her sessions with the Applicant support was being provided for her cognitive decline:
“We’ve been talking about ways in which she can still find value in her self-esteem and in her wellbeing to focus on her knowledge acquisitions for this process, and learning more about the legislation, working on how her cognition can still be functioning to the best of her ability, however … there are limits to her cognitive ability. And so as best as possible I try to support [the Applicant] to have realistic goals around what she can achieve and setting that at her own pace”.
The Tribunal finds, on the balance of the evidence available, that the funding requested by the Applicant for fees and other costs to attend social activities and classes, is not in accordance with Rules 5.1 and 5.2 and the Guidelines, which stipulate the additional support is to enable the Applicant to attend an activity, but not to pay for an activity which the Guidelines explain, ‘everyone would be expected to pay”.
The Tribunal also finds, based on the evidence, that the requested support of payment for activities and community activities does not meet the requirements of ss 34 (1) (c) and (d) because the Applicant already has funding for support workers in her SIL funding, which would enable her to attend social activities and classes. The Tribunal considers that the Applicant conflated those activities she would like to do with activities which would be effective and beneficial for her disability and that it is only the latter which would be funded. The Applicant provided no expert evidence of the benefit to her impairments of any particular social or learning activity, which might have constituted some evidence to support her request. She contended that learning to play the guitar would assist her finger dexterity, but no costs were provided and the Tribunal requires more evidence that it would improve her manual dexterity and that it is value for money in managing her MS. The Tribunal understands that the Applicant’s impairments have played a significant role in the loneliness she experiences, but the Guidelines exclude the payment of fees and memberships, and the Applicant’s limited income does not exempt her from those Guidelines.
Education – Funding for a course – $5000
The Applicant sought funding for university education in connection with her goal of “working on her cognition by completing a course such as a diploma of law or IT”.
The Respondent contended that education funding is not the responsibility of the Agency and more appropriately funded by the Victorian Education Department, so that the requirements of s 34(1)(f) -Support more appropriately funded through other Support Services were not met.
The Applicant considered that undertaking a university degree would assist her cognitive decline. While she had previously completed a Cryptocurrency diploma course, she agreed that she had not been seeing the OT, speech therapist and other therapists, who she had been funded for, to assist with her decline.
The Applicant contended that the OT had recommended she do a degree course (which was confirmed by the OT, Ms Joules). However, in cross examination, Ms Joules also described therapies the support workers could put in place to slow her decline:
” In terms of cognitive stimulation… from a memory perspective we can start to put visual aids, … a visual aid of the steps involved in showering oneself or different
steps, you know, if it’s the ordering or the sequencing of tasks, i.e. getting dressed and things, we can certainly provide visual aids around that...We can provide prompts around the house …so that it’s a visual alert. .. In terms of the brain stimulation and engagement, I mean there’s many different strategies that we …can try around, you know, keeping the brain quick as can be and responsive as can be”
The Respondent put to the Applicant that to fund her education would undermine the sustainability of the Scheme to which she replied:
“I don’t believe one participant should be responsible for the entire scheme, for the sustainability of the entire scheme.”
The Applicant’s care worker service director, Ms Watson, told the Tribunal her staff could provide support with the Applicant’s cognitive decline.
The Tribunal finds there is insufficient evidence that funding the Applicant to undertake an educational course would be a reasonable and necessary support, specifically, that the requirements of s 34 (1) (f), Support more appropriately funded through other general services of service delivery or Support Services, were not met.
Reimbursement for accommodation in Doveton (when abandoned by the NDIS) $27,000 (the phrase in brackets is commentary provided by the Applicant which was included in the Respondent’s SOFIC).
The Applicant sought $27,000 for reimbursement of accommodation in Doveton for the period 19 September 2021- 17 January 2023, a period of 15 months. The Applicant claimed that the Respondent had been willing to pay the rental on her Doveton home. She provided a short, recorded extract from a Tribunal directions hearing attended by the Applicant on 23 September 2021, as evidence to support this claim, although she was not clear about where the funding was to come from, or its basis. From the transcript of that hearing, the Tribunal agrees the Respondent offered to allow the Applicant to use her SILS funding to pay her rental while a suitable SDA property was sought, with some discussion about the provision of Medium-Term Accommodation (MTA) and Short-Term Accommodation (STA), pending the registration of her accommodation provider for Specialist Disability Accommodation, SDA.
The Respondent initially contended that the Applicant had not demonstrated that this support was required on the basis that it duplicated SDA and SIL supports accessed by the Applicant over the relevant period. At the hearing, no evidence was provided to support this contention.
In a subsequent submission to the hearing on 12 October 2023, and after considering the transcript of the directions hearing held on 23 September 2021, the Respondent contended that the Applicant had been permitted to use SIL funding in her core budget “flexibly to address her short term needs until suitable accommodation could be funded”. The Respondent also contended in that same submission that the requested reimbursement was not the responsibility of the NDIS, but of other service providers and therefore did not meet s 34(1) (f) of the Act; that payment of rent was a day to day living cost and not permitted by R 5.1 (d) of the Rules; that the funds were “not for rent but for her care in the accommodation to be paid as a ‘provider’” and that SIL funding could be used “for her support needs and was focussed on paying carers…rather than agreeing to pay rent on the Applicant’s accommodation”. In other words, the Respondent provided several additional reasons for not paying the Applicant’s rent for the period 3 October 2021 until 17 January 2023, some reasons inconsistent with others.
However, in further submissions received on 27 October 2023, the Respondent provided the following additional information in an email to the Tribunal and to the Applicant:
We now confirm the following based on review of the invoices submitted by Ms McGrath’s Plan manager between 3 October 2021 and 20 December 2022 and Ms McGrath’s file generally:
· from Ms McGrath’s previous plan dated 1 October 2021 to 22 May 2023, a total of $45,540.67 was made towards short term accommodation (STA) from the Core Daily Activities funding in Ms McGrath’s plan;
· further, from the same plan, a total of $4,644.90 was paid towards medium term accommodation (MTA). From the $4,644.90 total, a single payment of $4,500 was made towards MTA, with the reference document stating ‘Rent’;
The Respondent further acknowledged that although it had declined to pay the rental invoices submitted by Ms McGrath during the period in question, they effectively paid the rent by providing STA and MTA totalling $50,185.57 for the period 1 October 2021 to late May 2023, when a new plan commenced. (The Tribunal notes this is consistent with the discussion at the 23 September 2021 directions hearing when they offered to do so). The Respondent also observed that these monies had been provided:
notwithstanding the fact that it was originally intended that she could use her core funding (SIL budget) for STA for a period of 4 weeks only.
The Tribunal notes that the Respondent has not explained to whom payment of $50,185.57 in MTA and STA for the Applicant’s accommodation was made, but accepts that, over the 20-month period in question, it was paid and approximated a monthly rental payment of $2,509.78.
The Tribunal also notes that the Applicant’s plan approved 1 October 2021 for total funding of $429,580.811, included SIL funding for 24/7 days a week and, as noted in the Respondent’s SOFIC at paragraph 7 an additional amount for SDA, high physical support, to the value of $65,928 (funded at pro-rata rate).(Emphasis added).
On the basis of this information, and conscious that the Applicant was self-represented, I invited the Applicant to provide any further information about the rent she claimed to have paid during this period and for which she sought reimbursement. The Applicant provided a series of screen shots of her rental receipts over this period, each one being for the amount of $1,400 for “4 weeks rent at [street address] Doveton”. The Tribunal accepts that evidence at face value, however, if she paid those amounts from her own bank account, she could have then sought reimbursement through her plan manager, drawing on the STA and MTA allowances in her plan. Since there was more than enough money in her plan to do this, I consider it safe to assume her plan manager arranged for this reimbursement to occur, consistent with the Respondent’s advice, referenced in Paragraph 190 of this decision, that they had:
“review[ed] the invoices submitted by [the Applicant’s] Plan manager between 3 October 2021 and 20 December 2022”
when confirming the payments they made from her plan.
Alternatively, it is possible the Applicant’s receipts for payments of $1400 each month may have represented the balance of the rent owed by the Applicant for the Doveton property after the MTA and SDA payments were deducted. This would have made the total rent almost $1000 per week, but no evidence was provided to this effect.
The Tribunal finds that the Applicant’s claim for reimbursement of rent of $27,000 to be, at best, the result of confusion about the sources of funding in her plan and possible miscommunication with, or mismanagement by, her plan manager. In any case, the Respondent’s failure to properly research this claimed support in advance of the hearing, and the Applicant’s failure to provide adequate documentation, both added considerably to the delay in finalising this decision. The Tribunal finds, based on the additional information provided, that despite the Respondent’s confused reasoning for not paying rent, they had, de facto, paid the Applicant’s rent through the provision of STA and MTA. Moreover, the Respondent appears to have paid a much higher amount than the rent actually incurred by the Applicant, if the Applicant’s screen shot invoices represent her total rent. While in these circumstances the fate of any balance of the money provided for rent less the money actually expended is not the business of this decision, it is clear that there is no case for reimbursement to the Applicant of $27,000.
CONCLUSION
The Tribunal has listened carefully to the concerns of the Applicant and her request for additional supports. Overall, there was limited medical evidence of epilepsy of the kind that would require the level of supervision sought, such as nursing care, her neurologist preferring to describe her condition as a migraine associated epilepsy type disorder and her general practitioner advising that her monitoring, transport and care-worker training were sufficient to meet her current needs with respect to her seizure-like activity. The Applicant embellished the medical advice but was unable to provide evidence of the frequency of her seizure-like activity or its seriousness, notwithstanding that she was medicated with drugs prescribed for seizures and her support workers’ advice that she had three seizures a night. But the Tribunal did not find the Applicant to be dishonest or deliberately misleading; it was clear her concerns about the seriousness of her impairments and their effects upon her were genuinely held and that this perception, while often unrealistic, imposed significant limitations upon her.
The Tribunal concludes, overall, that there was little evidence, including cost estimates and other details, provided for some of the supports requested that would enable the decision maker to be “positively satisfied”, as established in the matter of National Disability Insurance Agency v WRMF (2020) 378 ALR 449.
The Tribunal also concludes that the Applicant may have been able to demonstrate that some of the requested therapy supports were reasonable and necessary, if she had availed herself of the hours for each therapy already provided to her. It remains open to the Applicant to access the therapy hours provided in her plan in future and then to demonstrate the benefit or otherwise of additional hours.
However, the Tribunal accepts evidence of some deterioration in the Applicant’s health resulting from her MS and, as the Applicant described it, the impact of her PTSD and other psycho-social conditions as well as her seizure-like activity. In the absence of evidence to the contrary, the Tribunal has, accordingly, found some of the additional supports requested by the Applicant to be reasonable and necessary. For completion, the Tribunal concludes that the requested supports of: psychology and counselling therapy for two hours per week; four hours per month of yard work; and three hours per week of cleaning, to meet the requirements of s 34 (1) of the Act, reasonable and necessary.

The Tribunal has concluded that the requested support of reimbursement of Doveton residential property rent of $27,000 is not substantiated by the evidence, and that none of the other supports requested, other than those identified in p 197, meet the requirements of s 34 (1), that is, they are not reasonable and necessary.
DECISION
Pursuant to subsection 43(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal varies the decision under review of the Chief Executive Officer of the National Disability Insurance Agency (dated 23 May 2023) to include the following reasonable and necessary supports in the Applicant’s plan:
a)    2 hours of psychology and counselling therapy a week;
b)    4 hours per month for yard maintenance in the Applicant’s current living circumstances;
c)    3 hours per week of domestic cleaning;

I certify that the preceding 202 (two hundred and two) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Goward

.............................[SGD].........................................
Associate
Dated: 14 November 2023

Dates of hearing: 13 and 14 September 2023

Counsel for the Respondent: Ms Ruth Hamnett

Solicitor for the Respondent: Ms Peta Heffernan

[2023] AATA 3719

14 November 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Natural Justice

Remedies

Dates of hearing:	13 and 14 September 2023
Counsel for the Respondent:	Ms Ruth Hamnett
Solicitor for the Respondent:	Ms Peta Heffernan