McLaughlin and National Disability Insurance Agency - [2021] AATA 496

McLaughlin and National Disability Insurance Agency [2021] AATA 496 (12 March 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2018/1998
Re:Alexa McLaughlin
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries, AO
Date:12 March 2021
Place:Canberra

The Tribunal sets aside the reviewable decision dated 29 March 2018 and in substitution determines that Ms McLaughlin is entitled, pursuant to s 33(2) of the National Disability Insurance Scheme Act 2013, to the following reasonable and necessary supports in respect of her 2017 plan:
·those supports included in the statement of participant supports dated 27 June 2017;
·costs solely and directly related to the operation of a disability-modified motor vehicle, above and beyond the costs incurred in operating a standard motor vehicle, including those additional costs, if any, relating to registration, insurance, maintenance and fuel; and
·a consultation with an exercise physiologist, for the purposes of preparing her for participation in tai chi classes.

The Tribunal remits to the Agency consideration of any claim made by Ms McLaughlin in respect of those supports to which the Tribunal has found she is entitled.
........................................................................
Deputy President Gary Humphries, AO
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – jurisdiction of Tribunal in NDIS matters considered – whether supports can be approved in relation to a disability other than the disability on which the participant’s access to the Scheme was granted – whether section 33 contains a residual discretion not to fund support which is not reasonable and necessary – transport contribution considered – Tai chi considered – singing lessons considered – brain exercises considered – insurance for assistive technology considered – community activities funding considered – decision under review set aside and substituted
Administrative Appeals Tribunal Act 1975
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme (Supports for Participants) Rules 2013
Beezley v Repatriation Commission [2015] FCAFC 165
Blattman and National Disability Insurance Agency [2019] AATA 184
Castledine and National Disability Insurance Agency [2019] AATA 4240
Coverdale v West Coast Council (2016) 259 CLR 164
Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634
Ewin and National Disability Insurance Agency [2018] AATA 4726
G v Minister for Immigration and Border Protection [2018] FCA 1229
Holland and National Disability Insurance Agency [2021] AATA 92
Jemena Asset Management Pty Ltd v Coinvest Limited (2011) 244 CLR 508
King and National Disability Insurance Agency [2017] AATA 643
Madelaine and National Disability Insurance Agency [2020] AATA 4025
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Mulligan v NDIA (2015) 146 ALD 418
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Shanahan v Scott [1997] HCA 4
TYKL and National Disability Insurance Agency [2021] AATA 135
Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan (1931) 46 CLR 73
Williamson and National Disability Insurance Agency [2019] AATA 2944
Chen et al, ‘The Effects of Tai Chi Exercise on Elders with Osteoarthritis: A Longitudinal Study’ [2008], 2(4) Asian Nursing Research accessed at: Decisions, accessed at: of Law Institute of Australia, Draft Henry VIII clauses and the rule of law, 2012, accessed at align="left">European Space Agency, No 3 2021: Call for media: ESA seeks new astronauts – applications open 31 March 2021, 8 February 2021, accessed at FOR DECISION
Deputy President Gary Humphries, AO
12 March 2021
INTRODUCTION

Ms Alexa McLaughlin, a 70-year-old resident of Canberra, lives with a number of disabilities. She has been a participant in the National Disability Insurance Scheme (the Scheme or the NDIS) since January 2015. Since that time several participant’s plans have been prepared for her, pursuant to which various supports relating to her disability have been provided. On 27 June 2017 a delegate of the CEO of the National Disability Insurance Agency (the Agency or the NDIA) determined a statement of participant supports in respect of the plan prepared for the period 26 June 2017 to 26 June 2018. Ms McLaughlin had sought, but did not obtain, several supports for inclusion in that plan.
On 29 September 2017, Ms McLaughlin requested an internal review of the decision to refuse these supports. On 29 March 2018, a delegate of the CEO decided to affirm the decision not to include the supports she had requested. This is a decision susceptible to merits review by the Tribunal pursuant to s 103 of the National Disability Insurance Scheme Act 2013 (the Act).
On 16 April 2018, Ms McLaughlin applied to the Tribunal for merits review of the decision to refuse her these supports. Her application was heard over four nonconsecutive days, by telephone pursuant to protocols put in place by the Tribunal to deal with the coronavirus pandemic. The hearing was staggered to accommodate Ms McLaughlin’s issues with fatigue and cognitive impairment. The Tribunal is satisfied that the parties were given a reasonable opportunity to give evidence and present their arguments at the hearing, noting ss 33A and 39 of the Administrative Appeals Tribunal Act 1975.
In her original application dated 16 April 2018 Ms McLaughlin sought review of the Agency’s decision to refuse 14 separate supports. However, as the proceedings progressed, agreement was reached between the parties with respect to 8 of these supports. This decision deals with the remaining six individual supports which Ms McLaughlin has sought as part of her participant’s plan.
These six individual supports are:
(a)Transport contribution;
(b)Tai chi;
(c)Singing lessons;
(d)Brain exercises;
(e)Community activities;
(f)Insurance for assistive technology (AT)
BACKGROUND
On 5 January 2015, Ms McLaughlin was granted access to the Scheme. The delegate who made the decision granting her access was satisfied that Ms McLaughlin met the disability requirements relating to impairments as set out in paragraphs 24(1)(a) to (e) of the Act; specifically, she met the disability requirements in respect of the following impairments:
(a)Osteoarthritis (knee and hip) significantly impacting her mobility;
(b)Obesity;
(c)Chronic Fatigue Syndrome; and
(d)Irritable Bowel Syndrome.
However, Ms McLaughlin had also put forward evidence of other impairments as a basis for entry into the Scheme:
(a)High frequency Hearing Loss;
(b)Lymphedema;
(c)Cognitive Impairment;
(d)Depression;
(e)Hypertension;
(f)Sleep apnoea;
(g)Orthostatic Intolerance;
(h)Multiple Chemical Sensitivities Syndrome;
(i)Chronic Pain; and
(j)Urinary Incontinence.
The delegate determined that Ms McLaughlin did not meet the disability requirements to be granted access in relation to these impairments.
On 27 June 2017, the Agency approved a Statement of Participant Supports in relation to her plan for the period 26 June 2017 to 26 June 2018 pursuant to s 33(2) (the 2017 plan). Those supports consisted of Assistive Technology in the amount of $650 together with the cost of preparation and delivery of meals and amounts for Improved Daily Living and Core Support. Other supports, including counselling/psychology, a replacement mattress and traditional podiatry, were refused. As already mentioned, Ms McLaughlin sought merits review in relation to those refused supports. During the proceedings, the parties sought to vary Ms McLaughlin’s plan, reflecting agreement on some of the supports sought. Pursuant to this agreement a consent decision under s 42C of the Administrative Appeals Tribunal Act 1975 was made.
At the conclusion of the live hearing the Tribunal made a succession of directions for final closing submissions to be made in writing. Several submissions were then lodged by each of the parties. The Tribunal has reviewed and taken into account those submissions along with the submissions received from the parties prior to and during the hearing. It has also taken into account the material set out in the Tribunal Documents, Supplementary Tribunal Documents as well as:
(a)a report prepared by Dr Mary Carse dated 11 April 2019;
(b)a 60-page bundle of documents filed by Ms McLaughlin on 22 May 2020;
(c)Ms McLaughlin’s approved plan dated 13 November 2019;
(d)various policy documents referred to me by the Agency; and
(e)a bundle of documents agreed by the parties and filed by the Agency on 29 April 2020 totaling 1159 pages.
These reasons will set out the relevant evidence in relation to each of the six disputed supports as each such support is considered. However, a general overview of some of the evidence is warranted here.
Pursuant to s 33(1)(a), Ms McLaughlin’s 2017 plan set out her goals. They were as follows:
My First Goal is:
During this plan: to continue to receive transport support and support for aids and some household tasks.
My Second Goal is:
During this plan: My home meets my financial, health and disability needs and is welcoming to others.
My longer term goals and aspirations are:
Goal: to have strong writing and editing skills, knowledge of the health and disability issues which are relevant to me, as well as wider issues relating to community participation and editing and writing potential projects, and to be able to join a community choir.
Relates to: Learning
Goal: To have fruitful encounters with my current family and friends and widen my circle with new ones.
Relates to: Relationships
Goal: To contribute to my communities, engage with friends, and find new friends. Relates to: Social and community activities
Goal: to manage my health conditions so that my health-related quality of life is as good as possible, I feel peace and joy.
Relates to: health and wellbeing
Goal: To have skills to actively market and deliver quality, reliable and timed editing and writing freelance services.
Relates to: Work
Several of the supports being sought in these proceedings relate to Ms McLaughlin’s goals of community participation, to widen my circle with new [friends] and to contribute to my communities…and find new friends.[1] In her evidence, she explained why this was important to her:
I have become isolated from friends and family and I feel very disconnected from the community. My social isolation has been exacerbated by my experience of anxiety and depression which have contributed to long periods of isolation and inactivity. It is very hard for me to establish a new relationship as I have struggled with high levels of anxiety and also from Asperger’s Syndrome (indistinct) that and mobility issues.
[1] In this decision italics generally connote a direct quotation.
She explained that activities in the community:
…would provide me an opportunity to overcome some disability-related barriers and function because [I’m] practising skills and social interaction which I am working on with my psychologist.
Ms McLaughlin described what she considered to be the philosophical underpinning of the Scheme; in relation to the support allowing her to attend a tai chi class tailored to people with disabilities, she described the ethos of the Scheme as:
…a social model of disability in which society and physical environments must change to enable people living with impairments to participate in society on an equal basis with others, [whereas] requiring me to adjust to a mainstream class puts the burden on me to adjust my behaviour to accommodate society.
She told the Tribunal that her income was from the age pension. She used to do some freelance editing work, but had not been able to do so in the last two or three years; she hoped to do such work again in the future.
At the hearing Ms McLaughlin was assisted by Ms Molly Saunders, Advocacy for Inclusion.
THE LEGISLATIVE FRAMEWORK
Chapter 1 of the Act lays out the framework of the legislation, including its objects, principles and definitions. Section 3(1) provides:
(1) The objects of this Act are to:
(a) in conjunction with other laws, give effect to Australia's obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
(b) provide for the National Disability Insurance Scheme in Australia; and
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; ...
In turn, s 3(2) provides that the objects are to be achieved by:
(b) adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability; ...
Section 3(3) relevantly provides that, in giving effect to the objects of the Act, regard is to be had to:
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme; ...
Section 4 sets out General principles guiding actions under this Act. These principles are:
(1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
(2) People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.
(3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
(6) People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation.
(7) People with disability have the same right as other members of Australian society to pursue any grievance.
(8) People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.
(9) People with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.
(10) People with disability should have their privacy and dignity respected.
(11) Reasonable and necessary supports for people with disability should:
(a) support people with disability to pursue their goals and maximise their independence; and
(b) support people with disability to live independently and to be included in the community as fully participating citizens; and
(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
(12) The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.
(13) The role of advocacy in representing the interests of people with disability is to be acknowledged and respected, recognising that advocacy supports people with disability by:
(a) promoting their independence and social and economic participation; and
(b) promoting choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(c) maximising independent lifestyles of people with disability and their full inclusion in the community.
(14) People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme.
(15) Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.
(16) Positive personal and social development of people with disability, including children and young people, is to be promoted.
(17) It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:
(a) the progressive implementation of the National Disability Insurance Scheme; and
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme.
The “mechanics” of the Act commence in Chapter 2. Relevantly, s 13 provides that:
(1) The Agency may provide general supports to, or in relation to, people with disability who are not participants.
(2) In this Act:
general support means:
(a) a service provided by the Agency to a person; or
(b) an activity engaged in by the Agency in relation to a person;
that is in the nature of a coordination, strategic or referral service or activity, including a locally provided coordination, strategic or referral service or activity.
Section 14 then provides that:
The Agency may provide assistance in the form of funding for persons or entities:
(a) for the purposes of enabling those persons or entities to assist people with disability to:
(i) realise their potential for physical, social, emotional and intellectual development; and
(ii) participate in social and economic life; and
(b) otherwise in the performance of the Agency's functions
Chapter 3 is headed Participants and their plans. It provides that a person may request to become a participant, and allows for the CEO of the Agency to decide whether or not the prospective participant meets the prescribed criteria, which include age, residence and disability requirements. Section 24 sets out the disability requirements in these terms:
1) A person meets the disability requirements if:
a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and
b)the impairment or impairments are, or are likely to be, permanent; and
c)the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self‑care;
(vi) self‑management; and
d) the impairment or impairments affect the person’s capacity for social or economic participation; and
e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.

Under s 28, a person becomes a participant in the Scheme when the CEO decides that the criteria are met.
Chapter 3 also deals with Participant's plans. Section 31 provides:
The preparation, review and replacement of a participant's plan, and the management of the funding for supports under a participant's plan, should so far as reasonably practicable:
(a) be individualised; and
(b) be directed by the participant; and
(c) where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(d) where possible, strengthen and build capacity of families and carers to support participants who are children; and
(da) if the participant and the participant's carers agree - strengthen and build the capacity of families and carers to support the participant in adult life; and
(e) consider the availability to the participant of informal support and other support services generally available to any person in the community; and
(f) support communities to respond to the individual goals and needs of participants; and
(g) be underpinned by the right of the participant to exercise control over his or her own life; and
(h) advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i) maximise the choice and independence of the participant; and
(j) facilitate tailored and flexible responses to the individual goals and needs of the participant; and
(k) provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.
Section 32 provides that the CEO must facilitate the preparation of the participant's plans.
Section 33 relevantly provides as follows:
Matters that must be included in a participant's plan
(1) A participant's plan must include a statement (the participant's statement of goals and aspirations) prepared by the participant that specifies:
(a) the goals, objectives and aspirations of the participant; and
(b) the environmental and personal context of the participant's living, including the participant's:
(i) living arrangements; and
(ii) informal community supports and other community supports; and
(iii) social and economic participation.
(2) A participant's plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a)the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; ...
(5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a) have regard to the participant’s statement of goals and aspirations; and
(b) have regard to relevant assessments conducted in relation to the   participant; and
(c)   be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f)    have regard to the operation and effectiveness of any previous plans of the participant.
Section 34 provides as follows:
Reasonable and necessary supports
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and 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.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
Section 35(1) relevantly provides:
(1) The National Disability Insurance Scheme rules may make provision in connection with the funding or provision of reasonable and necessary supports or general supports, including but not limited to prescribing:
(a) methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding, the reasonable and necessary supports or general supports that will be funded or provided under the National Disability Insurance Scheme; and
(b) reasonable and necessary supports or general supports that will not be funded or provided under the National Disability Insurance Scheme; and
(c) reasonable and necessary supports or general supports that will or will not be funded or provided under the National Disability Insurance Scheme for prescribed participants…
Rules have been made for the purpose of ss 33 and 34, being the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Supports Rules). Pursuant to s 209 of the Act, the Supports Rules are a legislative instrument and form part of the legislative scheme governing the NDIS. Section 34(2) requires, in effect, that a decisionmaker (CEO, delegate or Tribunal) take into account matters set out in the Rules in being satisfied of the matters in s 34: National Disability Insurance Agency v WRMF [2020] FCAFC 79 (WRMF) at [238].
A document entitled Operational Guidelines has also been made and was tendered at the hearing.[2] This is an internal document, created to provide guidance in relation to the preparation and review of a participant’s plan, in particular the decision by the NDIA to approve a statement of participant supports (page 3 of the document). Ms McLaughlin submitted that the guidelines are part of a wider policy context which can inform the interpretation of the rules and legislation. Thus, while they are not binding, they should be considered as part of the wider context. The Tribunal accepts that submission.
[2] The 11 May 2020 version of the guidelines was before the Tribunal in these proceedings.
SCOPE OF THE TRIBUNAL’S REVIEW
Several preliminary issues must be dealt with before the substance of Ms McLaughlin’s application can be addressed. The first of these relates to the scope of the Tribunal’s review in the context of the present application.
Although Ms McLaughlin’s application relates to the supports available to her under the 2017 plan, she sought reimbursement for amounts she had spent in relation to the disputed supports in earlier years, and funding for those supports in years following the 2017 plan. However, the Tribunal’s jurisdiction extends only to the 2017 plan. There are no reviewable decisions, pursuant to s 103, in relation to supports in other years currently before the Tribunal, and it cannot make orders in relation to those other years.
Since the advent of the Scheme, the Tribunal has returned many times to the question of how a decision on supports in relation to a particular plan might impact on supports claimed by a participant in respect of other, generally later, plans: see for example the discussion in Ewin and National Disability Insurance Agency [2018] AATA 4726 (Ewin) at [280]-[318]; Castledine and National Disability Insurance Agency at [2019] AATA 4240 at [76]-[79]. In Williamson and National Disability Insurance Agency [2019] AATA 2944 Deputy President Forgie considered that a participant may have access to supports after the review date for the relevant plan has passed, but that a new plan made by the Agency means that the previous plan is no longer in effect. The Tribunal may continue to hear any application for review of the earlier plan, and may increase the level of supports under that earlier plan, so that a participant may be reimbursed for any costs incurred. However, to review the supports provided under a new plan, a participant must make an application for review of that new plan.
However, in Holland and National Disability Insurance Agency [2021] AATA 92 Deputy President Constance took a different view, deciding that a fresh application for review was not necessary in respect of each new iteration of a participant’s plan, where the same supports were essentially under review. He considered that such bureaucratic “red tape” is not mandated by the legislation.
It is unnecessary for the Tribunal as presently constituted to enter into this debate, since the issue of Ms McLaughlin being entitled to higher levels of supports across several plans does not arise. For the reasons provided below, the Tribunal finds that there are (potentially) two supports to which she was entitled in respect of her 2017 plan which the CEO had not approved. In each case they should be dealt with as one-off payments, not recurring payments, as is discussed in the concluding part of this decision.
CAN THE TRIBUNAL APPROVE SUPPORTS FOR IMPAIRMENTS OTHER THAN THOSE REFERRED TO IN THE ACCESS DECISION OF 2015?
At the outset of the hearing the Tribunal raised the question of whether it has jurisdiction to review a decision to approve supports under s 33(2) if a particular support is not related to an impairment which was the basis on which Ms McLaughlin obtained access to the NDIS pursuant to s 24.
The question was raised in particular by reference to rule 5.1(b) of Supports Rules. This rule provides that a support will not be provided or funded under the NDIS if it is not related to the participants disability. As will become apparent, some of the supports for which funding was sought by Ms McLaughlin relate to, say, cognitive impairment or depression, neither of which impairments constituted the basis on which she was granted access to the Scheme in January 2015. Accordingly, the issue arose at the hearing of whether the Tribunal has jurisdiction to revisit the 2015 decision, or whether that decision prevented the granting of funding for supports for impairments which had not been assessed as forming the basis for that decision.
According to the NDIA, this question of whether the CEO (or the Tribunal, standing in its shoes) can approve supports that relate to disabilities that do not appear to meet the impairment requirements under s 24 has not been determined in any previous decision of the Tribunal or a court. Accordingly, the Tribunal asked the parties to make submissions on this question, which each party did following the conclusion of the hearing.
The Agency made a submission in the following terms.[3] Determining this issue is a question of the proper construction of the Act and the Rules. The task of statutory construction must be resolved by having regard to the text of the statute as a whole, and the subject, scope and purpose of the statute and against the legislative history and antecedent circumstances: Coverdale v West Coast Council (2016) 259 CLR 164 at 172 [21]. This necessarily entails, as the High Court stated in Jemena Asset Management Pty Ltd v Coinvest Limited (2011) 244 CLR 508 at [45] (and numerous other authorities), a proper understanding of the policy and purpose of the relevant statute.
[3] Paragraphs [40]-[59] of these reasons essentially reproduce the Agency’s submissions on this point.
In this regard, it was observed by the Full Federal Court in WRMF at [138] that the Act in its structure,…does more than 'ordinary' legislation by incorporating objects and purposes. It incorporates a number of values, which are integral to the legislative scheme. As such, because of its particular features, the need to examine particular provisions in the wider context of the scheme as a whole is especially important.
In the Agency’s view the term disability in rule 5.1(b) is not limited to the particular impairments which qualified a person for access to the NDIS under the disability requirements in s 24. It is notable that the term disability is used widely in the Act, and yet is not expressly defined. The Oxford English Dictionary defines disability as:
A physical or mental condition that limits a person's movements, senses, or activities; (as a mass noun) the fact or state of having such a condition.
That meaning is evidently broader than what is determined to be a disability that meets the disability requirements under s 24. It is significant that s 24 does not use the term disability other than in the heading and chapeau; rather it speaks of impairments. What is apparent is that the application of the requirements in this section results in an “inner circle” of impairments. Put another way, it is apparent that the section recognises that disabilities comprise a broader group than those impairments which will get through the respective filtering “hoops” contained in that provision. Implicit in s 24, therefore, is the recognition that not every disability will meet the disability requirements and therefore qualify a person to be a participant to the NDIS. But in no sense does s 24 purport to be a definition of disability for the purposes of the Act or Rules more broadly.
As MortimerJ observed in Mulligan v NDIA (2015) 146 ALD 418 (Mulligan) at [51], beyond the heading and chapeau, s 24 operate[s] not on the concept of disability, but on the concept of an impairment and (at [52]) the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person and (at [55]) the assessment to be undertaken is avowedly functional, and multi-faceted. That is, the assessment of a person seeking access by means of satisfying the disability requirements in s 24 is an assessment by reference to the functional impact of one or more permanent impairments on a person and which have the character of being intellectual, cognitive, neurological, sensory, physical or attributable to a psychiatric condition (s 24(1)(a)). Once the conclusion is reached that a person meets those requirements having regard to the functional effect of one or more of a person’s permanent impairments meeting the requirements set out in s 24(1)(a), then the purpose of the inquiry as to the analysis of impairment is spent.
Furthermore, nothing in ss 20, 21 or 24 envisages that a decision on a person’s access to the NDIS must be referenced back to a particular impairment. The decision required by s 20(1)(a) is whether or not a person meets the access criteria. Accordingly, any findings on specific impairments are merely part of the reasons of the decisionmaker for being satisfied that the disability requirements in s 24 are met. If it were intended that subsequent decisions under the Act – including the question of reasonable and necessary supports under s 33 – were intended to be governed by the specific impairments that had been determined to meet the requirements of s 24 in the access decision, one would expect that to have been made clear in this Part by way of specific nomenclature that was then employed in subsequent areas of the Act.
Also significant is the fact that access to the NDIS might occur via s 21(2) rather than s 21(1), in which case the person might be granted access to the NDIS not by satisfying the age, residence and disability requirements but solely because the person is a participant in a prescribed program (s 21(2)(b)(iii)). In such a case, it would not be possible to apply the principle that for a support to be funded under the participant’s plan it must relate to the impairments for which the participant was granted access to the NDIS via s 24, because there was satisfaction of that s 24 test in the first place.
That the term disability should be construed according to the broad approach is reinforced by the context of the surrounding provisions of the Act, including Chapter 2 which is headed Assistance for people with disability and others. The use of the term people with disability in the heading of Chapter 2 rather than the term participant as is used in the heading of Chapter 3 indicates that people with disability is a distinct concept from participants. This is reflected in the first two sections of Chapter 2, ss 13 and 14, which provide (underlined emphasis added):
13 Agency may provide coordination, strategic and referral services etc. to people with disability
(1) The Agency may provide general supports to, or in relation to, people with disability who are not participants.
(2) In this Act:
general support means:
(a)a service provided by the Agency to a person; or
(b)an activity engaged in by the Agency in relation to a person;
that is in the nature of a coordination, strategic or referral service or activity, including a locally provided coordination, strategic or referral service or activity.
14 Agency may provide funding to persons or entities
The Agency may provide assistance in the form of funding for persons or entities:
(a) for the purposes of enabling those persons or entities to assist people with disability to:
(i) realise their potential for physical, social, emotional and intellectual development; and
(ii) participate in social and economic life; and
(b) otherwise in the performance of the Agency's functions.
It is tolerably clear from these provisions that not every person with a disability will be a participant in the NDIS and the Agency’s functions extend to people with a disability more broadly, not just to those who become participants in the NDIS. The context therefore reinforces the broad meaning of disability which is not limited to the impairments that satisfy the criteria in s 24.
The structure of the Act, and the scheme it establishes in the form of the NDIS, supports this conclusion. In particular, underpinning the NDIS is the expectation that participation in the Scheme will be for the person’s lifetime, unless they elect to remove themselves from the Scheme or other prescribed exit triggers eventuate. This is reflected in two of the criteria in the disability requirements in s 24(1) in particular, namely (emphasis added):
(b) the impairment or impairments are, or are likely to be, permanent; and…
(e) the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime
It is also reflected in ss 29 and 30 which govern when a person will exit the scheme (underlined emphasis added):
When a person ceases to be a participant
(1) A person ceases to be a participant in the National Disability Insurance Scheme launch when:
(a)the person dies; or
(b)the person enters a residential care service on a permanent basis, or starts being provided with home care on a permanent basis, and this first occurs only after the person turns 65 years of age; or
(c)the person’s status as a participant is revoked under section 30; or
(d)the person notifies the CEO in writing that he or she no longer wishes to be a participant.
(2) A person is not entitled to be paid NDIS amounts so far as the amounts relate to reasonable and necessary supports that would otherwise have been funded in respect of a period after he or she ceased to be a participant.
Revocation of participant status
(1) The CEO may revoke a person’s status as a participant in the National Disability Insurance Scheme launch if:
(a)the CEO is satisfied that the person does not meet the residence requirements (see section 23); or
(b)the CEO is satisfied that the person does not meet at least one of the following:
(i) the disability requirements (see section 24);
(ii) the early intervention requirements (see section 25).
(2) The CEO must give written notice of the decision to the participant, stating the date on which the revocation takes effect.

Importantly, these provisions make clear that a person’s participation in the NDIS is not something that is required or generally available to be revisited on a regular basis. While the CEO has the discretion to revoke the person’s status as a participant, there is no requirement for the CEO to look systematically at this question. Rather, the default position is that once a person becomes a participant, they remain a participant unless and until certain other events occur – which will, in many instances, simply be the death of the person.
That being the case, it would be impractical if the supports that a participant can obtain through the NDIS were limited to supports which related to the impairments which qualified them for access to the NDIS under s 24. After all, one can expect that over a lifetime a person’s impairments may change, whereas their application for access to the NDIS occurs once, at a particular point in time.
In contrast, once a person is a participant in the NDIS, the Act – in particular Part 2 of Chapter 3 –provides for continual review of the supports that are provided to them through their participant plan. Indeed, participant plans have a finite duration and a participant may request that their plan be reviewed by the CEO at any time (s 48). In other words, participant plans are not static and are expected to change over time as the person’s circumstances change over their lifetime. They therefore have the capacity to deal with new impairments as they arise.
Indeed, a requirement of participant plans is that they are individualised and take into account the surrounding circumstances of the participant: they are not focused on the impairment itself but rather on the supports the participant will be provided with under the Scheme and how they fit within the person’s network. Section 31 – which does not mention the term impairment at all – provides as follows (emphasis added):
The preparation, review and replacement of a participant's plan, and the management of the funding for supports under a participant's plan, should so far as reasonably practicable:
(a) be individualised; and
(b) be directed by the participant; and
(c)   where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(d) where possible, strengthen and build capacity of families and carers to support participants who are children; and
(da) if the participant and the participant's carers agree – strengthen and build the capacity of families and carers to support the participant in adult life; and
(e) consider the availability to the participant of informal support and other support services generally available to any person in the community; and
(f)    support communities to respond to the individual goals and needs of participants; and
(g) be underpinned by the right of the participant to exercise control over his or her own life; and
(h) advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i)    maximise the choice and independence of the participant; and
(j)    facilitate tailored and flexible responses to the individual goals and needs of the participant; and
(k) provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.
This is reinforced by the observations of the Full Federal Court in WRMF (at [141]) (underlined emphasis added):
The supports to be provided to a person who qualifies as a participant are intended to accommodate an individual's particular impairments and to assist that particular individual to be a participating member of the Australian community, and to do so on the basis of the values set out in the objects and guiding principles clauses of the Act, as well as the values set out in s 17A of that Act, which provides:
Principles relating to the participation of people with disability
(1)People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.
(2)People with disability will be supported in their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised.
(3)The National Disability Insurance Scheme is to:
(a) respect the interests of people with disability in exercising choice and control about matters that affect them; and
(b) enable people with disability to make decisions that will affect their lives, to the extent of their capacity; and
(c) support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability.
and further (at [152]):
Ultimately, as the Full Court in McGarrigle recognised, the statutory task of determining the contents of a participant's plan, and what are the reasonable and necessary supports, is a fact-intensive exercise. More so than in many legislative schemes that confer an administrative benefit, the circumstances of each participant will vary greatly. The exercise is highly individualised. There will be an area of 'decisional freedom' (Minister for Immigration and Citizenship v Li at [28] (French CJ)) for the decision-maker, about what supports fall within this description, given the circumstances of a particular individual. Provided no substantive legal error attends the choices made, it is possible for reasonable minds exercising the power under s 33(2) to differ. So too on merits review.
These provisions strongly suggest that the supports provided through a participant plan need not be limited to supports which relate only to the impairment which satisfied s 24 to enable the person to become a participant in the first place. Indeed, it is questionable that it would even be possible to “ringfence” supports in that way following the “highly-individualised” approach that places the person in the context of their network and focuses on their individual goals and needs. It is to be expected that a person’s impairments may interact with each other and/or that a given support may relate to more than one impairment.
In short, as Mortimer J explained in Mulligan, the Act envisages that the question of whether a person has access to the NDIS is a separate process from the question of what reasonable and necessary supports are to be provided to a person who has been granted access to the NDIS:
[34] It is clear from the legislative scheme that the decision whether a person is or is not a participant is the threshold decision under the scheme, and the decision which enables access to the majority of benefits and funding available under the NDIS. However, what benefits and supports are provided, and how they are funded is subject to a separate decision-making process. Finally, the broad approach to ‘disability’ accords with the broad aims of the Act which militate against implying areas of exclusion or limitation vis-à-vis the participant. This point was made recently by the Full Federal Court in WRMF, albeit in the context of a different argument about implying words of limitation or exclusion (at [142]-[143]):
142 …The Act does not expressly exclude such activities from being funded supports. Nor has any exclusion been made under the NDIS Rules. In our opinion, there is no implied exclusion of such activities either, and indeed in our opinion the better view is that they are intended to be included. Otherwise, the values, objectives, purposes and guiding principles with which this legislative scheme is replete, where they speak of autonomy, 'best interests', 'exercising choice and control', 'participation in the community', 'full inclusion', 'potential for physical, social, emotional and intellectual development', 'respect for their worth and dignity', 'maximise their independence' and 'maximising independent lifestyles' are to be understood as not meaning what they appear to convey, and as being subject to a limit, by way of a hard and impassable line, at the point of physical intimacy with another human being.
143 In our opinion, it is clear the legislative scheme intends no such limits or exclusion, and no such hard lines to be drawn ….
Similarly, there is no basis in the text, context or purpose of the Act to warrant reading the term disability in rule 5.1(b) as being subject to any implied limitation that it cannot encompass impairments beyond the “inner circle” of impairments that met the s 24 criteria for access to the Scheme. On a proper construction of the Act and Rules, the broad approach is to be preferred.
While the Agency’s analysis of this issue differs somewhat from that of Ms McLaughlin, the parties are nonetheless in agreement on the outcome. Ms McLaughlin made this point in relation to linking later impairments with the disability requirements in s 24:
I also note that medicine is not advanced enough, and people are too complex, to be able to conclusively attribute specific impairments to specific conditions or causes. Often, in the case of anxiety for example, conditions can be primary disabilities, but they may also be impairments resulting from a separate primary disability. The difficulty in delineating these was evidenced in Doctor Flanagan’s testimony, in which she stated no-one could definitively state what the cause of my cognitive impairment is. This is because CFS contributes to co-morbidities with depression and anxiety – all of which can cause cognitive impairments. These conditions and impairments may also be impacted by obesity, lack of exercise, diabetic management, and sleep apnoea. There is not a clear link between any of the conditions and which disabilities cause which. Attempting to delineate these links leads to false and potentially inaccurate constructions. Inaccuracy is particularly likely where these links are being drawn by lawyers with no medical training, against the advice of doctors who themselves state that definitive links cannot be drawn.
The Tribunal finds the arguments set out above to be persuasive. They accord with what appears to be the practice of the Agency in dealing with participants, which is not to tie supports in subsequent participant’s plans to impairments as originally determined. The arguments are also sufficiently concise and pertinent not to require reformulation by the Tribunal. Accordingly, the Tribunal considers that the disability referred to in rule 5.1(b) of Supports Rules is not a reference to a disability by virtue of which Ms McLaughlin was granted access to the scheme in 2015, but rather to any disability with which she presently lives.
NEED A SUPPORT SATISFY ONLY S 34 TO BE CONSIDERED “REASONABLE AND NECESSARY”?
Ms McLaughlin’s closing submission commences with the proposition The NDIS Act 2013 outlines that a support will be funded if it satisfies the “reasonable and necessary” criteria outlined in s 34(1). Although the Agency did not state the relevant test confronting the Tribunal in such bald terms, its submissions appear to proceed on the basis that, if a support satisfies the criteria in s 34, then the support should be funded. (There are additional matters to which the CEO must advert as set out in s 33(5) although, for the most part, these are not expressed as conditions that must be met before support will be funded.)
This approach to the Act assumes that the words reasonable and necessary in paragraph 33(2)(b), in relation to the supports that will be funded, do not impose any additional evaluative exercise on a decisionmaker beyond what is imposed by s 34. Put another way, the words reasonable and necessary in paragraph 33(2)(b) merely describe the effect of the provisions in s 34, but do not add to them.
The Full Federal Court in WRMF was faced with the question of the interplay between ss 33 and 34, and in the course of that interplay it identified what it described as the s 33 residual discretion argument. It analysed the question in the following way (at [158]-[167]):
158. The Agency's contentions on grounds 4(a) and (b) are summarised in its written submissions in the following way:
The Tribunal proceeded on the bases that: (i) if satisfied of all of the matters enumerated in s 34, the claimed support is 'reasonable and necessary' within the meaning of the NDIS Act (Reasons at [7]); and (ii) if a support is 'reasonable and necessary', it should be fully funded, and no overarching discretionary decision exists under s 33 to decline to do so: Reasons at [7], [31].
159. The Agency's substantive argument is set out at [46]‑[48] of its written submissions, but is encapsulated in the first part of [46]:
The words in parentheses in s 33(2)(a) and (b) are important: '(if any)'. Those words recognise a residual discretion on the part of the CEO not to include in the statement of participant supports provision/funding for general supports and/or reasonable and necessary supports even if they meet the requirements of s 34. That construction is supported by the express terms of s 34 which set out the minimal requirements before a support might be funded to any extent; it does not require supports which meet those requirements to be funded - let alone fully funded.
160. The Agency properly conceded that it did not put a submission of this kind to the Tribunal. Indeed, it conceded its submissions to the Tribunal 'invited [it] to err'.
161. It is necessary therefore to set out what was put to the Tribunal. In its position statement prior to the hearing the Agency identified the issues in dispute, and its submissions about them, as revolving entirely around whether the Tribunal could be satisfied of the matters in s 34 (at [24]‑[56]). There were other aspects of the legislative scheme emphasised by the Agency (such as financial sustainability) but no reference at all to a residual discretion in s 33(2) to refuse to approve a support which had been found as a matter of fact to be a 'reasonable and necessary support'.
162. In its final written submissions at [13], the Agency acknowledged a submission put on behalf of the respondent that 'financial sustainability of the NDIS does not "create a residual discretion to refuse" a support', and contended this was not its argument; rather, its argument was that financial sustainability was an 'important overarching consideration'. In fact, in her final written submissions at [27], the respondent had put her contention squarely that:
The NDIS Act does not provide for a residual discretion to refuse approval of participant supports, or indeed to refuse to fund general supports or reasonable and necessary supports, once the CEO has had regard to the matters in s. 33(5) and is satisfied of the matters in s. 34(1).
163. Aside from the contention at [13], the Agency's final written submissions did not seek to contradict the respondent's submissions which we have extracted.
164. During the Agency's final oral submissions to the Tribunal, the Tribunal suggested that the inclusion of para (c) in s 34(1) 'almost suggests there's a discretion in there, which isn't there'. The Agency's legal representative responded:
Yes, sir, but it's not really, in any sense, a true discretion. The decision-maker must be satisfied of each of the elements of the section ...
165. The Agency's legal representative then made the following submission:
And I think my learned friend and I are somewhat ad idem on the role of the question of financial sustainability. My learned friend, in his written outlines - it's not a, sort of, final limb of section 34 that allows you to just, 'Well, I'm satisfied of all the other matters, but I'm not satisfied about financial sustainability, so I therefore have this residual discretion.' I accept that that's his right in his interpretation.
166. That is all that was said about the so-called residual discretion. In those circumstances it is to be expected that the Tribunal did not refer to any issue of this kind arising for its determination on the review.
167. Therefore, the Agency now invites this Court to find error in the Tribunal's decision on a matter that, first, it did not put to it at all, and second, it in fact disavowed. We see no basis on which it should be permitted to put such an argument. It may be a significant question of statutory construction, and a somewhat substantial revision to the present conceptions of this legislative scheme, to imply such a discretion into the text of s 33(2), which appears to be where the Agency contends the implied discretion is located. Consideration of that matter should await a case where it has been properly raised before the Tribunal, so that the issue is more than hypothetical.
It appears to the Tribunal as presently constituted that the question which the Federal Court adverted to but did not finally determine is squarely given rise to in the present proceedings. This is because it has reached the view, as discussed in the paragraphs which follow, that some of the supports sought by Ms McLaughlin satisfy the provisions of s 34 but may not be considered reasonable and necessary pursuant to s 33(2). Clearly, if a support meets the criteria in s 34 and there is no residual discretion in s 33, then the support sought must be funded, but if there is such a discretion then the support must be measured against that test, and refused if it does not meet the test. On the Agency’s submissions, the issue does not arise because it contends that the supports Ms McLaughlin seeks do not satisfy the requirements of s 34. However, the Tribunal does not accept some of the Agency’s contentions in that respect, and accordingly the question of the residual discretion arises and must be considered.
After careful consideration, the Tribunal has come to the view that there is a residual discretion in s 33 to refuse to fund the support which meets the criteria in s 34. It has reached this position for three reasons.
First, the chapeau of s 34(1) requires the CEO to be satisfied of certain criteria, set out later in the subsection, before specifying the reasonable and necessary supports which will be funded in a participant’s statement of participant supports. A support cannot be approved unless it satisfies these criteria. However, the chapeau does not say that the supports will be funded if they meet the stipulated criteria. It would have been a simple matter to have drafted the chapeau in such terms, had that been the intention. I infer from this construction that satisfying the s 34(1) criteria is a necessary but not sufficient step in having a particular support approved.
Secondly, s 33(2)(b) requires a participant’s plan to specify the reasonable and necessary supports (if any) that will be funded under the Scheme. Had it been the legislative intention that the description of what constitutes reasonable and necessary supports is captured in s 34(1), one might have expected either that these words would be followed by a phrase such as as stipulated in s 34(1), or a definition might have been found in s 9 in terms such as:
reasonable and necessary supports means supports which satisfy the criteria in section 34
The absence of any provision cross-referencing reasonable and necessary supports to the criteria in s 34(1) lends weight to the view that s 34(1) does not define, in effect, what constitutes a reasonable and necessary support.
Thirdly, s 34(1) is framed so as to elevate the contents of the participant’s statement of goals and aspirations, referred to in s 33(1), to be a key consideration against which supports are to be assessed. The first criterion in s 34(1) is that the support, to be approved, will assist the participant to pursue goals, objectives and aspirations included in the participant’s statement of goals and aspirations. The second criterion is that the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation. A participant’s goals, objectives and aspirations and their social and economic participation are matters set out in their statement of goals and aspirations. By the terms of s 33(1), these are matters for the participant alone to stipulate; the CEO has no role in that exercise. The first two criteria in s 33(1) are determined, therefore, according to the subjective wishes of the participant.

Nonetheless, it would appear that the issue Ms McLaughlin raised at the hearing arose in 2019, once the proceedings in the Tribunal were underway. What is before the Tribunal presently is, as already mentioned, her 2017 plan. Against this background, what the Tribunal must consider is the argument that insurance for AT would meet the requirements of the Act in the general context of items wearing out or being lost or damaged, not in the context of their replacement being denied in the course of litigation.
Addressing that task, I observe that it is difficult to see how the support addresses Ms McLaughlin’s goal of My home meets my financial, health and disability needs and is welcoming to others. A support focused on mobility aids relates to her personally, not to her home. However, it is easier to see how the support might address her goal of To continue to receive transport support and support for aids.
The Agency argues that the claimed support does not assist her to pursue her goals – in this case, to receive support for aids – because it is the aids themselves which so assist her, not the insurance of those aids. In certain contingencies the claimed support would indeed assist her to pursue this goal, however. If her mobility scooter were to break down irretrievably, the availability of private insurance cover might provide her with a replacement scooter sooner than if she relied on the Agency to furnish one. If, say, this meant that she had the benefit of a scooter for 11 months of the year as opposed to 10 months where she had no resort to insurance, then the insurance support could be said to assist her to pursue her goal of receiving support for aids.
In two respects, however, the claim for the support is wanting, in the Tribunal’s assessment. Because of the residual discretion in s 33, regard may be had to the provisions of the Supports Rules and the Operational Guideline to determine whether the support is reasonable and necessary. The Guidelines set up the requirement that the NDIA is able to identify a clear and direct link between the support to be funded, or provided, and one or more of the goals outlined in the participant’s statement of goals and aspirations. There must be said to be a measure of doubt as to whether there is a clear and direct link between the proposed support and the goal of receiving support for aids. That is, the support will only assist in pursuing the goal in the (presumably rare) circumstance that (a) an item of AT needs to be replaced, (b) the need is urgent and cannot be planned for, (c) the Agency is unable to replace the item or provide a temporary alternative in a timely way, and (d) an insurer is able to do one or both of these things.
More significantly, Ms McLaughlin has not demonstrated that the proposed support represents value for money (s 34(1)(c)). Irrespective of the comfort which she no doubt would derive from knowing that she has the alternative of claiming on insurance for an item that needed replacing, the cost effectiveness of this arrangement from the point of view of the funding Agency (which, of course, is the relevant test) is far from clear. Replacing items promptly from the Agency’s resources may, in the circumstances, be more cost-effective – but whether it is or isn’t cost-effective is a question on which no evidence has been placed before the Tribunal. Such a question may only be amenable to answer through actuarial analysis. Certainly, from Ms McLaughlin’s point of view it would presumably have been far more cost-effective (or at least more beneficial) to have called on insurance for the items she needed to replace in 2019, but I have already indicated that these circumstances are sui generis, and should not be the basis on which the cost effectiveness of insurance in ordinary circumstances should be judged.
On the basis that the proposed support does not meet the criterion in s 34(1)(c), it must be refused.
CONCLUSION
The Tribunal has found that Ms McLaughlin satisfies the statutory test, in principle at least, in respect of two claimed supports: transport support and support for consultation with an exercise physiologist for the purposes of preparing her for participation in tai chi classes.
In respect of the latter, the Tribunal remits the reviewable decision to the Agency to consider whatever evidence Ms McLaughlin chooses to submit to it regarding the cost of a consultation with an exercise physiologist. It is still reasonable to fund this support notwithstanding that it relates to her 2017 plan, on the assumption that she still wishes to undertake tai chi classes and thus needs professional preparation to do so. It is, of course, a one-off payment.
The position in relation to a transport support is more complicated. The Tribunal’s decision relates to her 2017 plan, which ran from 26 June 2017 to 26 June 2018. My decision is that she was entitled to the additional costs, if any, she incurred solely and directly as a result of operating a modified vehicle, as opposed to operating a standard vehicle, during the period of this plan. These costs may include higher registration costs because a larger than usual vehicle was required, and the extra cost of petrol incurred because the vehicle was heavier than an ordinary vehicle. Pursuant to the Operational Guidelines, however, these costs will not include the higher costs of purchasing a modified vehicle.
However, the evidence taken at the hearing was not clear as to whether she did in fact operate a modified vehicle during the life of the 2017 plan. Even if the vehicle she operated was a modified vehicle, her evidence was that she took it off the road (because she could no longer afford to operate it) in August 2017. Some of the costs she claims may only relate therefore to the period June-August 2017. In addition, it may be the case that she is unable to produce evidence of the higher costs she incurred during that period. If she is entitled to reimbursement for costs incurred in relation to this support it will, of course, be a one-off payment.
This decision has no relevance to her present plan as she does not presently operate a motor vehicle. One supposes that the real value of the decision with respect to her entitlement to a transport support relates to any future plans in which she seeks to recover costs in relation to operating a modified motor vehicle. On the basis of this decision one would expect the Agency to fund those costs.
The decision which is ultimately the subject of Tribunal review is described in s 99 as a decision to approve the statement of participant supports in a participant’s plan [under] subsection 33(2). The decision of the CEO in s 33(2) is to approve the plan prepared with the participant. The CEO does not directly determine the contents of the statement of participant supports. He or she simply approves (or refuses to approve) a plan. The binary nature of his power is emphasised in s 36(5).
Consequently, all that the Tribunal can do on merits review is approve the statement of participant supports prepared with the participant or set it aside and approve a different statement of participant supports. There is no power in the Act to vary a plan once approved. A participant may request the CEO to conduct a review of his or her plan at any time (s 48(1)), and the CEO may initiate a review autonomously at any time (s 48(4)). However, the outcome of such a review is the preparation of a new plan, not the variation of the previous plan (s 49). In this case, the decision the subject of review approved a statement of participant supports which did not include the two supports which the Tribunal has now determined Ms McLaughlin was entitled to. Accordingly, the Tribunal must now set aside the statement of participant supports made by the CEO on 27 June 2017 and remit for reconsideration by the CEO the two matters on which the Tribunal has determined Ms McLaughlin is entitled to supports.
Accordingly, the Tribunal sets aside the reviewable decision dated 29 March 2018 and in substitution determines that Ms McLaughlin is entitled, pursuant to s 33(2) of the Act, to the following reasonable and necessary supports in respect of her 2017 plan:
·those supports included in the statement of participant supports dated 27 June 2017;
·costs solely and directly related to the operation of a disability-modified motor vehicle, above and beyond the costs incurred in operating a standard motor vehicle, including those additional costs, if any, relating to registration, insurance, maintenance and fuel; and
·a consultation with an exercise physiologist, for the purposes of preparing her for participation in tai chi classes.
The Tribunal remits to the Agency consideration of any claim made by Ms McLaughlin in respect of those supports to which the Tribunal finds she is entitled.

I certify that the preceding 229 (two-hundred and twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries, AO

........................................................................
Associate
Dated: 12 March 2021

Date(s) of hearing:

4, 11, 14 & 22 May 2020

Date final submissions received:

7 September 2020

Applicant’s Representative:

Ms Molly Saunders, Advocacy for Inclusion

Counsel for Respondent:
Ms Prue Bindon

Solicitors for Respondent:

Ms Laura Crick, Clayton Utz

Date(s) of hearing:	4, 11, 14 & 22 May 2020
Date final submissions received:	7 September 2020
Applicant’s Representative:	Ms Molly Saunders, Advocacy for Inclusion
Counsel for Respondent:	Ms Prue Bindon
Solicitors for Respondent:	Ms Laura Crick, Clayton Utz