McPherson and National Disability Insurance Agency

McPherson and National Disability Insurance Agency [2021] AATA 4682 (17 December 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/4290
Re:Stephen McPherson
APPLICANT

National Disability Insurance AgencyAnd
RESPONDENT

Decision
Tribunal:Member Dr C Huntly
Date:17 December 2021
Place:Perth

The reviewable decision, made on 3 July 2020, refusing the request by Mr McPherson for funding for a Defibrillator machine, is affirmed.
............[sgd]............................................................
Member Dr C Huntly
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary support – participant plan – whether support can be approved – defibrillator considered – decision under review affirmed.
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Cases
McGarrigle v National Disability Insurance Agency [2017] FCA 308
McLaughlin and National Disability Insurance Agency [2021] AATA 496
Buckley and National Disability Insurance Agency [2021] AATA 3622
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Secondary Materials
NDIS Operational Guideline – Including specific types of supports in plans
REASONS FOR DECISION
Member Dr C Huntly
17 December 2021
introduction

Mr McPherson (the Applicant) is a “participant” under the National Disability Insurance Scheme (the Scheme), on account of a squamous cell carcinoma of his tongue, and resultant resection surgeries of the tongue and throat walls. The Respondent (the Agency) administers the Scheme, pursuant to the National Disability Insurance Scheme Act 2013 (Cth) (the NDISAct).
On 29 April 2020, the Respondent approved a “Participant Plan” for the Applicant under s 33(2) of the Act,[1] which outlined the supports that were to be provided to him under the Scheme between 29 April 2020 and 29 April 2021 (Plan).
[1]T1D/8; T7/39.
On 4 May 2020, the Applicant requested an internal review of that decision,[2] to include payment for further supports. On 3 July 2020,[3] a delegate of the CEO of the Agency decided to affirm the decision not to include the supports he had requested. This is a decision susceptible to merits review by the Tribunal pursuant to s 103 of the NDIS Act.
[2]T5/37.
[3]T1F/20; T2.
On 16 July 2020, the Applicant applied to the Tribunal for merits review of the decision to refuse him this support.[4] 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 (Cth).
[4]T1/1.
facts
The Applicant was born in April 1960 and is currently 60 years of age.
The Applicant was diagnosed with a squamous cell carcinoma involving his tongue.
[5]Exhibit A9 (Report of Dr Yuen dated 03 October 2020).
This has required numerous resections from 2018, the latest required a three-quarter glossectomy (surgical removal of the tongue), bilateral neck dissections with a free- flap reconstruction. Postoperative chemoradiation therapy was also required.[5]
As a result of the disabilities arising out of these medical interventions, the Applicant was accepted as a “participant” under the Scheme.
The Applicant’s surgeries have resulted in an inability to swallow or otherwise evacuate a build-up of saliva in his mouth. Because of this, it is accepted that the Applicant is at a significantly higher risk of choking and unconsciousness.[6]
[6]T1/C7 (Report of Dr Yuen dated 8 April 2020).
The Applicant states that there have been numerous times where the excess saliva has obstructed his breathing, to the point where he has collapsed before he could move the obstruction, to the point of unconsciousness.[7]
[7]Ibid.
The Applicant further states that he has, in fact, choked and collapsed into an unconscious state on two occasions in recent times. Fortunately, circumstances permitted the Applicant to be revived, given a rapid response by others on each occasion.[8]
[8]T6/38.
The Applicant was previously studying law, and his spouse (the Applicant’s spouse) works full time.[9] As a result, of his disability, the Applicant has suspended his law studies and spends much of his time at home alone from 7.00am until about 5.30pm, Monday to Friday.[10] The Applicant and his spouse live in a three-unit complex and they enjoy a good relationship with their neighbours. The Applicant is an avid amateur photographer and enjoys travelling in remote Western Australia, often off-road, to pursue this interest and also due to a lifelong affinity with remote Western Australia.[11]
[9]T4/35.
[10]T1G/25.
[11]Transcript p 18; Exhibit A12 Applicant’s Statement of Lived Experience) [3.2]–[3.4]; [4].
The Applicant’s evidence is that his neighbour (the first neighbour) is retired and is also at home every day. It would, at best, take two minutes for her come into his house and start administering first aid if necessary.[12]
[12]T1E/18.
This first neighbour is away from home for about four to five hours per week. While the Applicant is at home alone, a second neighbour (the second neighbour) has been given access to the Applicant’s home and is now part of the Applicant’s emergency protocols.[13]
[13]Ibid [12].
In May 2019, the Applicant purchased a ‘man down’ alarm, which sends out a text to a list of eight contacts when activated (the first and second neighbours are among these contacts). It then rings the contacts until someone answers the call, if it is not answered by one of the eight contacts, it then rings 000. Once the call is answered the alarm becomes a telephone. The necessary protocols have been put in place if the alarm is activated.[14]
[14]Exhibit A12 (Applicant’s Statement of Lived Experience) [2.2].
The Applicant also learned, via the internet, that canines were being taught to administer External Cardiac Compression, and so in July 2019 he purchased an 18-month-old German Shepherd dog from a New South Wales from a suitable breeder.[15]
[15]Applicant’s email to the Tribunal, dated 11 December 2020.
The dog has since undergone months of training to perform external cardiac compression, body block and single and double paw reassurance. The Applicant states that the dog is still 12 – 18 months away from certification as an assistance dog, if he is capable of external cardiac compression assistance at all.[16]
[16]Ibid.
The Applicant had previously been utilising a Laerdal Suction Unit on loan from the Hospital, a device which is used to evacuate excess saliva, however that unit had to be returned.[17]
[17]T6/38.
In early 2020, the Applicant requested payment of the following supports under the Scheme:
(a)Laerdal Suction Unit and associated consumables, at a cost of $3,548.20 (the Suction Unit); and
(b)Heart Start Defibrillator at a cost of $2,695.00 (the Defibrillator).[18]
[18]Ibid.
On 4 May 2020, the Respondent approved a “Participant Plan” for the Applicant under s 33(2) of the NDIS Act, which outlined the supports that were to be provided to him under the Scheme between 29 April 2020 and 29 April 2021 (the Plan).[19] In relation to the above supports, the Respondent agreed to fund Assistive Technology (the Suction Unit), but funding was not approved for the Defibrillator. The quantum of funding approved under the Plan amounted to $6,621.03 for “Core Supports” and an “Assistive Technology – Capital Supports” funding approval in the amount of $5,000.00.
[19]T1D/8; T7/39.
On 4 May 2020, the Applicant’s spouse contacted the Agency, requesting a review of the Plan. Specifically, the Applicant sought the inclusion of the Defibrillator within the Plan.[20]
[20]T5/37.
On 3 July 2020, the Agency reviewed the Applicant’s request under s 100 of the NDIS Act and affirmed the original Plan.[21] The Respondent’s delegate found that the Defibrillator was likely to cause harm the participant or pose a risk to others, pursuant to r 5.1(a) of National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (‘the Rules’).[22]
[21]T1F/20; T2.
[22]See below para [42].
On 9 July 2020 the Applicant lodged an application for review of the Reviewable Decision.[23]
[23]T1/1.
The Applicant’s current Plan (approved 13 July 2021) (the Current Plan) approves funding amounting to $6,672.36 for “Core Supports” and an “Assistive Technology – Capital Supports” funding approval in the amount of $1,451.80.
decision in summary
Section 35(1)(b) of the NDIS Act provides that the Rules may exclude the funding or provision of either general supports or reasonable and necessary supports. One of the exclusions provided at r 7.5 applies to the “clinical treatment of health conditions”. As the Defibrillator is a single-purpose device, for rendering medical treatment to address a particular type of acute medical emergency, it is excluded under s 35(1)(b) of the NDIS Act.
Notwithstanding this, the Tribunal has also considered the Defibrillator on its own terms and is satisfied that this support would “assist the participant to pursue the goals, objectives and aspirations” in the Applicant’s Plan as per s 34(1)(a) of the NDIS Act. However, as discussed below, the Tribunal is unable to be satisfied that the Defibrillator meets the statutory criteria at s 34(1)(b), (c) and (d).
Accordingly, even if the Defibrillator was not an excluded support, it would not meet the comprehensive qualifying criteria for the funding or provision of supports set out at s 34(1) of the NDIS Act. The section is clear–all of the criteria (i.e. sub-sections (a)-(f)) are required to be satisfied before the qualification for funding or provision can be met.
The Tribunal has also considered, and is unpersuaded by, the Respondent’s contention that a support requested pursuant to s 33 of the NDIS Act be “linked” to a participant’s disability in order to qualify for funding or provision. As discussed below, the framework of the NDIS Act is inconsistent with such an approach.[24]
[24]National Disability Insurance Agency v WRMF [2020] FCAFC 79 (‘WRMF’) [154]–[157]; [187]–[202].
By its terms, the NDIS Act expresses a clear legislative intention on the part of the parliament to provide for the funding of supports (whether general or reasonable and necessary) that are directed towards a given participant’s “goals, objectives and aspirations” or “social and economic participation”. The actual attainment of such goals per se is not stipulated in the relevant provisions as the principal objective of the Scheme.
relevant Legisation
The NDIS statutory framework
The objects and principles of the NDIS Act are set out in Part 2 of the NDIS Act.

Subsection 3(1) of the NDIS Act relevantly includes:
(1)The objects of this Act are to:
…
(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 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 mainstream community; and
(Emphasis added]).
Section 4 of the NDIS Act sets out the General Principles guiding actions under the NDIS Act and they relevantly include:
(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.
…
(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.
…
(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 mainstream community and in employment.
…
(15)Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.
(Emphasis added).
As noted by the Full Court of the Federal Court in National Disability Insurance Agency v WRMF [2020] FCAFC 79 (‘WRMF’),[25] the participation principles enshrined at s 17A of the NDIS Act are one of the central unique features of the Scheme and provides as follows:
[25]WRMF [138]–[139], approving McGarrigle v National Disability Insurance Agency (2017) (‘McGarrigle’) 157 ALD 520 [22]–[44].
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 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.
(Emphasis added).
In this context, in WRMF, the Full Court has observed that parliament’s intention was that the supports to be either provided or funded under the Scheme were to be for the participant and not the disability.[26] This should be determined by reference to the goals, objectives and aspirations or desire to participate expressed by the participant in question:
Nevertheless, there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet 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 for that support, for a particular participant. As we have already explained, the phrase also 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. It is not accidental, in our opinion, that Parliament has chosen the term 'participant' to describe individuals who will receive funded support: the choice of that term reinforces, as we have sought to explain, that the driving objective of this Act is the holistic, improved and increased participation by persons with disability in the life of their communities, and in life itself.
(Emphasis added).
[26]WRMF [151].
In this respect, it is observed that the Scheme is directed to the participant’s plan, not to the participant’s disability. The disability needs of the participant are a relevant consideration, but not a qualifying criterion, in assessing the merits of a participant’s particular goals, objectives or aspirations for which funding may be made available.
The functions of the Agency are set out in s 118 of the NDIS Act and include the following relevant functions:
(1)The Agency has the following functions:
(a)to deliver [the Scheme] so as to:
(i)support the independence, and social and economic participation, of people with disability; and
(ii)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(iii)ensure that the decisions and preferences of people with disability are respected and given appropriate priority;
(iv)promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and inclusion in the mainstream community; and
(v) ensure that a reasonable balance is achieved between safety and the right of people with disability to choose to participate in activities involving risk;
…
(Emphasis added).
Reasonable and necessary supports in participant plans
Chapter 3 of the NDIS Act deals with individual plans, under which reasonable and necessary supports will be funded for participants in the NDIS. Section 31 of the NDIS Act sets out the principles relating to the preparation, review and replacement of a participant’s plan.[27] These principles are generally reflective of the General Principles set out in s 4 of the NDIS Act[28] and expressly include, amongst other things, that these processes should:
[27]NDIS Act s 31.
[28]NDIS Act ss 4(1)–4(17).
(a)be individualised;
(b)be directed by the 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.
(Emphasis added).
Section 33 of the NDIS Act deals with the contents of a participant’s plan. Subsection (1) sets out the requirements with respect to the participant’s statement of goals and aspirations, including that it must be prepared by the participant. Subsection (2) applies to the statement of participant supports which must also be included in the plan, and which must be prepared with the participant and approved by the CEO:
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 with the participant that specifies:
(a)the goals, objectives and aspirations of the participant; and
…
(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 Scheme]
…
(Emphasis and underlining added).

Subsection 33(5) of the NDIS Act states that the matters to which the CEO must have regard in deciding whether or not to approve the statement of participant supports are as follows:
…
(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 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.
(Emphasis added).
With respect to ‘reasonable and necessary supports’ that will be funded, s 34(1) of the NDIS Act provides:
(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 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.
[Emphasis added].
Section 35 of the NDIS Act also provides as follows:
(1) [The 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 Scheme]; and
(b)reasonable and necessary supports or general supports that will not be funded or provided under [the Scheme]; and
(c)reasonable and necessary supports or general supports that will or will not be funded or provided under the [the Scheme] for prescribed participants.
…
(Emphasis added).
A ‘support’ is defined in s 9 of the NDIS Act as including ‘general supports’, being those defined in s 13(2) of the NDIS Act as the kind of supports provided by the Agency itself. However, the term ‘support’ and the phrase ‘reasonable and necessary’ are not further defined in the NDIS Act.
In McGarrigle v National Disability Insurance Agency [2017] FCA 308 at 91 (‘McGarrigle’), Mortimer J observed, with respect to those words:
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 s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.
The Rules, made pursuant to s 35(1) of the NDIS Act, provide further guidance with respect to the assessment of any reasonable and necessary supports that will be funded. Pursuant to s 209 of the NDIS Act, the Rules are a legislative instrument and are therefore binding on the Tribunal. In this case, the relevant rules include:
Introduction to supports for participants
...
2.3In relation to both general supports to be provided and reasonable and necessary supports to be funded, the CEO also needs to be satisfied of a number of matters, including the following:
(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 or 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 Scheme] and is not more appropriately funded or provided through other service systems (service systems is defined in paragraph 6.4).
(Emphasis added).
…
Value for money
3.1In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a)whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(c)whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d)for supports that involve the provision of equipment or modifications:
(iii)   the comparative cost of purchasing or leasing the equipment or modifications; and
(iv)   whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e)whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f)whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
(Emphasis added).
…
General criteria for supports
5.1      A support will not be provided or funded under [the Scheme] if:
(a) it is likely to cause harm to the participant or pose a risk to others; or
(b) it is not related to the participant’s disability; or
(c)   it duplicates other supports delivered under alternative funding through the NDIS; or
(d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
[Emphasis added].
Rule 5.1 must, though, be read in context and in its subsidiary relationship within the Scheme. As the Full Court has observed, a participant is only eligible to access the Scheme by means of a qualifying disability.[29] It is on this basis that a “participant” (who qualifies as such by means of a recognised “disability”) frames their statement of goals and aspirations for the purposes of securing support to pursue their “goals, objectives and aspirations”. That is not to say the Rules serve the function of constraining how the NDIS Act should be interpreted and applied, merely that the ways in which the powers granted by the NDIS Act (including the power to exclude particular supports at s 35(1)(b)) may be used are amenable to regulation or modification by means of such Rules.
[29]WRMF at [151].
The Rules are a legislative instrument and are therefore binding on the Tribunal.

In this case the relevant rules include:
Schedule 1 Considerations relating to whether supports are most appropriately funded through [the Scheme]
7.1The Act limits the supports that can be provided or funded under [the Scheme] to supports that are not more appropriately funded or provided through other service systems, for example as part of a universal services obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
7.2 The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by [the Scheme] or another service system.
…
Health (excluding mental health)
7.4 [The Scheme] will be responsible for supports related to a person’s ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment.
7.5 [The Scheme] will not be responsible for:
(a) the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions; or
(b) other activities that aim to improve the health status of Australians, including general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post-acute services), preventive health, care in public and private hospitals and pharmaceuticals or other universal entitlements; or
…
(Emphasis added).
The NDIS Operational Guidelines are divided in to ten parts, by subject area.

The Operational Guideline – Including specific types of supports in plans (‘Specific Support Guideline’),[30] provides detailed policy to assist the Agency in exercising its functions and powers in making decisions relating to the approval of specific types of supports in participant plans.
[30]This document was provided by the Respondent at T10/74. The Tribunal notes that this document is no longer available online in this format. It is recommended that the Agency review its current online guideline presentation as it is unwieldy and Byzantine in the extreme. A more transparent and straightforward public facing document would be of greater assistance to participants, support persons, care providers, families and other stakeholders.
Although this policy is not binding upon the Tribunal, it should be applied by the Tribunal unless it is inconsistent with the provisions of the NDIS Act.[31] Relevantly, the Specific Support Guidelines referred to by the Respondent state:
[31]Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
7.        The participant’s statement of goals and aspirations
A participant’s plan must include the participant's statement of goals and aspirations prepared by the participant that specifies:
·     the goals, objectives and aspirations of the participant (section33(1)(a)); and
·     the environmental and personal context of the participant's living, including the participant's:
·living arrangements (section 33(1)(b)(i));
·informal community supports and other community supports (section 33(1)(b)(ii)); and
·social and economic participation (section 33(1)(b)(iii)).
7.1What is the importance of the participant’s statement of goals and aspirations?
The participant’s statement of goals and aspirations (also known as the participant’s statement) is the important first step in preparing the participant’s plan.
The participant’s statement of goals and aspirations is critical to the development of a successful statement of participant supports.
Firstly, the NDIS Act states that [the Agency] must have regard to a participant’s statement of goals and aspirations when deciding to include supports in a participant’s plan (section 33(5)(a)).
Secondly, before including any support in a participant’s plan, [the Agency] must also be satisfied that the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations (section 34(1)(a)).
Therefore, the link between participant’s statement of goals and aspirations and the statement of participant supports is explicit, and ensures that the participant’s statement provides the important foundation for the subsequent selection of supports.
(Emphasis added).
The criteria in the NDIS Act and the Rules are not exhaustive, and the Tribunal arguably still retains the discretion to decide whether the supports are necessary and reasonable.[32]
[32]McGarrigle, 539 [85]. But cf: WRMF [166]-[167].
It is also worth reflecting on the Operational Guideline relating to “Planning”, which states as follows:[33]
[The Agency] funds reasonable and necessary supports that help a participant reach their goals, objectives and aspirations, and to undertake activities to enable the participant’s social and economic participation.
[33]T10/81 (9.2 “What are reasonable and necessary supports?”).
And again:[34]
It is important to note that [the Agency] does not need to be satisfied that the funding, or provision of a support, will specifically result in the achievement of a participant's goals, objectives and aspirations. Rather, the support simply needs to assist (i.e. aid, support or contribute) the participant to achieve their goals.
[Emphasis added]
[34]T10/85 (10.2 “What are reasonable and necessary supports?”).
However, it will be appreciated that the actual wording of s 34(1)(a) of the NDIS Act is rather differently drafted, namely:
the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
This distinction (i.e.: “assist to pursue” vs “assist to achieve”) is significant and suggests that there may be a lack of clarity on the part of the Agency in how it conceptualises a central feature of its statutory framework within which it operates. By its terms, the NDIS Act expresses a clear legislative intention on the part of the parliament to provide for the funding of supports (whether general or reasonable and necessary) that are directed towards a given participant’s “goals, objectives and aspirations” or “social and economic participation”. The actual attainment of such goals per se is not stipulated in the relevant provisions as the principal objective of the Scheme.
issue(s)
The sole issue for resolution in this application is whether the Applicant’s expressed statement of goals and aspirations for the purposes of the Applicant’s Plan requires funding support for the Defibrillator as a reasonable and necessary support for the purposes of the NDIS Act.
ThE HEARING
The application was heard on 5 October 2021 in person at the Perth Registry of the Tribunal and, by consent, with the assistance of MS Teams Videoconferencing. The Applicant appeared on his own behalf and the Respondent was represented by Mr Phillip Nolan of Counsel, instructed by Sparke Helmore Lawyers.
Documents referred to during the hearing were made accessible to all the parties via MS Teams where necessary.
During the hearing, evidence was taken from the Applicant. Evidence was also taken from the Respondent’s expert medical witness, Dr Kenneth Hossack, Cardiologist (Dr Hossack).
The Tribunal had before it the following documents:
Applicant Exhibits
(a)Evidence - Australian Resuscitation Council (ANZCOR) - Basic Life Support Flowchart (A3)
(b)ANZCOR Guideline 4 (dated 2016) (A4)
(c)ANZCOR Guideline 5 (dated 2016) (A5)
(d)ANZCOR Guideline 7 (dated 2016) (A6)
(e)ANZCOR Guideline 8 (dated 2016) (A7)
(f)Evidence - Affidavit/statement - Applicant, filed 7 September 2020 (A8)
(g)Evidence - Medical report - Specialist letter - Dr Paul Yuen (A9)
(h)Evidence – Email Submission – Applicant (A10)
(i)Statement of Lived Experience – Applicant (A12)
(j)Statement of Lived Experience – Applicant’s spouse (A13)
(k)ANZCOR Guideline 5 (dated 2021) (A14)
Respondent Exhibits
(a)Section 37 T-Documents, consisting of T1-T10; pages 1-147 (R1)
(b)Respondent's Statement of Facts, Issues and Contentions (SOFIC) (R2)
(c)Briefing Letter - Dr Hossack (R3)
(d)Medical Report - Dr Hossack (R4)
(e)CV – Dr Hossack (R5)
(f)Supplementary T-Documents, consisting of ST1-ST5, pages 1-20 (R9)
parties’ contentions
Not in contention
It is agreed between the parties that this review application is not affected by the subsequent participant plan, start date 13 July 2021 and review date 13 July 2022.[35]
[35]Applicant’s further submissions 2 November 2021 [8]; Respondent’s Submissions in Reply dated 30 November 2021 [5]. See also NDIS Act s 101 and QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.
Is the Defibrillator a “reasonable and necessary” support in the context of the Applicant’s plan?
As discussed above, central to the Scheme is the objective at s 3(1) of the NDIS Act to “provide reasonable and necessary supports … for participants in [the Scheme] launch”. Further, the general principles outlined at s 4 of the NDIS Act include the statement at subparagraph (5) that; “[p]eople with disability should be supported to receive reasonable and necessary supports”.
It follows that the determinative assessment required of the Tribunal in this application is whether or not the Applicant’s expressed statement of goals and aspirations requiring funding support for a Defibrillator is a reasonable and necessary support for the purposes of the Applicant’s Plan under the NDIS Act.
Section 34(1)(a) – whether proposed support will assist the Applicant to pursue his goals, objectives and aspirations
As discussed above, s 34(1)(a) and (b) of the Act require that a proposed support should assist the participant in pursuing the goals, objectives and aspirations set out in the Plan, and to assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation.
It is agreed by the parties that Applicant’s goals in the Plan were as follows:[36]
[36]
For present purposes, the Tribunal finds that the Applicant’s goals relate to:
(a)health and wellbeing (with aspirations including completion of the HBF run and, more recently, pursuing remote outback travel adventures);
(b)social engagement (building a support group); and,
(c)improved communication skills (equipment and capacity required for more effective communication).

The Applicant contends that the goals in his Plan are not particularly instructive, given the level of abstraction in which they are expressed. Specifically, the Applicant states that his attainment of the goals expressed in his Plan is preconditioned by his capacity to remain conscious in circumstances where his disability places him at a significantly higher risk of choking and unconsciousness. On this basis, the Applicant ‘s submissions stated that:[37]
Besides allowing [him] the best chances of surviving a choking incident at home the defibrillator will ensure a greater chance of survivability regardless of where [he] goes or what [he] does.
[37]Exhibit A3 [25].
In the course of this review, the Applicant has relied in part on two specialist medical reports of Dr Paul Yuen (Dr Yuen), his treating otolaryngologist. The first of these reports, dated 8 April 2020, referred exclusively to the necessity of funding for a personal Suction Unit and appears to be unremarkable, given that the required funding was supported by the Agency under the Plan.[38]
[38]T1C/7.
Dr Yuen’s second medical report discussed the author’s past clinical history with the Applicant and relevant treatment modalities discussed with the Applicant which fell within Dr Yuen’s specialty.[39] Specifically, the Tribunal notes the catastrophic treatment interventions outlined in the report that have already been necessitated and endured (primarily by the Applicant and secondarily by the Applicant’s spouse)[40] as a consequence of the Applicant’s initial diagnosis.
[39]Exhibit A9, dated 3 October 2020.
[40]Exhibit A13 (Statement of Lived Experience – Applicant’s Spouse dated 11 April 2021).
Dr Yuen’s report further documented the limited treatment options available to patients in the Applicant’s position in order to deal with the ongoing potential for saliva build-up to compromise his breathing in the ordinary course of daily life as follows:[41]
The usual recommendation under these circumstance[s] would be what is termed a toilet laryngectomy which essentially separates his airway from his alimentary tract. This was discussed with Stephen and he categorically declined this option. I can understand the thought process as this would have even more implications on his communication skills.
[41]Exhibit A9.
Dr Yuen noted that these treatment options, falling within his area of specialist medical expertise, were “categorically declined” by the Applicant. At the hearing on 5 October 2021, the Applicant’s spouse explained this decision in the following terms, written by the Applicant in a prepared, closing, statement:[42]
MRS McPHERSON: Thank you, Member. “My medical condition is never going to get better and I’m always going to have the problem with my saliva and phlegm resulting in my choking. The only medical solution is the redirection of my airway to a permanent port in my neck. This will result in the total loss of my speech and further impact what cancer has had on my life [sic]. I am having problems accepting what I’ve lost, career, business, just to name a few, because of the cancer, including what speech that I have, let alone no speech at all.”
[42]Transcript p 50.
Dr Yuen’s report appears to have departed from his area of specialist medical expertise when he observed that the Applicant’s “request for a defibrillator, although highly unusual might be the only option at this stage.”[43]
[43]Exhibit A9.
The Applicant has produced ample evidence of the efficacy and relative safety of an Automated External Defibrillator (AED) of the type for which he seeks funding within the context of his Plan.[44] This is accepted by the Respondent.[45]
[44]T1/G; T1/H; T3; T6; Exhibit A2 [17]–[33], Exhibits A3–A7, Exhibit A10 (Attachment); Exhibit A14.
[45]Exhibit R6, Respondent’s Amended SFIC [35]; Respondent’s Outline of Submissions dated 1 November 2021 (Respondent’s Outline of Submissions)[46].
During the course of the present application, the Respondent has altered its position significantly on the question of safety concerns, that were cited as a central reason by the delegate for not providing funding support for such a device in the Reviewable Decision.[46] The Respondent’s initial Statement of Facts Issues and Contentions (Respondent’s Initial SFIC) dated 29 January 2021 relegated its safety concerns about AEDs to the status of an alternative proposition.[47]
[46]T1F/23.
[47]Exhibit R2 [42].
Rather, the Respondent’s primary objections to providing funding support for an AED were better expressed as either:
·an AED not being a reasonable and necessary support,[48] or otherwise
·not having a sufficient nexus with the Applicant’s disability.[49]
[48]Exhibit R2 [30]–[40].
[49]Exhibit R2 [43]; Respondent’s Outline of Submissions [25].
On 24 May 2021 the Respondent submitted an amended SFIC (Respondent’s Amended SFIC)[50] relying heavily on the report of the Respondent’s expert cardiologist witness, Dr Hossack dated 6 April 2021.[51] The Respondent’s primary objections to providing funding support for a Defibrillator in the Respondent’s Amended SFIC were therein expressed in terms of not being reasonable and necessary supports[52] or otherwise not having sufficient nexus with the Applicant’s disability.[53] The Respondent’s alternative proposition relating to its previous safety concerns about AEDs were now no longer being maintained by the Respondent. This prior point of difference in contentions now appears to be agreed by the parties.
[50]Exhibit R6.
[51]ST4.
[52]Exhibit R6 [30]–[40].
[53]Exhibit R6 [43].
Relevantly, the Rules referred to above provide that:
2.3In relation to both general supports to be provided and reasonable and necessary supports to be funded, the CEO also needs to be satisfied of a number of matters, including the following:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
…
And that:
4.1 When deciding whether or not to approve a statement of participant supports under section 33 of the Act, the CEO is to:
(a) identify the participant’s goals, aspirations, strengths, capacity, circumstances and context; and
(b) assess activity limitations, participation restrictions and support needs arising from a participant’s disability; and
(c) assess risks and safeguards in relation to the participant; and
(d) relate support needs to the participant’s statement of goals and aspirations.
Of further relevance in this respect is the Specific Support Guideline, which states:
7.1What is the importance of the participant’s statement of goals and aspirations?
The participant’s statement of goals and aspirations (also known as the participant’s statement) is the important first step in preparing the participant’s plan.
The participant’s statement of goals and aspirations is critical to the development of a successful statement of participant supports.
Firstly, the NDIS Act states that [the Agency] must have regard to a participant’s statement of goals and aspirations when deciding to include supports in a participant’s plan (section 33(5)(a)).
Secondly, before including any support in a participant’s plan, [the Agency] must also be satisfied that the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations (section 34(1)(a)).
(Emphasis added).
It appears from the foregoing that the Applicant’s medical condition results in the inevitable build-up of oral secretions. One consequence of this phenomena is a propensity to choke and experience compromised breathing. The Applicant experiences choking on an almost hourly basis, with compromised breathing on a daily basis. Leaving other considerations to one side, it will be appreciated that these circumstances impede the Applicant’s pursuit of his goals, objectives and aspirations.
The Applicant does have a medical option available to him on expert medical advice (a toilet laryngectomy), which would assist him to pursue his goals, objectives and aspirations to the extent that it would reduce his risk of compromised breathing. However, this option would mean that the Applicant would be impeded in the pursuit of his goals, objectives and aspirations relating to having a greater capacity for more effective communication.

He would lose what is left of his already reduced capacity to communicate through independent speech. Such are the wicked dilemmas faced by participants in the position of the Applicant.
In the circumstances, then, would the support in question (the Defibrillator) “assist [the Applicant] to pursue his goals, objectives and aspirations”? The Applicant states that “[the Defibrillator] will ensure a greater chance of survivability regardless of where [he] goes or what [he] does”. Clearly, the Applicant’s subjective view is that having access to such a device will assist him to pursue his goals, objectives and aspirations. However, this is not the relevant legislative test. The test to be applied is an objective test, and this requires a rational assessment of the evidence.
Section 34(1)(b) – Whether the support will assist Mr McPherson to undertake activities, so as to facilitate his social and economic participation
The Applicant’s goals relating to social and economic participation are suitably summarised in the following passage of his SFIC, dated 3 March 2021:
The Applicant camps and travels the world and the outback of both Western Australia and Australia, with his wife. However, the Applicant still has the issue of choking wherever he goes and does not stop just because emergency services are not close.
Relying heavily on the 6 April 2021 report of Dr Hossack,[54] the Respondent’s amended SFIC[55] relevantly addressed this element of the reasonable and necessary criteria as follows:[56]
The likelihood of the Applicant experiencing a cardiac rhythm that is responsive to defibrillation due to respiratory obstruction caused by his disabilities is remote.

A defibrillator is also not effective in stopping the Applicant’s cardiac arrest in these circumstances, as the primary treatment would be to clear the airways.

The Applicant also has access to a [the Suction Unit], which sucks out the excess saliva he produces. This would have a very high likelihood of successfully resuscitating the Applicant.
[54]ST4.
[55]Exhibit R6.
[56]Respondent’s Amended SFIC [30].
In its most recent submissions, dated 1 November 2021,[57] the Respondent draws on comments of Mortimer J in McGarrigle[58] and the Full Court in WRMF about the “links between a person’s impairment and their full participation in the community”[59] as authority for its contention that “there is a fundamental need to establish the links between the person’s impairment and the support to be considered.”[60]
[57]Respondent’s Outline of Submissions.
[58]McGarrigle [88].
[59]WRMF [151].
[60]Respondent’s Outline of Submissions [25].
Section 34(1)(c) – Whether the support represents value for money
Section 34(1)(c) requires consideration of whether the proposed support represents “value for money” relative to the benefits achieved and the cost of alternate support. Clause 3.1 of the Rules extracted above provides certain mandatory considerations that are of specific relevance to this criterion.
It is worth restating the Applicant’s contention, extracted above,[61] that his attainment of the goals expressed in his Plan is preconditioned by his capacity to remain conscious in circumstances where his disability places him at a significantly higher risk of choking and unconsciousness:[62]
Besides allowing [him] the best chances of surviving a choking incident at home the defibrillator will ensure a greater chance of survivability regardless of where [he] goes or what [he] does.
[61]See above para [74].
[62]Exhibit A3 [25].
The Respondent contends, relevant to the “value for money” consideration at s 34(1)(c) of the Act, that:[63]
This sub-section does not require evidence of alternative support that would achieve the same purpose. It may be that the potential benefit of the support is so remote that it would not justify incurring the expense at all. This is exactly the case here, based on the level of risk identified by Dr Hossack.
Section 34(1)(d) - Whether the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice
[63]Respondent’s Outline of Submissions [44].
Rules 3.2 and 3.3 of the Rules provide further guidance on applying s 34(d) of the NDIS Act. Those clauses state:
Effective and beneficial and current good practice
3.2In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a)published and refereed literature and any consensus of expert opinion;
(b)the lived experience of the participant or their carers; or
(c)anything the Agency has learnt through delivery of [the Scheme].
3.3In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary, seek expert opinion.
(Original emphasis)
As stated above, the Applicant’s evidence of the efficacy and relative safety of a Defibrillator[64] of the type for which he seeks funding within the context of his Plan is accepted by the Respondent.[65] However, it is noted that the Respondent caveats this concession by contending that the relevant consideration is constrained by the requirement that the support “be effective and beneficial for the Applicant’s impairment.”
Section 34(1)(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
[64]T1/G; T1/H; T3; T6; Exhibit A2 [17]–[33], Exhibit A3–Exhibit A7, Exhibit A10 (Attachment); Exhibit A14.
[65]Exhibit R6 (Respondent’s Amended SFIC) [35]; Respondent’s Outline of Submissions dated 1 November 2021 (Respondent’s Outline of Submissions) [46].
No submissions were specifically made by the Applicant relating to this criterion.
[66]Exhibit A9 (Applicant’s Statement of Lived Experience).
[67]Exhibit A12 (Statement of Lived Experience) [2.2].
[68]Exhibit A3 [25].
However, as discussed above, the Applicant’s “Statement of Lived Experience”[66] indicates that he that he has purchased a “man-down” alarm which permits automated emergency response calls as a last resort in a short space of time.[67] As indicated above, the Applicant has also contended that the “man-down” alarm, and the response from the metropolitan ambulance service do not facilitate his attainment of those goals expressed in his Plan, as these relate to accessing remote Western Australia or travel more generally.[68]
The Respondent accepts that the Applicant’s request for a defibrillator does meet s 34(1)(e), however, is contended in the Respondent’s amended SFIC in another context, that:[69]
The only occasion that the ambulance has been called in respect of the Applicant was on 20 October 2018, no cardiac arrest was observed, and a defibrillator was not used. The response time was 4 minutes and 39 seconds. The target response times generally for priority 1 (emergency) calls within 15 minutes 90% of the time is met 85.9% of the time.
There is a defibrillator in every metropolitan ambulance. Each ambulance carries a 12-lead monitor defibrillator, and all response cars carry a semi-automatic defibrillator. In the unlikely event that a defibrillator is required due to respiratory obstruction, it is highly likely that the Applicant will have access to a defibrillator via ambulance within 15 minutes.
The Applicant contends that those response times are only relevant to the metropolitan areas, as opposed to regional areas. He wishes to travel to those areas.
…
Section 34(1)(f) - The support is most appropriately funded or provided through the 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
[69]Exhibit R6 [40]–[42].
Paragraph 34(1)(f) of the NDIS Act contemplates whether the funding should be provided through other systems of service delivery or support services. Relevantly, schedule 1 of the Rules states:
Considerations relating to whether supports are most appropriately funded through the NDIS
7.1The Act limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems, for example as part of a universal services obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
7.2The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system.
7.3For the avoidance of doubt, while this Schedule sets out considerations relevant to whether a support should be considered to be more appropriately provided or funded through another service system, it does not purport to impose any obligations on another service system to fund or provide particular supports.
Note:The considerations set out in this Schedule are derived from the Principles to determine the responsibilities of the NDIS and other service systems, agreed to by the Council of Australian Governments, and dated Friday 19 April 2013. That document also includes principles relating to aged care. They are not relevant to this Schedule but are given effect to in section 19 of the [NDIS Act] and [the Scheme] (Becoming a Participant) Rules 2013 (Cth).
Health (excluding mental health)
7.4The NDIS will be responsible for supports related to a person’s ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment.
(Emphasis added).
Relying on the evidence of Dr Hossack,[70] the Respondent contends that the Defibrillator, is for the clinical treatment of a health condition and is more appropriately provided through the Ambulance Service, the Hospital and WA Health.
Section 35(1)(b) - The support is not prescribed by the Rules as a support that will not be funded or provided under the Scheme.
[70]ST4 p 12; Transcript p 45.
Paragraph 35(1)(b) of the NDIS Act contemplates that, in common with other insurance schemes, some express exclusions will apply. Relevantly, schedule 1 of the Rules states:
7.5      The NDIS will not be responsible for:
(a)the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions; or
(b)other activities that aim to improve the health status of Australians, including general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post-acute services), preventive health, care in public and private hospitals and pharmaceuticals or other universal entitlements; or
(c)funding time-limited, goal-oriented services and therapies:
(i)     where the predominant purpose is treatment directly related to the person’s health status; or
(ii)    provided after a recent medical or surgical event, with the aim of improving the person’s functional status, including rehabilitation or post-acute care; or
(d)palliative care.
(Emphasis added).

Again, relying on the evidence of Dr Hossack,[71] the Respondent contends that the Defibrillator is for the clinical treatment of a health condition and should therefore be regarded as an excluded support, as follows:
I would consider use of a defibrillator to be medical treatment. I would consider clearing the airway as medical treatment.
[71]ST4 p 12; Transcript p 45.
“Other” Considerations
It should be noted that, in its submissions, the Respondent’s Amended SFIC also contends, that:[72]
… section 35 allows for the provision of the Rules to prescribe further methods or criteria to be applied in determining whether the support is reasonable and necessary. The Rules in fact have the ability to modify the operation of section 34 in certain circumstances.
[72]Exhibit R6 [41]; McGarrigle [43].
The Respondent’s Amended SFIC does not address how this contention is consistent with the proposition that s 34 of the NDIS Act expresses parliament’s intentions about how the CEO must ensure the achievement of the objects of the NDIS Act at s 3 in conformity with the general principles of the Scheme at s 4 of the NDIS Act.
Neither does the Respondent’s SFIC address how this contention is consistent with the proposition that s 118 of the NDIS Act expresses parliament’s intentions about how the Agency is required to discharge its functions. These include the following at s 118(1):
Functions of the Agency
(1) The Agency has the following functions:
(a) to deliver the National Disability Insurance Scheme so as to:
(i)      support the independence, and social and economic participation, of people with disability; and
(ii)     enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(iii)     ensure that the decisions and preferences of people with disability are respected and given appropriate priority ; and
(iv)     promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and inclusion in the community; and
(v)     ensure that a reasonable balance is achieved between safety and the right of people with disability to choose to participate in activities involving risk;
Specifically, in this respect, the Respondent cites r 5.1(b) extracted above which states that:
5.1A support will not be provided or funded under [the Scheme] if:
…
(b) it is not related to the participant’s disability;
…
(Emphasis added).
The Respondent’s contention, therefore, appears to be that r 5.1(b) has the effect of modifying the criteria at s 34 (a) and (b)[73] (and of necessity, s 118) of the NDIS Act, quite substantially, from what is expressed (i.e.: “assist the participant to pursue the goals, objectives and aspirations” and “assist the participant to undertake activities, so as to facilitate the participant's social and economic participation”) to only those “goals, objectives and aspirations” that the CEO is satisfied are “related to the participant’s disability”.[74]
[73]Relevantly:
(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; …
[74]WRMF [154]–[157]; [187]–[202].
Discussion
In weighing the evidence in support of the various contentions of the parties the Tribunal is mindful of the following cautionary remarks of the court in WRMF:[75]
The s 34 criteria apply to specifications of all general supports, and all reasonable and necessary supports, to be entered into a participant's plan. However s 34(1) is to be construed, it must be capable of application to the decision of each and every delegate who approves a plan under s 33(2), and to each and every plan approved. Subject to matters of procedural fairness, what should be expected of the Tribunal in deciding whether to approve a plan with (contested) specific supports claimed by a participant is no more, and no less, than what [the Scheme] requires of a delegate in non-contested plans. It is apparent from the example of the respondent's participant plans, to which we have referred above, that they are not complex documents, but they may specify a large number and wide range of supports. The inquiry required of the decision maker is therefore a targeted one, but it is not necessarily a complex one. The criteria are straightforward and pragmatic. The decision maker's approach is also entitled to be of the same kind.
Section 34(1)(a) – whether proposed support will assist the Applicant to pursue his goals, objectives and aspirations
[75]WRMF [202].
The Applicant contends that the Defibrillator would assist him as the participant for relevant statutory purposes in pursuing the goals, objectives and aspirations set out in his Plan.
[76]See above para [63].
As noted above, although not explicit in his statement of goals, objectives and aspirations, the Applicant contends that his not choking and remaining conscious is a logical precondition to realising those goals, objectives and aspirations.[76]
The Respondent’s objection to the Applicant’s contentions about this aspect of s 34 of the NDIS Act appears to devolve down to its proposition[77] about the “links between a person’s impairment and their full participation in the community”.[78] This appears to be the basis on which the Respondent contends that “there is a fundamental need to establish the links between the person’s impairment and the support to be considered.”[79]
[77]Referred to above, based on comments of Mortimer J in McGarrigle [88] and the Full Court in WRMF [154]–[157].
[78]WRMF [151].
[79]Respondent’s Outline of Submissions [25].
In passing, these submissions appear to sit uncomfortably with the Specific Support Guidelines.[80] For reasons that will be discussed in greater detail below relating to “Other Considerations”, the Tribunal finds that the Respondent’s proposition about the correct construction of s.34(1)(a) are unpersuasive.
[80]T10/74-76; 83-85.
For present purposes, it is enough to note that the provision and/or funding determination for reasonable and necessary supports required by s 34 of the NDIS Act is addressed to those “goals, objectives and aspirations included in the participant’s statement” contained in the Plan and not to the particular qualifying disability or functional impairment.
Likewise, reference to the express wording of the NDIS Act at ss 3, 4, 33 and 118, extracted and highlighted above demonstrates, without exception, the clear intention of parliament that such supports as are made available under the Scheme should “assist” or “facilitate” the “pursuit” of the articulated “goals, objectives and aspirations” of eligible participants.
As will be discussed below, the only legislative criteria that specifically excludes funding or provision of a given support is in the Rules at r 5.1(b) (i.e.: where a support “is not related to the participant’s disability”). However, this provision does not appear to add greatly in the present context, given that, by definition, all eligible “participants” must demonstrate a qualifying disability or functional impairment.[81]
[81]NDIS Act s 21.
Turning to the Applicant’s contention that his realisation of the goals, objectives and aspirations expressed in his Plan require, as a logical precondition, that he not choke and remain conscious, it is appropriate to consider the Applicant’s evidence about the extent to which he is confronted with this potential as a matter of lived experience.[82]
[82]See above para [63].
When asked directly by the Tribunal at the hearing how many times per day the Applicant struggles to clear the phlegm from his throat to the point when it is problematic, the Applicant’s evidence was as follows:[83]
[83]Transcript p 12.
MR McPHERSON:     No, that’s 10 times a day.
MEMBER:                Okay.
MR McPHERSON:     And the more I do it the more certain (indistinct).
MEMBER:Yes, a natural response to talking is the body produces more saliva, yes?
MR McPHERSON:     That - so the cancer has taken a lot from me.
MEMBER:Yes.
MR McPHERSON:     And all I want to do is risk my life as little as I can.
MEMBER:Yes.
…
MEMBER:So, in terms of those events where you’re unable to shift the phlegm and saliva, how many times a day or a week do you find yourself in a situation where you’re having difficulty evacuating that using the mechanical methods?
MR McPHERSON:     I would say at least once a day.
MEMBER:At least once a day, yes.
At the hearing, the Respondent’s expert witness gave the following evidence relating to the question of the extent to which unconsciousness of the sort described by the Applicant might become amenable to treatment by means of the Defibrillator:
MEMBER:Can you be explicit for my sake, Dr Hossack?
WITNESS:Yes. I think the primary clinical problem is the accumulation of secretions causing obstruction. The treatment of that condition is removal of the obstruction and, as I understand it, [the Suction Unit] has been provided to facilitate that emergency. If a need arose for defibrillation, it would be because the obstruction and the airway had not been satisfactorily opened and, therefore, the potential to prevent the terminal event would involve using a defibrillator. However, the likelihood of the terminal event being due to ventricular fibrillation or ventricular tachycardia is very small because there is a much higher likelihood of different abnormal rhythm problems of the heart occurring as a result of the obstructive airway. So, that not every - so the point is that not every cardiac arrest is due to ventricular fibrillation or ventricular tachycardia and in many, many cases there is no shockable rhythm. Have I made myself clear there?
MEMBER:To some extent, doctor - this is for my benefit. What I hear you saying, and please correct me if I’m wrong, is that in the case of an obstructed airway that is not cleared, there are multiple cardiac events that can occur. Let’s start with that question?
WITNESS:Yes.
MEMBER:So, is it a slim chance of a cardiac event of any kind occurring or is it a high chance if there is an uncleared obstruction to the airway?
WITNESS:There’s a slim chance of a cardiac rhythm disturbance.
MEMBER:And of that slim chance of a cardiac disturbance, what proportion of these cardiac disturbances are amenable to treatment by an AED?
WITNESS:I would estimate somewhere between 20 and 25 per cent.
MEMBER:A minority of a slim chance?
WITNESS:Exactly.
The Applicant has articulated a logical basis, supported by relevant clinical guidelines, in support of his contention that the Defibrillator might assist him as the participant in pursuing the goals, objectives and aspirations set out in his Plan to undertake activities, so as to facilitate his social and economic participation.
The evidence of the Respondent’s expert witness does not contradict the above contention of the Applicant. Rather, the Respondent’s expert witness has expressed the view that a Defibrillator would have genuine utility (albeit for a minority of instances) in that small number of the uncleared obstructions to his airway, that the Applicant states he is particularly predisposed to experience, as a consequence of his disability.
On this assessment, the Defibrillator appears to meet the requirement at 34(1)(a) of the NDIS Act.
The Specific Support Guidelines relating to s 34(1)(a)[84] are consequently of limited utility, given that these appear to conflate the verb “pursuit” with the verb “achieve”. Nevertheless, applying the plain wording of s 34(1)(a) in a manner that comports with the wider context of the NDIS Act, it is apparent that the Defibrillator would assist the Participant to pursue the goals, objectives and aspirations included in his statement of goals and aspirations, in the sense that they will “aid, support or contribute” to this end, albeit in a very small number of potential scenarios. Accordingly, the Defibrillator meets the criteria at s 34(1)(a) of the NDIS Act.
Section 34(1)(b) – Whether the support will assist Mr McPherson to undertake activities, so as to facilitate his social and economic participation
[84]Para [7].
The Applicant contends that the proposed Defibrillator would assist him as the participant in to undertake activities, so as to facilitate his social and economic participation.
[85]ST4/9 [4.2(a)]
The Applicant’s supporting evidence highlights that “The defib[rillator] will only operate on a person if there is a shockable rhythm.” As discussed above, this view corresponds with that expressed in the report provided by Dr Hossack.[85]
In the same report, Dr Hossack further stated that “the use of a defibrillator is medical treatment.”[86] Accordingly, the evidence suggests the Defibrillator is a device with a limited and clinically indicated function, having specific relevance to a narrow range of medical incidents.
[86]ST4/12 [4.6(c)]
Nothing provided to the Tribunal by the Applicant demonstrates how the Defibrillator would assist the Applicant to undertake activities, so as to facilitate his social and economic participation. That is not to say that the Defibrillator is a device without utility. Merely that it is not a device with a demonstrable capacity to “assist the undertaking of activities” which might facilitate a person in the position of the Applicant in their social and economic participation.
On this assessment, the Defibrillator does not meet the criteria at s 34(1)(b) of the NDIS Act.
Section 34(1)(c) – Whether the support represents value for money
None of the submissions on this criterion advanced by either the Applicant or the Respondent are satisfactory. The Applicant made no written submissions relevant to the question of the relative “value for money” of the device that he identified as being suitable. The submissions of the Respondent on this point unhelpfully conflate the express statutory criterion (and the related r 3.1 considerations) with the question of relative risk of harm.[87]
[87]R2/[35]; R6/[35]; Respondent’s Outline of Submissions [44]; Transcript p 54–55.
In bald factual terms, the evidence before the Tribunal is that the Defibrillator would cost $2,695.00.[88] One comparator for assessing the question of value for money of this device that has intelligently been advanced is the cost of an ambulance call-out,[89] which has been accepted between the parties as being in the vicinity of $870 within the Perth Metropolitan area.[90] The cost of a Royal Flying Doctor Service (RFDS) call-out in a remote location is accepted by the parties to be well in excess of this amount. Regardless, given that it is also accepted between the parties that, in the event of a basic life support situation an ambulance should always be called before addressing an airway obstruction,[91] the comparator is inapt. It is clearly the case that best practice requires an ambulance call out as a first response, regardless of the presence or absence of a defibrillator.
[88]Respondent’s Outline of Submissions [32].
[89]Transcript p 54.
[90]ST5/20.
[91]Exhibit A3.
It is clear then, having regard to r 3.1 above, in assessing the Defibrillator:
(a)there are no comparable supports which would achieve the same outcome as such a Defibrillator (i.e.: on-demand defibrillation) at a substantially lower cost.
This weighs slightly in favour of the Defibrillator;
(b)there is no evidence that possession of such a Defibrillator will substantially improve the life stage outcomes for the Applicant, although the evidence of the Respondent’s expert witness referred to above does tend to support the conclusion that possession of such a defibrillator may be of long-term benefit to the participant.
This weighs slightly in favour of the Defibrillator;
(c)funding or provision of the support does not appear likely to reduce the cost of the funding of supports for the participant in the long term. This consideration is of neutral weight;
(d)The Defibrillator does not appear to require the provision of additional equipment or modifications. This consideration is of neutral weight;
(e)the comparative cost of purchasing or leasing such a defibrillator over time are unlikely to be substantially different; and there are no expected changes in technology or the participant’s circumstances in the short term that would make the funding decision inappropriate. This consideration is of neutral weight;
(f)there are no such generally available defibrillators provided in the area in which the participant resides. This consideration suggests that the currently available ambulance-based defibrillation capacity in the Applicant’s residential area is already adequate in the sense that alternative supports are available to all residents of that area equally. This consideration weighs considerably against the Defibrillator;
(g)the Applicant’s contention that possession of such a defibrillator would increase his independence and reduce his need for other kinds of supports is noted, but this contention is not supported by corroborating evidence. This consideration is of neutral weight.
Given the foregoing considerations, therefore, the Tribunal is not satisfied that the Defibrillator represents value for money by reference to the relevant regulatory provisions. Accordingly, the Defibrillator does not meet the criteria at s 34(1)(c) of the NDIS Act.
Section 34(1)(d) – Whether the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice
As discussed above, the Applicant has provided ample supporting evidence that is generally corroborative of his contention that the Defibrillator is an effective and beneficial device with respect to the treatment of a very particular type of medical emergency. The Respondent’s most recent submission regarding this criterion is as follows:[92]
Obviously, having an AED would be effective and beneficial to the Applicant generally, as it would be for anyone else in the community. However, the effectiveness and benefit of the support needs to be in respect of the Applicant’s impairment, to give effect to the overarching intent and obligations of the Act, expressed above.
Here, Dr Hossack’s assessment as to the remoteness of the risk confirms that the AED is unlikely to be effective and beneficial for the Applicant’s impairment.
[92]Respondent’s Outline of Submissions [46]–[47].
This somewhat terse contention fails to assist the Tribunal in its task of applying the legislative criterion in a number of respects. Firstly, “remoteness of risk” is an obscure consideration when assessing the inherent efficacy or beneficence of a particular support in light of “current good practice”. Second, as discussed above, the principal objective of Chapter 3 of the NDIS Act is to provide a framework for developing participant plans and the making of decisions relating to the funding and/or provision of supports under those plans by the Agency.
It is apparent that the Respondent does not contradict the effective and beneficial claims for the Defibrillator made by the Applicant. The relevant portion of the Respondent’s expert witness evidence at the hearing on 5 October 2021 was when questioned by the Tribunal, as follows:[93]
MEMBER:So, is it a slim chance of a cardiac event of any kind occurring or is it a high chance if there is an uncleared obstruction to the airway?
WITNESS:There’s a slim chance of a cardiac rhythm disturbance.
MEMBER:And of that slim chance of a cardiac disturbance, what proportion of these cardiac disturbances are amenable to treatment by an AED?
WITNESS:I would estimate somewhere between 20 and 25 per cent.
MEMBER:A minority of a slim chance?
WITNESS:Exactly.
[93]Transcript p 45.

In this respect, it is not sufficient for the Respondent to step around the portion of their own expert witness’ evidence which supports the Applicant’s central contention and to deal exclusively with that aspect of the evidence which supports an unrelated point.

The Respondent’s expert witness plainly supported the proposition put to him that the relevant type of “cardiac disturbances are amenable to treatment by an AED.”
That being said, it is nevertheless a different question to assess whether the Defibrillator is or “is likely to be, effective and beneficial for the participant, having regard to current good practice”.
There were two portions of evidence provided to the Tribunal by the Respondent’s expert witness which provided important insight regarding the relevant criterion at s 34(1)(d). These were as follows:[94]
MEMBER:Can you be explicit for my sake, Dr Hossack?
WITNESS:Yes. I think the primary clinical problem is the accumulation of secretions causing obstruction. The treatment of that condition is removal of the obstruction and, as I understand it, [the Suction Unit] has been provided to facilitate that emergency. If a need arose for defibrillation, it would be because the obstruction and the airway had not been satisfactorily opened and, therefore, the potential to prevent the terminal event would involve using a defibrillator. However, the likelihood of the terminal event being due to ventricular fibrillation or ventricular tachycardia is very small because there is a much higher likelihood of different abnormal rhythm problems of the heart occurring as a result of the obstructive airway. So, that not every - so the point is that not every cardiac arrest is due to ventricular fibrillation or ventricular tachycardia and in many, many cases there is no shockable rhythm. Have I made myself clear there?
[94]Ibid.
And:
MRS McPHERSON: Thank you, Dr Hossack, this is M[r]s McPherson.

The question is, could you please detail what respiratory arrest is?
WITNESS:A respiratory arrest occurs when an individual stops breathing.
MRS McPHERSON: And then a follow-on question, what are the consequences of untreated respiratory arrest?
WITNESS:The lack of respiration results in a lack of oxygen entering the bloodstream and there is progressive reduction in the oxygen content of the blood and, as a result of that, there are changes in the accumulation of abnormal compounds within the blood and the blood via chemistry becomes abnormal and more acidic. These changes alter the normal function of all body cells. Some cells are more prone to malfunction as a lack of oxygen than other cells. For example, the brain is very susceptible to a lack of oxygen. The heart, on the other hand, is able to continuing - continue functioning for a period of time after hypoxia occurs.
MRS McPHERSON: How long does the heart continue to function in that hypoxic state?
WITNESS:The heart could continue to function for 10 or 15 minutes, whereas the brain would cease functioning in three to five minutes.
Accordingly, the expert evidence available to the Tribunal may be summarised as follows:
(a)The Applicant’s disability puts him at an elevated risk of choking (regardless of his geographic location) due to airway obstruction, as a result of the normal accumulation of saliva in circumstances where manual methods of evacuation are required;
(b)One of the further risks experienced by the Applicant in these circumstances is the risk of airway obstruction, leading to respiratory arrest;
(c)Treatment modalities for the underlying causal issue include regular manual evacuation of excess saliva, including by means of the Suction Unit and a permanent surgical intervention in the form of a toilet laryngectomy. The latter of these is not acceptable to the Applicant for understandable reasons discussed above;[95]
(d)The first response to respiratory arrest is to call an ambulance and clear the airway (there is some question as to the precise preferred order of these interventions, but they should be reasonably contemporaneous); and
(e)Unless respiration is resumed within three to five minutes, the terminal event would most likely involve neurological causes rather than cardiac arrest, given that the heart can continue to function considerably longer after hypoxia occurs.
[95]See above paras [66]–[77].
The question, then, is whether the Defibrillator will be, or is likely to be, effective and beneficial for a person in the position of the participant, having regard to current good practice in the context of his plan. On the basis of the expert evidence, the Tribunal is satisfied that, while the Defibrillator is likely to be effective and beneficial to a person experiencing a narrow range of cardiac emergencies, current good practice suggests that it is not effective and beneficial to a person experiencing respiratory arrest.
The Applicant has grounded his application for support on his being particularly prone to respiratory arrest, thereby compromising his ability to pursue his goals, objectives and aspirations. However, even if one accepts the Applicant’s contention in this respect (as the Tribunal in fact does), taken at its highest, the Applicant’s request for support seeks a device that is not effective and beneficial in dealing with respiratory arrest, having regard to current good practice. Accordingly, the Defibrillator does not meet the criteria at s 34(1)(d) of the NDIS Act.
Section 34(1)(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
Neither the Applicant nor the Respondent specifically address this criterion in submissions to the Tribunal.
The Applicant states that he enjoys a network of support and care, comprising his spouse, his neighbours, a trainee assistance animal and a motion-activated personal emergency device.[96] None of these support systems can replace the Defibrillator. However, given that such a device requires the intervention of another person, it is sufficient to note that the Applicant has the requisite system of support to enable the effective utilisation of such a Defibrillator. To this extent, the Tribunal has taken account of the relevant consideration.
[96]Exhibit A2 p 3.
Section 34(1)(f) – The support is most appropriately funded or provided through the Scheme
As will be discussed immediately following, this criterion is not relevant in circumstances where the NDIS rules have excluded the provision or funding of the requested support.
As will be seen, the Tribunal is satisfied that the expert evidence relating to the Defibrillator is compelling. As a device with the sole operational function of providing emergency medical treatment, the Defibrillator is an excluded support under r 7.5(a). Accordingly, it is not necessary to consider whether the NDIS is the most appropriate funder or provider of the Defibrillator. This criterion is not met because of the findings below with respect to s 34(1)(g) of the NDIS Act.
Section 35(1)(b) – The support is not prescribed by the Rules as a support that will not be funded or provided under the Scheme.
By reference to the evidence of the Respondent’s expert witness, it might be objected that the Suction Unit is equally excluded from the Scheme on the basis that it is equally a form of “medical treatment”. However, it is noted that the relevant expert evidence was provided in the context of a specific medical emergency.[97]
[97]Transcript p 45.
The Applicant’s evidence[98] is that the Suction Unit is an important part of his daily saliva management routine, helping him to prevent a dangerous build-up of mucus. In this context, it will be appreciated that the Suction Unit has a prophylactic, functional benefit to the Applicant which assists him in pursuing his goals, objectives and aspirations from day to day. This benefit clearly falls within the relevant NDIS rules in those terms. To the extent that it may also serve a secondary purpose in the terms described by the Respondent’s expert witness as being collateral with “medical treatment” in the event of respiratory arrest, it would be an excluded support. Given that the device has two functions, the Tribunal is satisfied that it was properly funded in his Plan.
[98]A12 [2.2].
The Tribunal is satisfied that the expert evidence relating to the Defibrillator is compelling. As a device with the sole operational function of providing emergency medical treatment, the Defibrillator comes within the class of excluded supports under r 7.5(a). Accordingly, the requested support also falls within the definition of an excluded support at s 35(1)(b) of the NDIS Act.
“Other” Considerations
As noted above, the Respondent cites r 5.1(b) extracted above which states that:
5.1 A support will not be provided or funded under [the Scheme] if:
…
(b)it is not related to the participant’s disability;[99]
…
(Emphasis added).
[99]See above para [94]
Something should be said about the implication that r 5.1(b) has the effect of modifying the criteria at s 34 (a) and (b)[100] (and of necessity, s 118), quite substantially, from what is expressed (i.e.: “assist the participant to pursue the goals, objectives and aspirations” and “assist the participant to undertake activities, so as to facilitate the participant's social and economic participation”) to only mean only those “goals, objectives and aspirations” that the CEO is satisfied are “related to the participant’s disability”.[101]
[100]Relevantly:
(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; …
[101]WRMF [154]–[157]
Such a construction of the Scheme would require a significant portion of the NDIS Act to be read down through the aperture of a single subclause of a single Rule made pursuant to s 209 of the NDIS Act.[102]
[102]Cf: WRMF [2020] FCAFC 79 [154]–[157]; [187]–[202].
With respect, the passage of WRMF on which the Respondent bases its submission relating to the requirement of requested supports to be “linked” to a particular disability does not provide the clear authority required to make such a finding. As highlighted above, the existence of a disability is the qualifying requirement for a person with a disability to become a recognised “participant”; from that point forward, the decisions on supports are based firmly on the terms of the participant plan. As discussed by the Court in WRMF:[103]
Nevertheless, there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet 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 for that support, for a particular participant. As we have already explained, the phrase also 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. It is not accidental, in our opinion, that Parliament has chosen the term 'participant' to describe individuals who will receive funded support: the choice of that term reinforces, as we have sought to explain, that the driving objective of this Act is the holistic, improved and increased participation by persons with disability in the life of their communities, and in life itself.
[103]WRMF [151].
Conclusion
As discussed above, the Tribunal is satisfied that requested support, being a Defibrillator, meets the criteria for a reasonable and necessary participant support for the Applicant at s 34(1)(a) of the NDIS Act.
However, as discussed above, the Tribunal is not satisfied that the Defibrillator meets the criteria for a reasonable and necessary participant support for the Applicant at s 34(1)(b), (c) and (d) of the NDIS Act. The Tribunal also finds that, being a “medical treatment” device, the Defibrillator is otherwise an excluded support by operation of Rule r 7.5(a).
As a consequence, the Defibrillator is an excluded support for the purposes of s 35(1)(b) of the NDIS Act. Accordingly, no consideration under s 34(1)(f) is required.
Decision
The reviewable decision, made on 3 July 2020, refusing the request by Mr McPherson for funding for a Defibrillator machine, is affirmed.

I certify that the preceding 143 (one hundred and forty-three) paragraphs are a true copy of the reasons for the decision herein of Member Dr C Huntly

...........[sgd]...........................................................
Associate
Dated: 17 December 2021

Date of hearing:

Representative for the Applicant: Self-represented

Representative for the Respondent: Mr C West, Sparke Helmore Lawyers

Counsel for the Respondent:

Mr P Nolan

T1D/13 (see: Exhibit A3 at [19] per the Applicant and Exhibit R2 at [29] per the Respondent).

NB: These goals have since changed as per the Applicant’s Current Plan, which refers to the Applicant being “able to confidently access the community, participate in community events and socially interact with people.”

[2021] AATA 4682

17 December 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Remedies

Date of hearing:
Representative for the Applicant:	Self-represented
Representative for the Respondent:	Mr C West, Sparke Helmore Lawyers
Counsel for the Respondent:	Mr P Nolan