MDCT and National Disability Insurance Agency

MDCT and National Disability Insurance Agency [2022] AATA 697 (31 March 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/4203
Re:MDCT
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Deputy President I R Hanger AM QC
Date:31 March 2022
Place:Brisbane

The Decision under Review is affirmed.
...........................[SGD]................................
Deputy President R I Hanger AM QC
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – funding of supports – reasonable and necessary – home modification – external modification – capital building – support related to disability – decision affirmed
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013(Cth)
Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
National Disability Insurance Agency v WRMF [2020] FCAFC 79
WRMF and National Disability Insurance Agency [2019] AATA 1771
XYZ V Commonwealth (2006) 227 CLR 352
Secondary Materials
NDIS funding Guideline, Including Specific Types of Support in Plans Operational Guideline - Home modifications
REASONS FOR DECISION
Deputy President R I Hanger AM QC
31 March 2022
BACKGROUND

The issue in this matter to put it shortly is whether or not the Respondent should fund the cost of building steps in a backyard with egress to terraces and a jetty into a lake under the Applicant’s current National Disability Insurance Scheme Plan (‘NDIS’).
The decision under review is a decision dated 10 July 2020 made pursuant to section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (‘the act’).[1]
[1] Exhibit 1, T Documents, T2, 58-65
That decision varied a decision made on 28 April 2020[2] to approve a statement of participant supports under subsection 33(2) of the act which was further varied in the Tribunal proceeding.
[2] Ibid T19, 142-152
On 18 June 2019 the Respondent approved an NDIS plan for the Applicant which provided for total funded support in the amount of $19,726.26 for the period 18 June 2019 to 17 June 2021.[3] On 28 April 2020 the Respondent approved a further plan which provided for total funded supports of $23,729.15 for the period 28 April 2020 to 28 April 2021.[4] The Respondent advised the Applicant that a request for funding of home modifications had been declined. [5]
[3] Ibid T18, page 132-141
[4] Ibid, T19, 142–152
[5] Exhibit 2, Supplementary T Documents, ST1, 258-259
On 20 May 2020 the Applicant requested a review of the original decision.[6]
[6] Exhibit 1, T Documents, T8, 90
On 10 July 2020 the delegate of the Respondent determined that the funding of the above home modifications to the rear of the property was not reasonable but considered that funding could be provided to facilitate the Applicant moving to a more accessible property and that an allowance of $52,636 would be reasonable for that. As a result of the decision on 10 July 2020 the Respondent approved a further NDIS plan for the Applicant which provided for total funded supports in the amount of $81,405.15 for the period 10 July 2020 to 10 July 2021.[7]
[7] Ibid T20, 153-165
By consent of the parties on 11 June 2021 the Tribunal remitted the decision under review for reconsideration and following the remittal the Respondent implemented a further NDIS plan which provided for funding in the amount of $81,798.35 for the period 15 June 2021 to 15 June 2022.
On 25 June 2020 Aspire Allied Health Pty Ltd provided a quote for home modifications in the amount of $205,700. Put simply the building work involved the construction of steps from the Applicant’s home down with egress to terraces, and including a jetty into the lake at the rear of his property.
The issue for me to determine is whether the Tribunal should approve home modifications which the Applicant says are necessary to establish safe and secure access to his rear garden, backyard and lake at the edge of his property, as being reasonable and necessary supports to be funded by the NDIS.
The Applicant
The Applicant is 64. He lives in a home bordering on a lake at Robina and lives with his friend Karen Kline. Ms Kline also acted as an advocate for the Applicant for this review. He graduated in dentistry and worked for about five years as a dentist and then lost his vision over a two-week period from a disease known as Leber’s Optic Neuropathy. He is essentially blind and relies principally upon his peripheral vision. To his great credit after becoming blind he studied law, won the university medal and a scholarship to Oxford University. He worked for 20 years as a lawyer and served on various Tribunal’s and then completed a PhD in Guardianship law from the Queensland University of Technology.
He also suffers from diabetes and during the COVID-19 pandemic (the pandemic) has therefore been substantially confined to his home. During the pandemic most of his recreational activities ceased but he continues to walk his dog twice on a daily basis. He walks either around Westlake and through Robina Common or to a local park. He has befriended other dog owners in the area and his neighbours. Prior to the restrictions imposed by the pandemic he played Bridge 2 to 3 times a week, and was able to access the bus to enable him to go for a walk on the beach or to purchase fruit at Pacific Fair.
He inherited his present home on the shore of Lake Robina from his father a couple of years ago. That property has a swimming pool which he uses and maintains. He enters the swimming pool by feeling the fence or a grab rail. He orientates himself in the pool by feeling the walls and exits the pool via pool steps.
He appears well-built and not overweight. He is in reasonable health and exercises a lot and maintains careful control over his diabetes. His NDIS goal is to live as independently as possible and to live safely at home. Because he lives in a waterfront home, he would like to access the lake to go fishing and boating in a two-person paddle boat. The paddle boat is probably more aptly described as a pedal boat. It is propelled by the occupants peddling.
The Applicant gave evidence that he wants to maintain his independence and be able to do things by himself. He does not want to be restricted about where he goes or with whom he goes. He enjoys being able to catch a bus and linking with the railway. He enjoys walking on the beach and then being able to get back on the bus to get home. He wants to do as much as he can by himself.
He gave evidence that he recalls enjoying time on a paddle boat at age 13 in Switzerland. He can’t do that without proper access to the lake by means of a pontoon or jetty of some kind. He also says that he would like better access to his garden to enable him to weed it. This would require steps from his house down to the proposed jetty to have landings from which he could access the levels of the garden. At present, gardening in that vicinity is paid for by the NDIA. There are other gardens in the property which are cared for by Ms Kline who lives with him.
The Applicant suffers from diabetes, meaning he may at some point have his limited vision reduced by virtue of a progression in his diabetic condition. Obviously to go out on the water as he proposes would entail his getting onto a watercraft, the possibility of its capsize, and the possibility that he might have to swim to shore which he is unable to see. I am satisfied on the evidence that he could learn to safely board a paddle boat. If the unfortunate situation should occur that he capsizes in the lake and must unaided extricate himself from that situation, that is a risk which he, as an intelligent man, must weigh up for himself. That is a reasonable risk about which he can exercise his own choice in accordance with the general principles set out in section 4(4) of the act
In cross-examination he agreed that he has not tried to hire or obtain the use of a paddle boat elsewhere on the Gold Coast to ascertain whether he enjoys the exercise or not. He was asked about the risks involved in paddle boating on his own and said that it was his intention to get a two-seater and getting named friends to join him as passengers but he agreed that he hasn’t discussed his proposal with them. One of the reasons he initially gave for getting a paddle boat was to go fishing but he agreed that was not a big consideration and while he is close friends with a man who does a lot of fishing he has not been out fishing with him since 1985.[8]
[8] Transcript of Proceedings dated 20 December 2021 (Deputy President Hanger 2020/4203 MDCT and NDIA), 35, lines 5–10.
The Applicant also contends that he would like to be able to take his dog down steps onto a jetty to the water. However in answer to the question: “So do you need the jetty so the dog can go out on the jetty to go in the water? – – – No he’s not going to go in the water”[9]
[9] Ibid 41, lines 22-23.
Given his failure to attempt to even try out paddle boating during his blindness and given the fact that he had not talked to any friend other than the lady who lives with him about going paddle boating on the lake I am not satisfied that the construction for which he seeks funding will contribute to his social participation in the community.
The home of the Applicant
His home fronts the Robina Lake. It is not an issue that he does not have physical access to the lake to enable him to use a watercraft. At the water’s edge are rocks which would need to be traversed by anyone accessing the lake from the property. Between the house and the lake is a staircase which is in a dilapidated state. There has been some subsidence said to be caused by erosion. It is clear that the steps have not been maintained. Adjacent to this staircase are terraced gardens which are presently maintained by a gardener funded by the Respondent. The Applicant says that he would like to be able to weed the garden himself and not rely on somebody else to do it.
Psychologist Report
The Applicant’s psychological state was a minor issue in the proceedings before me
The Applicant was interviewed by telephone by Mr Tierney, a provisional psychologist who provided a report. That report was reviewed by psychologist, Ms Kasberger, but was completed by My Gavin Tierney, who was a provisional psychologist at the time. The report recommends that to improve his quality of life he needs to be afforded more opportunities to engage in his preferred activities in a safe environment. It suggests that having a pool and a lake at his disposal increases his opportunities for social and leisure activities and could be taken advantage of fully with the appropriate safety supports in place. It refers to his having elevated stress levels which could be reduced by engaging in relaxation or mindfulness exercises. He suggested being able to participate in enjoyable activities, like going out for dinner, engaging in leisure activities or relaxing at home are ways that he could reduce his stress levels. The psychologists concluded that his depression and anxiety scores were in the normal range and his stress level was elevated to the mild range. They said that it could be argued that if he were not in dispute over NDIS funding his stress levels would be normal.
Occupational Therapist Evidence
Ms Deborah Hammond visited the Applicant’s home on 15 June 2021 and provided a report dated 16 June 2021. Ms Hammond was asked as to whether she identified any particular issues in the backyard of the property that she considered posed a safety risk to a person who might access the backyard.
She identified multiple issues, which included:
(a)the absence of a handrail adjacent to the steps;
(b)erosion under the landings which created a step hazard as well as being slippery due to mould contamination and vegetation growth;
(c)the height of risers and treads/goings was inconsistent;
(d)there was no nosings on the step edge to aid visual discrimination;
(e)timber box framing was falling away from the steps undermining the stability of the step and creating a trip hazard;
(f)mould contamination on steps and landing creating a slippery surface;
(g)weeds encroaching on the step creating a slippery surface;
(h)there was uneven ground on either side of the current steps;
(i)erosion of the rear yard and failure of the retaining walls increasing the slope to the lake.
Ms Hammond was asked as to whether the supports sought by the Applicant relate to his disability. She opined that the rectification of the rear access was not required for the Applicant’s continuing occupancy of the property and for his enjoyment of the rear deck and swimming pool. She said the rear access (which includes the steps and the rocks on the edge of the lake was unsafe for all persons who want to access the lake from the home. She noted that neither the Applicant nor his father from whom he inherited the property had used the lake for recreational purposes. She said she did not believe that the Applicant should be engaged in weeding on the terraced areas at the rear of the property as that remains a risky activity, notwithstanding, a recommendation that had been made by the Applicant’s occupational therapist, namely that a handrail across the terraced areas of the garden be installed. She said that the rear of the property would continue to experience erosion and subsidence and as such, the slope of the terraced areas would remain challenging.
To put her evidence shortly, she was of the opinion that the modifications proposed were not necessary for him to continue to enjoy his home but that the proposed modifications would provide better access for any person who wished to access the lake from his home. I am satisfied on the evidence which is supported by Mr Chalker that the steps are unsafe for anyone[10] because they have not been maintained.
[10] Exhibit 14, Xpert Building Independent Builders Report
She was cross-examined and criticised for providing a report as speedily as she did. Any criticism for the speed with which she worked, or the way in which she worked is unjustified. She has nearly 40 years’ experience in her profession and was a fair and impressive witness. I accept her evidence.
Waeeda Ely is an occupational therapist in Southport. In 2008 she began a business called Aspire Occupational Therapy (‘Aspire’) and subsequently joined forces in partnership with Mr Campbell who is a builder, at which point the business name because Aspire Allied Health and Home Modifications. Between 85-90% of Aspire’s workload emanates from NDIA referrals. She submitted a report which related to complex home modifications for the Applicant. She then submitted another document dated 15 May which was a response to the original rejection that the Applicant received for the home modifications. She subsequently responded to a report letter from another builder Gentry Construction and also to the assessment by Ms Hammond. She visited the Applicant’s property between three and five times and had one of her occupational therapy staff work on providing reports.
Doubtless for good commercial reasons Ms Eli has a builder as a partner in her business but it is a matter that causes me some concern because one part of her business provides a report as an independent expert and another part of the business quotes on carrying out the work suggested in the Occupational Therapy report. The builder stands to benefit from the OT report and the therapist or her company benefits from the builder doing the job. She appears to have two letterheads. One is entitled “Aspire Occupational Therapy” and the other is entitled “Aspire Allied Health and Home Modifications”. To her credit Ms Ely did not attempt to hide the relationship between herself and the builder and gave evidence that she disclosed the relationship to the Applicant. That is hardly adequate given that the Applicant would not be personally funding the building work recommended by the occupational therapist. That does not mean that the evidence of Ms Eli or of the builder should necessarily be rejected. However the evidence of each must be considered in light of what seems to me, a clear conflict of interest. Each has a vested interest in their evidence being accepted.
She gave evidence that the replacement of the stairs was justified because it was necessary to access stairs to enable the Applicant to descend from one level to another for the purpose of weeding a garden. The Applicant said that he wanted to weed his garden. She was asked about getting access to the lake and whether he would benefit from using a boat or double paddle boat on the lake and she said:[11]
“I’ll come back to occupational performance and if that’s the choice for him to participate in that leisure activity, it would give him quality of life, it would give him validation as an overall, he is out in the sun so it would be good for his emotional state as it would be good for anyone else. For me to go to the gym. So yes, he would benefit. It would improve his quality of life.”
She therefore supported the installation of a stairway and jetty constructed in one piece that would enable him to access the garden and the water.
[11] Transcript of Proceedings dated 20 December 2021 (Deputy President Hanger 2020/4203 MDCT and NDIA), 83, lines 38-43
The conclusion that I drew from reading her various reports and considering her oral evidence before me was that she was much more of an advocate for the Applicant than an expert witness. I attempted to clarify her role and she agreed that it was “to advise the client on the best means by which he can achieve his aim”[12]. She agreed that it was not her role in any way shape or form to consider the cost of achieving the client’s goal.[13] I prefer the evidence of Ms Hammond.
[12] Ibid 81, lines 22-23
[13] Ibid 81, lines 34-35
Considering the Occupational Therapy evidence as a whole and the photographs that have been tendered in evidence, I am satisfied that:
(a)the existing steps are unsafe for anybody;
(b)they have become that way through lack of maintenance. It is suggested that the existing problems are caused by erosion. The cause of their dilapidation does not really matter. The reality is that they have not been maintained by the owner of the property.
Building Evidence
A substantial amount of time was taken in the hearing by the evidence of builders.
On behalf of the Applicant evidence was given by Mr Campbell who is a director of Aspire Allied Health. He proposed and quoted on a galvanised steel structure which involved the jetty and the stairs being constructed in one piece. The jetty would be cantilevered over the lake. He argued for galvanised steel because of its longevity and the fact that it did not need maintenance. It would have to be lifted in one piece over the roof of the Applicant by a crane to place it in his backyard and over the water. The estimated cost was $205,000.[14]
[14] Exhibit 1, T Documents, T10, 94-95
A second quote had been given by Welcome Homes at $237,000.[15]
[15] Ibid T4, 68
The estimates made by Mr Campbell were criticised by Mr Gibson as being too high. Mr Gibson said that he was able to establish that particular materials that were included in the quote of Mr Campbell could be obtained at a much cheaper price. Mr Gibson suggested the structure proposed could be properly made out of timber rather than galvanised steel at a much cheaper price. He disagreed that timber would not last a reasonable time and suggested it would last 20 years. He referred to the quote of Mr Campbell as being extravagant.
I prefer the evidence of Mr Gibson to that of Mr Campbell. He was an impressive witness and as I have already said I have a concern about the quote of Mr Campbell who is in partnership with the occupational therapist who recommends that the structure be built. Furthermore Mr Campbell stands to gain if the work is done. Mr Gibson does not. Suffice to say for present purposes that the proposed construction of new steps and a jetty/pontoon is expensive and will obviously be well in excess of $100,000. If the funding is found to be appropriate, Mr Campbell’s quote which he said in evidence was firm, the price would be $205,000.
Relevant Legislation

The objects of the act as set out in section 3 include:
(a)support the independence and social and economic participation of people with a disability;
(b)provide reasonable and necessary supports, including early intervention supports, for persons in the National Disability Insurance Scheme;
(c)to enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports;
(d)promote the provision of high-quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community.
Section 4 sets out general principles guiding actions under the act. They are as follows:
(1)People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
(2)People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.
(3)People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(4)People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5)People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
(6)People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation.
(7)People with disability have the same right as other members of Australian society to pursue any grievance.
(8)People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.
(9)People with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.
(10)People with disability should have their privacy and dignity respected.
(11) Reasonable and necessary supports for people with disability should:
(a) support people with disability to pursue their goals and maximise their independence; and
(b) support people with disability to live independently and to be included in the community as fully participating citizens; and
(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
(12)The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.
(13)The role of advocacy in representing the interests of people with disability is to be acknowledged and respected, recognising that advocacy supports people with disability by:
(a) promoting their independence and social and economic participation; and
(b) promoting choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(c) maximising independent lifestyles of people with disability and their full inclusion in the community.
(14)People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme.
(15)Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.
(16)Positive personal and social development of people with disability, including children and young people, is to be promoted.
(17)It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:
(a) the progressive implementation of the National Disability Insurance Scheme; and
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme.
Section 17 A provides: –
17A Principles relating to the participation of people with disability
(1) People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.
(2) People with disability will be supported in their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised.
(3) The National Disability Insurance Scheme is to:
(a) respect the interests of people with disability in exercising choice and control about matters that affect them; and
(b) enable people with disability to make decisions that will affect their lives, to the extent of their capacity; and
(c) support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability.
Being an NDIS Participant
When a person becomes a participant in the NDIS the CEO of the Respondent must facilitate the preparation of a plan for the participant. Section 31 provides that the plan must maximise the choice and independence of the participant and be underpinned by the right of the participant to exercise control over his or her own life. Section 33 of the act further provides that the plan must specify the participant’s goals and objectives and aspirations. The plan must include a statement called the statement of participant supports. That statement must specify matters including the reasonable and necessary supports that will be funded under the NDIS.
In deciding whether or not to approve a statement of participant supports the CEO and here this Tribunal must have regard to a number of matters and in particular whether supports are reasonable and necessary.
Section 34 of the act provides as follows:
Reasonable and necessary supports
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative supports;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(2)The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
Pursuant to section 34(2) rules have been promulgated.[16] Rule 3.1 deals with the issue of whether the support proposed represents value for money (as is required by section 34(1)(c)) in that the costs of the support are reasonable, relative to both the benefits achieved in the cost of alternative support in particular the decision maker is required to consider whether there is evidence that the support will substantially improve the lifestyle outcomes for and be of long-term benefit to the Applicant; whether funding of the support is likely to reduce the cost of funding in the long-term and whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of support.
[16] National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (‘the Rules’).
Part 5 of the Rules sets out general criteria for supports in the following terms: –
5.1 A support will not be provided or funded under the NDIS 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 participants 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 our participants disability support needs.
The Respondent has also developed guidelines which relate to home modifications to which reference will be made later.
Consideration of Issues
In taking an overview of the act, Deputy President Rayment said:[17]
4(1) of the Act makes it a general principle, guiding actions under the Act that people with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development. This principle seems to me to be aimed at bringing about, to the extent practicable, equality between people with a disability and others in the society in a manner going to physical, social, emotional or intellectual development. The act intends that the executive will recognise rights to such development equally with others to extent possible.
[17] WRMF and National Disability Insurance Agency [2019] AATA 1771, [23]
In National Disability Insurance Agency v WRMF [2020] FCAFC 79 (‘WRMF’) at [138] the Full Court of the Federal Court discussed the relevant features of the legislative scheme saying:
In dealing with legislation such as the act, a number of particular considerations should be remembered. First, the subject matter of the NDIS legislation is unique, as is its structure: it embeds an approach to the support of persons with disability which was previously non-existent. It incorporates a number of values which are integral to the legislative scheme. It is always necessary to ensure that constructional choices, and construction, are undertaking in paying a sufficient regard to the legislative scheme as a whole, for that forms the context for any particular provision … In the case of the act, because of its particular features, the need to examine particular provisions in the wider context of the scheme as a whole is especially important
in determining whether a statement of participant support should be approved under section 33 of the act the Tribunal must decide whether the particular support is “reasonable and necessary.”
The Federal Court dealt with this phrase in WRMF saying, the phrase is a composite phrase. We accepted the agency’s submissions that each limb of the phrase should be given work to do. That task is not difficult, or complicated, with these two particular words which are readily understood as conveying different meanings. However, the parliament has chosen to use a composite phrase rather than to stipulate two distinct requirements and therefore as Gleeson CJ cautioned in XYZ V Commonwealth (2006) 227 CLR 352 at [19], “there are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts”.
The court said in WRMF at [150-151]:
In our opinion, such a danger is present on the construction the evidence presented by the agency. Both adjectives qualify the noun “support”, they do so as a composite phrase. It is not fruitful to split them off and consider them separately, just as it is neither fruitful nor appropriate to attempt any exhaustive or authoritative judicial definition of them.
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 therefore participation in the community, in the same variety of ways as persons without a disability might choose to participate.
In the present case the Applicant seeks funding which ranges from $100,000-$205,000 to build a galvanised staircase and jetty in one piece to enable him to better access the garden at the rear of his property and to enable him to access the water so as to purchase and use a paddle boat.
In determining this matter I am obliged to have regard to NDIS funding guidelines,[18] entitled “Including specific types of support in plans- operational guideline – home modifications”. It is a reasonable assumption that guideline is intended to apply not only to the home but to the area of land on which it is located. I note also that it is intended to apply to “frequently used areas”.
[18] Exhibit 43, NDIS funding Guideline, Including Specific Types of Support in Plans Operational Guideline – Home modifications (‘the Guideline’)
The Guideline states:
Generally, the NDIA will fund reasonable and necessary home modifications:
to the participant’s primary residence where, due to the impact of the participants disability, the participant or their carers are unable to reasonably access and use frequently used rooms and spaces using standard fixtures and fittings;
when the participant’s primary residence, in its current condition, has a significant and adverse impact on the sustainability of current living and care arrangements; and
where a suitably qualified Occupational Therapist has performed an assessment and recommended home modifications considering all possible alternatives, including the use of equipment.
The Guideline also sets out a list of matters which the NDIS will generally not fund:
the installation of swimming pools (including hydrotherapy) and spas;
repairs or remediation of damage to the home that is pre-existing or discovered during the modification process
ongoing repairs and maintenance to non-specialised structures, fixtures or fittings of the home even when these form part of the modification work. For example, repainting a modified bathroom and maintaining plumbing
capital building additions such as addition of rooms, stories or lifts or inclinators to allow access to multiple levels of a home or steep blocks of land.
However when considering whether the funding of items of this kind is reasonable and necessary the NDIA will also consider:
(i)whether other parts of the house can be reasonably organised as an alternative;
(ii) whether alternate accommodation which is more reasonable or more easily modified is available and the cost;
(iii)whether there are compelling factors related to the participant, their family, community or employment which makes moving premises unrealistic;
(iv)the long-term costs and benefits of alternative funded supports against the cost and benefits of the modifications to the home.
The guidelines are of course just a guide but it is useful to refer to them in an unusual case of this nature for assistance. Notwithstanding that the Tribunal’s role is to make the correct or preferable decision; the Tribunal notes that the NDIA operational guidelines represent government policy intended to guide a decision maker. The Tribunal “will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision … cogent reasons will have to be shown against its application”.[19]
[19] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645 (Brennan J).
Swimming pools and spas are not generally funded. These are significant improvements to land on which a home is situated and may be extremely useful to improving property value, amongst other things and much desired.
It seems to me that a jetty or pontoon into a lake is comparable.
Repairs or remediation of damage to a home that is pre-existing are not covered by the scheme.
The backyard which contains the steps fall into that category.
Capital building additions such as the addition of rooms, stories or lifts or inclination is to allow access to multiple levels of a home or steep blocks of land are not generally funded.
The construction sought in this matter consisting of a jetty is a very significant capital addition. The construction of replacement steps and jetty in one structure arguably constitute an even greater capital addition. The guidelines contain a qualification relating to capital building additions and refer to the alternate accommodation which can be modified. Alternate accommodation has been offered to the Applicant but declined.
The purpose of this legislation is to enable people with disabilities to live as normal a life as possible given the disability. It is not to elevate them into a special category beyond that, so as to satisfy every want.
In the present case, what the Applicant seeks is not associated with his disability. He seeks a new staircase because the other one has fallen into disrepair and is unsafe for anybody, able-bodied or not able-bodied. He seeks a jetty attached to it because that would enable him to go paddle boating. That is not associated with his disability as required in Rule 5.1(b).
I am not satisfied under section 34(1) that the proposed structure\structures would facilitate the Applicant’s social participation.
I am not satisfied under section 34(1) that the proposal represents value for money.
I am satisfied that contrary to Rule 5.1 the proposed support is not related to the Applicant’s disability.
I am satisfied that the proposal does not fall within the ambit of modifications that will be covered and does fall within the ambit of modifications that will not be covered in the operational guidelines relating to home modifications.[20]
[20] Exhibit 43.
Applying the WRMF decision, I am not satisfied that the creation of new steps and a new jetty as sought by the Applicant are “reasonable and necessary” as required by section 34.
DECISION
The decision of the Respondent dated 10 July 2020 is affirmed.

70. I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President R I Hanger QC

........................[SGD]................................
Associate
Dated: 31 March 2022

Date of hearing:

20, 21 and 22 December 2021

Applicant Counsel:

Simon Tisher

Applicant Advocate:

Karen Kline

Respondent Counsel:

Matthew Gollan

Respondent Solicitor:

Minter Ellison

[2022] AATA 697

31 March 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Date of hearing:	20, 21 and 22 December 2021
Applicant Counsel:	Simon Tisher
Applicant Advocate:	Karen Kline
Respondent Counsel:	Matthew Gollan
Respondent Solicitor:	Minter Ellison