Medcalf and National Disability Insurance Agency
[2018] AATA 3893
•16 October 2018
Medcalf and National Disability Insurance Agency [2018] AATA 3893 (16 October 2018)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2017/3175
Re:Phillip Medcalf
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Dr I O'Connell, Senior Member
Date:16 October 2018
Place:Sydney
1.Pursuant to s 42C(3) of the Administrative Appeals Tribunal Act 1975(Cth) (the AAT Act), the Tribunal gives effect to the terms of agreement reached between the parties as follows:
(a)the decision of the respondent made on 2 May 2017 be varied in part such that the following will be funded as reasonable and necessary supports over a period of 12 months, in accordance with s 34 of the National Disability Insurance Scheme Act 2013 (Cth):
(i) Hoist at $3,546.00;
(ii) Bed at $1,580.00;
(iii) Leg splints at $3,090.00;
(iv) Ramp and rails at $2,080.00;
(v) Fortnightly physiotherapy sessions;
(vi) Staff training at $7,893.36 (twice per annum);
(vii) Co-ordinator of supports at 104 hours per annum; and
(viii) Transport at level 3.
2.Pursuant to s 43(1) of the AAT Act, the Tribunal varies in part the decision of the respondent made on 2 May 2017 as follows:
(a)The portable lounge suction pump is a reasonable and necessary support which is to be fully funded under the National Disability Insurance Scheme;
(b)The oral hygiene devices are a reasonable and necessary support which is to be fully funded under the National Disability Insurance Scheme; and
(c)The power wheelchair is a reasonable and necessary support which is to be fully funded under the National Disability Insurance Scheme; and
(d)The core supports are a reasonable and necessary support which is to be funded under the National Disability Insurance Scheme in accordance with this decision.
........................[sgd]................................................
Dr I O'Connell, Senior Member
Notes
It is noted that the parties have agreed that:
1.The ‘Hoist’ in paragraph 1(a)(i) above is the hoist mentioned in paragraph 4 (1st category), subparagraph (c) of the Respondent's Statement of Facts, Issues and Contentions (SFIC) dated 19 January 2018, and in paragraph 4 of the Applicant's Statement of Position (SOP) dated 22 March 2018.
2.The ‘Bed’ in paragraph 1(a)(ii) above is not mentioned in the Respondent's SFICs dated 19 January 2018. The Applicant subsequently clarified the scope of his application for review dated 1 June 2017 as including a bed (as opposed to a ‘sleep system’), and the claim is mentioned in paragraph 2 of the Applicant's SOP dated 22 March 2018.
3.The ‘Leg splints’ in paragraph 1(a)(iii) above are the leg splints mentioned in paragraph 4 (1st category), sub-paragraph (d) of the Respondent's SFICs dated 19 January 2018, and in paragraph 5 of the Applicant's SOP dated 22 March 2018.
4.The ‘Ramp and rails’ in paragraph 1(a)(iv) above are the ramp and rails mentioned in paragraph 4 (2nd category) of the Respondent's SFICs dated 19 January 2018, and in paragraph 9 of the Applicant's SOP dated 22 March 2018.
5.The ‘Fortnightly physiotherapy sessions’ in paragraph 1(a)(v) above is the agreement arising from the Applicant's claim for weekly physiotherapy sessions, mentioned in paragraph 4 (3rd category), sub-paragraph (a) of the Respondent's SFIC dated 19 January 2018. The agreement for fortnightly physiotherapy sessions is mentioned in paragraph 10 of the Applicant's SOP dated 22 March 2018.
6.The ‘Staff training’ in paragraph 1(a)(vi) above is the staff training mentioned in paragraph 4 (4th category), sub-paragraph (a) of the Respondent's SFIC dated 19 January 2018, and in paragraph 12 of the Applicant's SOP dated 22 March 2018.
7.The ‘Co-ordinator of supports’ in paragraph 1(a)(vii) above is the co-ordinator of supports mentioned in paragraph 4 (4th category), sub-paragraph (c) of the Respondent's SFIC dated 19 January 2018 and in paragraph 14 of the Applicant's SOP dated 22 March 2018.
8.The ‘Transport’ in paragraph 1(a)(viii) above is the transport mentioned in paragraph 4 (6th category) of the Respondent's SFIC dated 19 January 2018, and in paragraph 16 of the Applicant's SOP dated 22 March 2018.
9.As soon as practicable after receiving the Tribunal's decision the Respondent will put in place a 12 month plan that includes a statement of participant supports in accordance with the Tribunal's decision.
10.The funding of these supports for a 12 month period does not give rise to an understanding by the parties that the funding will be continued beyond that period.
11.These terms are only a settlement of the supports mentioned in the terms. The remaining issues in the Respondent's SFIC dated 19 January 2018 and in the Applicant's SOP dated 22 March 2018 are to be determined by the Tribunal.
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – whether the proposed additional supports or increased level of supports are reasonable and necessary – multiple supports in dispute – assistive technology including suction pump, nebuliser, generator, Blueys, hand gel, peri foam, disinfectant, syringes booster pad, gloves and visalax – home modifications – improved daily living – support coordination – sustaining informal supports, including offsite respite care overnight and accommodation for the applicant’s parents – decision varied
PRACTICE AND PROCEDURE – agreement reached between parties in relation to part of the proceedings – effect given to agreement between the parties pursuant to s 42C(3) of the Administrative Appeals Tribunal Act 1975 (Cth)
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 25, 42C, 42C(3)
National Disability Insurance Scheme Act 2013 (Cth), ss 3, 3(3)(b), 3(3)(d), 4, 4(5), 4(11), 32, 32(1), 33, 33(2), 34, 34(1), 100(6)(b), 103, 209(1)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth), cls 1.1, 1.2, 1.3, 1.4, 3.1, 3.3, 5.1, 5.2, 7.4, 7.5,
CASES
Fear by his mother Vanda Fear and National Insurance Agency [2015] AATA 706
JQJT and National Disability Insurance Agency [2016] AATA 478
Munday and National Disability Insurance Agency [2018] AATA 355
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634McGarrigle v National Disability Insurance Agency [2017] FCA 308
SECONDARY MATERIALS
Convention on the Rights of Persons with Disabilities
Inquiry Report, Disability Care and Support, Productivity Commission, released on 10 August 2011
National Disability Insurance Scheme Operational Guidelines – PlanningREASONS FOR DECISION
Dr I O'Connell, Senior Member
16 October 2018
BACKGROUND
The applicant, Mr Phillip Medcalf, is seeking a review of a decision made on 2 May 2017 by a delegate of the CEO of the National Disability Agency (NDIA). The decision of 2 May 2017 was an internal review decision to vary an original decision made by the NDIA on 7 November 2016.[1] The original decision approved the applicant as a participant in the National Disability Insurance Scheme (NDIS) and approved a statement of participant supports, which resulted in a participant plan of 12 months duration.[2]
[1] Exhibit T – T-documents, T2 at pp.6 – 7.
[2] Exhibit T – T-documents, T11.
The applicant sought the internal review on the basis that the supports were inadequate to meet his needs.[3] On review the delegate of the CEO ‘decided not to change the decision’ as he considered that the support offered was ‘sufficient to complement informal supports and mainstream health care support to provide reasonable and necessary level of care.’[4] The delegate did, however, agree to three additional pieces of equipment, namely a sleep support system, a Mueris chair and an air mattress.[5]
[3] Exhibit T – T-documents, T5.
[4] Exhibit T – T-documents, T2, p.6.
[5] Ibid.
The applicant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the decision of 2 May 2017 on the basis that ‘the internal review failed to properly assess all the support required by Mr Medcalf and the decision upon review does not provide him with adequate supports within his plan.’[6]
[6] Exhibit T – T-documents, T1 at p.4.
The plan to which this decision relates expired prior to the hearing and resolution of the application for review before the Tribunal. The Tribunal was advised that the parties had agreed to a further plan of 12 month duration which commenced 6 December 2017. The new plan replicates the funding in the applicant’s previous plan and has a review dated of 6 December 2018. The Tribunal notes that the respondent has agreed to reflect the Tribunal’s decision in a new statement of participant supports of 12 months duration.[7] In accordance with s 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) and s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the Tribunal is satisfied that it has jurisdiction to review the decision of 2 May 2017 as the decision was made by a reviewer under s 100(6)(b) of the NDIS Act.
[7] This agreement is reflected in the notes to the terms of the agreement lodged with the Tribunal by the parties pursuant to s 42C of the AAT Act.
A hearing was held on 23 February 2018 in Newcastle at the premises of the NSW Civil and Administrative Tribunal and a resumed hearing was held on 3 May 2018 at the Tribunal’s premises in Sydney. The applicant, represented by Legal Aid, attended the hearing on 23 February 2018 in person, and was accompanied by his parents, various support people and a disability advocate. Legal Aid appeared on behalf of the applicant at the resumed hearing on 3 May 2018. The applicant’s mother and a disability advocate appeared by phone at the resumed hearing. The respondent’s representative appeared in person before the Tribunal on both hearing dates.
At the hearing, the following witnesses provided oral evidence: the applicant’s disability support co-ordinator Ms Joanne Newman, the applicant’s occupational therapist Ms Mary Jacqueline Casey Winton and the applicant’s mother Mrs Dianne Medcalf. Ms Elaine Pacheco, an NDIS officer, provided oral evidence at the hearing on behalf of the respondent.
The documentary evidence before the Tribunal included, amongst other things, the following:
(a)Exhibit T – T-documents;
(b)Exhibit A1 – An updated quotation for the single use oral hygiene devices (undated), lodged on 22 February 2018;
(c)Exhibit A2 – A table in respect of the core support funding prepared by the applicant’s disability support co-ordinator, Ms Newman;
(d)Exhibit A3 – Applicant’s bundle of documents, which included:
(i)The applicant’s Statement of Position dated 15 December 2017;
(ii)The applicant’s Statement of Issues dated 3 August 2017;
(iii)Statement of Dianne Medcalf dated 7 September 2017;
(iv)Witness statement of Dianne Medcalf dated 12 December 2017;
(v)An Occupational Therapy Initial Assessment Report with attachments, dated 3 October 2017; and
(vi)Various quotations and other documents;
(e)Exhibit A4 – Draft Wheelchair and Equipment Assessment Report of Ms Winton dated 23 April 2018;
(f)Exhibit R1 – Respondent’s ‘potential model of support’ table dated 23 February 2018;
(g)Exhibit R2 – Updated spreadsheet prepared by Ms Pacheco, an NDIA officer;
(h)Exhibit R3 – Correspondence between NDIA and a service provider regarding dietitian and weighting services;
(i)Various documents provided by the applicant to the Tribunal on 11 October 2017 including a Service Agreements from Life without Barriers, Costings for Training and Team Meetings and quotations for various supports, including Respite facility, ramp, shower chair wheels, suction pump, oral hygiene tools and second skins;
(j)The respondent’s Statement of Facts, Issues and Contentions dated 19 January 2018;
(k)An estimate of weekly costings prepared by the applicant’s disability support co-ordinator Ms Newman;
(l)An Occupational Therapy Assessment dated 21 March 2018;
(m)The applicant’s Amended Statement of Position dated 22 March 2018 and covering letter;
(n)A copy of the applicant’s National Disability Insurance Scheme Plan, which commenced on 6 December 2017;
(o)The respondent’s Statement of Position dated 28 March 2018;
(p)The respondent’s Submissions dated 26 April 2018 and a schedule of supports;
(q)The applicant’s Submissions dated 28 April 2018;
(r)Various quotations provided by the applicant on 2 May 2018 in respect of certain supports including a wheelchair, single use oral hygiene devices and a suction pump;
(s)Correspondence from the applicant’s representative dated 4 May 2018 attaching a quote for the cost of repairs and an email chain between the applicant’s representative and the applicant’s Occupational Therapist, Ms Winton, dated 4 May 2018 regarding the bed and hoist;
(t)A Wheelchair/Equipment Assessment Report dated 4 May 2018;
(u)A General Assistive Technology Assessment dated 3 October 2017;
(v)Various quotations provided by the applicant on 7 May 2018 in respect of certain supports including the bed hoist, a wheelchair, single use oral hygiene devices, a suction pump and a replacement battery.
(w)The respondent’s submissions dated 13 May 2018; and
(x)Various documents referred to in the internal review decisions that were not included in the T-documents, which were provided by the respondent on 30 May 2018.
Following the hearing, the Tribunal was advised that the parties had reached an agreement in respect of part of these proceedings. The terms of the agreement are extracted, in part, below:
1. The parties have reached agreement that the decision of the Respondent dated 2 May 2017 (which varied an original decision made on 7 November 2016) be varied such that the following will be funded as reasonable and necessary supports over a period of 12 months, in accordance with section 34 of the National Disability Insurance Scheme Act 2013:
(a)Hoist at $3,546.00;
(b)Bed at $1,580.00;
(c)Leg splints at $3,090.00;
(d)Ramp and rails at $2,080.00;
(e)Fortnightly physiotherapy sessions;
(f)Staff training at $7,893.36 twice per annum) [sic];
(g)Coordinator of supports at 104 hours per annum;
(h)Transport – level 3.
The parties requested that the Tribunal’s decision give effect to the terms of the agreement under s 42C of the AAT Act. The Tribunal is satisfied that a decision in the terms proposed by the parties would be within the Tribunal’s power and accordingly, this decision gives effect to the terms of the agreement under s 42C(3) of the AAT Act. As the agreement disposes of only part of the proceedings, the Tribunal has proceeded to determine whether each of the proposed supports (or increased level of supports) that remain in dispute are ‘reasonable and necessary supports’ under s 34 of the NDIS Act and should be included in the statement of participant supports in the applicant’s plan.
RELEVANT LAW
The NDIS is established by the NDIS Act and is administered by the National Disability Insurance Agency (NDIA).
Each participant in the NDIS has a plan prepared with the assistance of, and approved by, the CEO of the NDIA in accordance with s 32 of the NDIS Act. A plan comprises a ‘participant’s statement of goals and aspirations’ and a ‘statement of participant supports’: ss 32(1) and 33 of the NDIS Act. The statement of participant supports includes the ‘reasonable and necessary supports’, if any, that will be funded under the NDIS: s 33(2) of the NDIS Act.
Subsection 34(1) of the NDIS Act provides that, for the purposes of specifying in a statement of participant supports the ‘reasonable and necessary supports’ that will be funded, the CEO of the NDIA (and on review the Tribunal) must be satisfied of all of the following in relation to each support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i)as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The Federal Court in McGarrigle v National Disability Insurance Agency [2017] FCA 308 at 19 has provided some guidance on the meaning to be attributed to “reasonable and necessary supports” in s34(1) of the Act.
"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”.[8]
[8] McGarrigle v National Disability Insurance Agency [2017] FCA 308 (28 March 2017)
Subsection 34(1) should be read together with the purposes and objects of the NDIS Act which gives guidance on the interpretation of the legislation. The objectives of the NDIS Act are wide ranging and include giving effect to various international conventions and treaties to which Australia is a signatory such as the Convention on the Rights of Persons with Disabilities: s 3 of the NDIS Act. In giving effect to the objects of the NDIS Act, regard must be given to the need to ensure the financial sustainability of the NDIS and the provision of services by other agencies, departments or organisations: ss 3(3)(b) and 3(3)(d) of the NDIS Act.
Section 4 of the NDIS Act sets out general principles guiding actions under the NDIS Act. The general principles indicate that people with disability should be supported to receive ‘reasonable and necessary supports’ (s 4(5) of the NDIS Act) and that those supports should:
(a)support people with disability to pursue their goals and maximise their independence; and
(b)support people with disability to live independently and be included in the community as full 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.[9]
[9] Subsection 4(11) of the NDIS Act.
Under s 209(1) of the NDIS Act, the Minister may make rules by legislative instrument to give effect to the NDIS Act. Relevant to these proceedings are the National Disability Insurance Scheme (Support for Participants) Rules 2013 (the Participants Rules), which form part of the legislation[10] and provide an overview of the principles and objects of the NDIS. It states as follows:
[10] Refer to s 209 of the NDIS Act.
1.1These Rules are about assessment and determination of the reasonable and necessary supports that will be funded and the general supports that will be provided for participants under the NDIS.
1.2The Act sets out a number of objects for the NDIS. The objects that are particularly relevant to these Rules are the following:
(a)supporting the independence and social and economic participation of people with disability;
(b)providing reasonable and necessary supports, including early intervention supports, for participants in the NDIS launch;
(c)enabling people with disability to exercise choice and control in pursuit of their goals and the planning and delivery of their supports.
1.3In giving effect to these objects, regard is to be had to the need to ensure the financial sustainability of the NDIS.
1.4The Act also sets out a number of principles for the NDIS. The principles that are particularly relevant to these Rules are the following:
(a)people with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development;
(b)people with disability should be supported to participate in and contribute to social and economic life to the extent of their ability;
(c)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;
(d)people with disability should be supported to receive reasonable and necessary supports, including early intervention supports;
(e)reasonable and necessary supports for people with disability should:
(i)support people with disability to pursue their goals and maximise their independence;
(ii)support people with disability to live independently and to be included in the community as fully participating citizens; and
(iii)develop and support the capacity of people with disability to undertake activities that enable them to participate in the mainstream community and in employment;
(f)the role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected;
(g)people with disability should be supported to receive supports outside the NDIS, and be assisted to coordinate these supports with the supports provided under the NDIS.
The CEO of the NDIA has made Operational Guidelines to assist decision makers in making decisions and performing other functions under the NDIS Act. The Operational Guidelines represent government policy and should be applied by the Tribunal unless there are cogent reasons to depart from the policy: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. Relevant to this decision is Operational Guideline – Planning.[11]
[11] A copy of the Operational Guideline – Planning is extracted in Exhibit T – T-documents at T15.
THE APPLICANT
The applicant is a young adult aged 25 years. He lives with his parents Tony and Dianne Medcalf in northern NSW. He has severe schizencephaly and epilepsy.[12] He also has severe visual impairment, profound intellectual disability, spastic quadriplegia, severe asthma, severe gastric reflux, osteoporosis, scoliosis, chronic deteriorating pulmonary condition, sleep apnoea and sun sensitivity.[13] The applicant requires a tracheostomy to breathe and is fed by a percutaneous endoscopic gastrostomy (PEG) tube.[14] His disabilities and diagnosed health conditions mean that he requires care around the clock.[15]
[12] Applicant’s submissions dated 28 April 2018 at [1]; Exhibit T – T-documents, T10 at pp.81 – 95.
[13] Ibid.
[14] Ibid.
[15] Respondent’s Statement of Facts, Issues and Contentions dated 19 January 2018 at [3.2].
The applicant initially came into the care of Tony and Dianne Medcalf through a foster care arrangement when he was seven months old.[16] He was not expected to live beyond age two.[17] The Medcalfs adopted the applicant when he was five years old and have cared for him since he was first placed with them as a foster child.[18]
[16] Exhibit A3 – Applicant's bundle of documents, p.24 at [8] (Statement of Dianne Medcalf dated 7 September 2017).
[17] Exhibit A3 – Applicant's bundle of documents, p.24 at [10] (Statement of Dianne Medcalf dated 7 September 2017).
[18] Transcript, pp.67-68.
In the applicant’s goal setting and initial support plan, the applicant identified his goals as spending quality time with his family, ensuring his equipment is up to date and safe, optimising his health, spending time with his carers and learn to trust them without mum and dad around and participating in social activities that are stimulating.[19] The applicant would like to remain at home with his parents.[20]
[19] Exhibit T – T-documents, T8 at p.28.
[20] Ibid.
The applicant requires ‘assistance with all aspects of his daily living,’[21] including dressing, showering, feeding and toileting as well as preparing and administrating medications.[22] The applicant also requires regular suctioning and monitoring of his well-being. He is assisted with his day to day care needs by his parents and by professional carers who come into the Medcalf’s home each morning and evening as well as some nights.[23] On weekdays he attends a day program at Life Without Barriers, which is a registered provider with the NDIA.[24]
[21] Exhibit T – T-documents, T8 at p.29.
[22] Exhibit A3 – Applicant's bundle of documents, p.53 (Occupational Therapy Initial Assessment Report dated 3 October 2017).
[23] Exhibit R2.
[24] Ibid.
At night the applicant requires regular monitoring and care. He requires turning and assistance with breathing and ensuring that his airways are clear. In addition, his equipment requires regular cleaning and maintenance. The Occupational Therapist Assessment Report of Ms Jacqueline Winton dated 3 October 2017 describes the applicant as fully dependent in all aspects of daily living and requiring 24 hours per day, 7 days per week care.[25]
[25] Exhibit A3 – Applicant's bundle of documents, pp. 47, 52 – 54 and 60 (Occupational Therapy Initial Assessment Report dated 3 October 2017).
In her evidence the applicant’s mother indicates that both her and her husband are in their late sixties and find it increasingly difficult to care for the applicant to the degree they have done so in the past.[26] They both struggle with their own health issues.[27] The applicant’s father receives a Disability Support Pension and the applicant’s mother receives a supporting wife’s pension and a Carer Allowance.[28] The applicant receives a Disability Support Pension.[29]
[26] See generally, Exhibit A3 – Applicant's bundle of documents, p.29 at [56] – [57] (Statement of Dianne Medcalf dated 7 September 2017).
[27] Ibid; Exhibit T – T-documents, T9 at p.79.
[28] Exhibit A3 – Applicant’s bundle of documents, p.23 at [7] (Statement of Dianne Medcalf dated 7 September 2017).
[29] Ibid.
Prior to becoming a participant of the NDIS on 7 November 2016, the applicant received funding through Aging, Disability and Home Care NSW (ADHAC) to assist with his care and support needs.[30] Ms Dianne Medcalf states that when they received the first NDIA participant’s plan for the applicant it was ‘$40,000 less than what they were receiving under ADHAC.’[31]
[30] Ibid p.25 at [18].
[31] Exhibit A3 – Applicant's bundle of documents, p.25 at [19] (Statement of Dianne Medcalf dated 7 September 2017).
The plan approved by the NDIA, in November 2016, provided funding of $750 for assistance technology to be used for maintenance and repairs of existing equipment, $8,000 for improved daily living in terms of professional support in daily routines, $9,696.08 for support co-ordination, $2,625 for transport and $235,500 for core supports including supervision of daily personal care need and participation in social activities.[32]
[32] Exhibit T – T-documents, T11 at pp.101 – 102.
The revised plan of 2 May 2017 allowed for $15,980.95 for assistive technology presumably to fund the three additional pieces of equipment agreed to and the other supports were revised down presumably because they were already partly spent.[33] The revised plan was renewed on 6 December 2017 for a 12 month period pending the outcome of the review.
[33] Exhibit T – T-documents, T12 at p.108.
In the Applicant’s Statement of Position dated 15 December 2017, the applicant listed the supports that they believe are ‘reasonable and necessary supports’ but had not been included in his plan. The applicant is seeking a decision by the Tribunal that these supports, along with a nebuliser, be included in the applicant’s plan. These supports are as follows:
Assistive Technology
1.Replacement Wheelchair
2.Oral hygiene devices: specialised to fit on a suction nozzle so the Applicant can brush his teeth without fluid entering his airways
3.Hoist…
4.Leg splints
5.Lounge pump
6.Generator
7.Blueys, hand gel, peri foam, disinfectant, syringes, booster pad, gloves, visalex
Home modifications
8.Ramp and rails
Improved Daily Living
9.Weekly physiotherapy sessions
10.Quarterly consultation sessions with a dietitian
Support Co-ordination
11.Staff training ($7,893.36 x 2 per annum)
12.Quarterly team meetings ($519.20 x 4)
13.Co-ordinator of supports – 104 hours per annum
Sustaining informal supports
14.14.Offsite respite care for applicant’s parents
Transport
15.Level – 3 transport
Core Supports16.Core Supports: $370,279 per annum[34]
17.Professional cleaning (twice per annum)[35]
[34] The Tribunal notes there is a discrepancy between the figure provided in the Applicant’s Statements of Position and Exhibit A2 which is the model relied on.
[35] Exhibit A3 – Applicant's bundle of documents, pp.1 – 2 at [2] (Applicant’s Statement of Position dated 15 December 2017).
The proceedings before the Tribunal have been protracted. During the course of the proceedings the parties reached agreement as to funding in respect of certain supports. The agreement, which is set out above at paragraph [8], provides for funding in relation to the installation of ramp and rails, transport at level 3, a new bed, a hoist, staff training, a co-ordinator of supports, leg splints and physiotherapy sessions. While not reflected in the terms of the agreement, the respondent’s Statement of Facts, Issues and Contentions indicate that the respondent also agreed in principal to ‘professional cleaning twice per annum.’[36]
[36] Respondent’s Statement of Facts, Issues and Contentions dated 19 January 2018, p.5 at [5].
The supports that remain in contention include certain assistive technology items, namely a wheelchair, portable suction pump, backup generator, heavy duty nebuliser, single use oral hygiene devices and consumables. Also in dispute are the quarterly consultation sessions with a dietician, quarterly team meetings (at 4 x $519.20), core supports at $370,279.00 and sustaining informal supports, namely offsite respite care and accommodation for the applicant’s parents.
The issue to be determined is whether each of the proposed supports (or increased level of supports) are ‘reasonable and necessary supports’ for the purpose of s 34(1) of the NDIS Act and should be included in the statement of participant supports in the applicant’s plan.
Assistive Technology supports in dispute – Suction pump, heavy duty nebuliser, backup generator
The applicant requires suctioning with a pump every 10 to 15 minutes to avoid fluid entering into his lungs.[37] He has a suction pump in his bedroom which is funded by the health system. The Medcalfs are advised that the health system will only fund one pump.[38] The suction pump in the applicant’s bedroom is a heavy item and the applicant’s evidence is to the effect that it is not reasonably practicable to move it outside of his bedroom[39] and that there is a risk of damaging the suction pump if it is moved from place to place.
[37] Exhibit A3 – Applicant's bundle of documents, p.39 at [1.3.1.6] (Applicant’s Statement of Issues dated 3 August 2017); p.33 at [90] (Statement of Dianne Medcalf dated 7 September 2017).
[38] Transcript, p.72 at lines 12 – 20.
[39] Transcript, p.23 at lines 13ff.
The applicant had a portable suction pump located in the lounge room which has ceased to function.[40] He also has a foot pump which he uses when travelling.[41] The foot pump is however very laborious to use as it is manually operated and requires the applicant’s parents to take turns pumping.[42]
[40] Exhibit A3 - Applicant's bundle of documents, p.33 at [89] (Statement of Dianne Medcalf dated 7 September 2017) and p.43 at [17] (Statement of Dianne Medcalf dated 12 December 2017).
[41] Transcript, pp.71 – 72; Applicant’s Submissions dated 28 April 2018 at [23].
[42] Applicant’s Submissions dated 28 April 2018 at [23].
The applicant says that a portable suction pump would enable him to be out of his bedroom, participate in family get-togethers and attend social and community activities away from home.[43]
[43] Applicant’s Submissions dated 28 April 2018 at [19] – [20].
The applicant has a heavy duty nebuliser which he uses at least five times a day, but would use it more when he is unwell. The nebuliser is on loan from the John Hunter Hospital. As it is a ‘heavy duty’ nebuliser it cannot be purchased over the counter at a pharmacy.
Ms Newman described the purpose of the nebuliser as assisting the applicant to keep well.[44] Ms Newman stated that the nebuliser ‘is part of [the applicant’s] everyday life like other people use puffers and so forth. It is to allow him to stay well and continue to access the things that he enjoys and have his independence.[45] Ms Newman said that the applicant’s current nebuliser has been on loan for approximately 15 years, but that the Medcalf family had advised her they have on two occasions been asked to return it.[46] However, no demand has been made to that effect.[47]
[44] Transcript, p.10 at lines 10 –11.
[45] Transcript, p.10 at lines 5 – 10.
[46] Transcript, pp. 20-21 at lines 40ff.
[47] Transcript, p.21 at lines 5 – 10.
The applicant says that a backup generator is required in the event of a black-out to ensure that the applicant’s equipment items which rely on electricity remain operational.[48] These items include his oxygen humidifier, suction pump, nebuliser, mattress and sleep system.[49]
[48] Exhibit A3 – Applicant's bundle of documents, p.13 at [42] – [43] (Applicant’s Statement of Position dated 15 December 2017); p. 40 at [1.3.1.11] (Applicant’s Statement of issues dated 3 August 2017).
[49] Ibid; Applicant’s Submissions dated 28 April 2018 at [27].
Ms Newman described the purpose of the backup generator as ensuring that the applicant’s hoist and bed remain operational and that his electric wheelchair continues to be charged.[50] She indicated that the applicant’s bed is powered by mains electricity and that the battery in the applicant’s hoist had failed.[51] While some of the applicant’s equipment may have batteries, Ms Newman stated that recharging these items would be problematic where there is a longer term blackout.[52] In the event of a long term blackout, she said that the applicant would be isolated in his room as he would be unable to recharge the battery backups in the items of equipment which support him to get out and about, such as his wheelchair.[53]
[50] Transcript, p.12 at lines 40 – 46.
[51] Transcript, p.58 at lines 25 – 30.
[52] Transcript, pp.28 and 12.
[53] Transcript, pp.12 – 13.
In addition, Ms Newman indicated that it would be necessary in a blackout for the lights to continue to function so as to allow carers to do all aspects of their work including attending to the applicant’s medical and day-to-day needs, including socialising with him.[54]
Suction pump, heavy duty nebuliser, backup generator – are they more appropriately funded by health or other services?
[54] Transcript, p.131 at lines 41 – 45.
The respondent rejects the applicant’s request for the portable suction pump, heavy duty nebuliser and backup generator on the basis that these three assistive technology supports are more appropriately funded by health or other services. That is they do not satisfy s 34(1)(f) of the Act.
The respondent argues that the purpose of each of these supports is to keep the applicant alive and well and as such the supports are about the health of the applicant. They therefore are more appropriately funded by health or other services. The respondent refers to the decision of Fear by his mother Vanda Fear and National Insurance Agency [2015] AATA 706 which considers the essential nature and purpose of oral suctioning equipment.[55] In that decision, the Tribunal found:
73When considered in light of the nature and purpose of the NDIS, the objects of the Act and the principles underlying the provision of reasonable and necessary supports, we find that the bedside and portable oral suctioning equipment are supports more closely related to the clinical treatment of Mr Fear’s health needs than to his independence and social or economic participation. Their principal purpose relates to managing his health and preventing illness rather than to supporting him to undertake activities that enable him to participate in the community. Put very bluntly again, they help to keep him alive. The fact that they enable him to remain living at home and to go out with his family and others does not change that, in our view, their principal purpose is to manage his health.
74On balance, we are not satisfied that the bedside and portable oral suctioning equipment is most appropriately funded by the NDIS. We find it is more appropriately funded by the general health system.[56] [Emphasis added]
[55] Respondent’s Statement of Facts, Issues and Contentions dated 19 January 2018 at [9.23].
[56] Fear by his mother Vanda Fear and National Insurance Agency [2015] AATA 706 at [73] – [74].
The respondent contends that a ‘synonymous fact scenario arises here’[57] and that ‘these findings apply with equal force to the [a]pplicant’s claim for a duplicate lounge pump’[58] and that the same reasoning holds in respect to the heavy duty nebuliser and the backup generator.
[57] Respondent’s Statement of Facts, Issues and Contentions dated 19 January 2018 at [9.23].
[58] Respondent’s Submissions dated 26 April 2018 at [2.22].
In the case of the nebuliser the respondent’s position is that the nebuliser’s purpose is to keep the applicant ‘well’ and accordingly, is a support that is properly funded under the health system.[59]
[59] Transcript, p.130.
In the case of the backup generator the respondent characterises it as part of the ‘applicant’s life sustaining equipment’ which is linked to the running of medical equipment and ‘[c]continuous electricity supply to the applicant’s house in the event of a long term blackout is life sustaining for the applicant assuming he cannot reasonably be evacuated from the house.’
The applicant rejects that these supports can be characterised as health items only and therefore not most appropriately funded through NDIS. The applicant contends that the three items are supports that enable the applicant to undertake activities of daily living. They are required for him to live with his parents and participate in the community and are linked to his functional impairment. As such they are supports within the remit of the NDIS.
The applicant submits that the NDIS is ‘most appropriate’ to fund the suction pump because the primary purpose of the portable suction pump is to allow the applicant ‘to work towards his goals of independence and socialisation.’[60] The support is directly related to the applicant’s ongoing functional impairment and enables him to undertake activities of daily living.[61]
[60] Applicant’s Submissions dated 28 April 2018 at [20].
[61] Transcript, p.131 at lines 9 – 35.
In respect of the nebuliser, Ms Winton states that the clinical justification for the nebuliser is:
the ongoing safe management for infection control and management of infection. The use and maintenance of [the nebuliser] is essential for Mr Medcalf’s respiratory function and without it the consequences could be fatal.[62]
[62] Wheelchair/equipment Assessment Report dated 4 May 2018, p.8.
The applicant submits that a heavy duty nebuliser is ‘essential to enable Philip to be in a position to communicate with and socialize with his carers.’[63]
[63] Applicant’s Submissions dated 28 April 2018, p.7 at [30].
In terms of the backup generator the applicant contends that without a backup generator, he would not have the benefit of the care of his carers and that his relationship with his carers is crucial for his independence from his parents as an adult attempting to forge his own identity separate from his parents.[64] The applicant submits that the purpose of backup generator is to allow ‘the applicant recreation, socialisation and community engagement.’[65] Further the backup generator has ‘the primary purpose of ensuring that all services can continue for Phillip in the event of a power outage, not just health-related, but all services.’[66]
[64] Ibid.
[65] Applicant’s Submissions dated 28 April 2018 at [28].
[66] Transcript, p.131 at lines 41 – 45; Applicant’s Submissions dated 28 April 2018 at [25].
The Participants Rules at Rule 7.4 and Rule 7.5 attempt to provide some guidance on want most appropriately falls within the ambit of NDIS and what might fall within the remit of health or other services. Rule 7.4 suggests that supports that can be characterised as relating to a person’s ongoing functional impairment and enable a person to undertake activities of daily living and are integrally linked to the care and support a person requires to live in the community are supports within the remit of the NDIS. On the other hand Rule 7.5 suggests that supports that relate to the diagnosis and clinical treatment of health conditions (chronic or otherwise) and that have as their purpose improving health care are to be viewed as the remit of health service.
The distinction between a health condition and a disability or functional impairment is by no means clear cut. As set out above at paragraph [18] the applicant has a complex range of physical and intellectual impairments and medical conditions. Some of his diagnoses readily lend themselves to the description of a medical condition such as severe asthma and chronic deteriorating pulmonary condition. Others such as his profound intellectual disability and spastic quadriplegia may be described as functional impairments. No evidence has been presented to the Tribunal as to which of the applicant’s conditions are viewed by the NDIA as functional impairments and which are to be viewed as medical conditions. More importantly no doubt some of the applicant’s complex circumstances are interrelated with his impairments giving rise to consequent medical conditions. The applicant’s schizencephaly was described by the respondent as a very rare brain disease and the applicant’s mother indicated that the applicant has other conditions that are a result of his schizencephaly.
Furthermore a support may have multiple purposes and therefore not easily characterised into a singular purpose. Hence the references in Fear to ‘primary purpose’ suggesting that a support such as a suction pump may serve more than one purpose. The NDIA is to fund supports to people with disabilities to enable them to have a greater independence, to participate and contribute in the community and to have a social life. To be independent and to participate in social life necessitates a basic level of well-being and health and thus there is an overlap of purposes of good health and social participation.
Portable Suction Pump
Clearly a suction pump serves the purpose of sustaining the applicant’s life and the applicant has a suction pump provided to him by the health services for this purpose. In the view of the Tribunal, the applicant is not seeking a second suction pump for the purpose of his health and well-being. This is catered for by the suction pump in his bedroom. Rather he seeks the secondary pump for the purpose of enabling him to move beyond his bedroom and to participate in social and family life and to maximise his independence. These purposes are directly applicable to his stated goals as set out in his participant plan and accord with the principles of the NDIS. That is to support people with disability to live independently, to be included in the community as fully participating citizens and to undertake activities that enable them to participate in the mainstream community.[67]
[67] Refer to rule 1.4 of the Participant Rules.
There was some discussion at the Tribunal hearing about the feasibility of moving the primary suction pump from the bedroom to the lounge room by placing it on a trolley. Ms Newman indicated that such a proposal was not practical as the primary suction pump is mounted on a cabinet in the applicant’s bedroom and the Medcalf’s home has insufficient room in which to wheel around a trolley mounted pump. The evidence of the applicant’s mother was also to the effect that such an approach would be unworkable.[68] The Tribunal accepts that the evidence of Ms Newman and the applicant’s mother that is not a practical alternative.
[68] Transcript, pp. 23 – 25, 55 – 56, 57 – 58, 73 and 86.
In the circumstances, the Tribunal finds that the portable suction pump is properly to be characterised as a support that enables the applicant to undertake activities or daily living, or to live in the community as contemplated by Rule 7.4 of the Participants Rules. As such the Tribunal is satisfied that the portable suction pump is a support that is not more appropriately funded or provided through other general systems of service delivery or support services: s 34(1)(f) of the NDIS Act.
The Tribunal is satisfied that the other criteria set out in s 34(1) are met and accordingly, that the portable suction pump is a ‘reasonable and necessary support’. That is that the portable suction pump assists the applicant to pursue the goals, objectives and aspirations included in his statement of goals and aspirations (s 34(1)(a) of the NDIS Act) and will assist the applicant to undertake activities, so as to facilitate his social and economic participation (s 34(1)(b) of the NDIS Act).
The Tribunal is also satisfied that the suction pump will be, or is likely to be effective and beneficial for the applicant, having regard to current good practice: s 34(1)(d) of the NDIS Act. And having regard to the evidence before the Tribunal and Rule 3.1 of the Participant Rules, the Tribunal is satisfied that the support represents value for money: s 34(1)(c) of the NDIS Act. Having regard to the quote provided, the Tribunal is satisfied that the cost of the portable suction pump is reasonable relative to the benefits to the applicant which are set out above and on the evidence appear to be substantial. Further it is not reasonable to expect the applicant’s family, carers, informal networks and community to provide funding for a portable suction pump: s 34(1)(e) of the NDIS Act.
Heavy duty nebuliser
The Tribunal takes a different view with the heavy duty nebuliser. As described by Ms Winton it is for the purpose of maintaining a basic level of health and preventing illness, namely infection. As set out above a person requires a basic level of health to participate in the community, however the nebuliser does not in any other way further the applicant’s social participation over and above ensuring his basic health. In this the nebuliser is distinct from other supports such as a wheelchair or portable suction pump which provide the applicant with a degree of independence, facilitates his inclusion in the community and enables him to participate in the mainstream community.
The Tribunal notes that the applicant’s current heavy duty nebuliser is provided by NSW Health, which arguably fortifies the view that the support is the responsibility of, and more appropriately funded through, the health system. In respect of NSW Health request that the applicant return the nebuliser that he has been loaned, the Tribunal notes the statement of the Productivity Commission in its 2011 report that:
it will be important for the NDIS not to respond to problems or shortfalls in mainstream services by providing its own substitute services. To do so would weaken the incentives of government to properly fund mainstream services for people with a disability, shifting the cost to another part of government... This ‘pass the parcel' approach would undermine the sustainability of the NDIS and the capacity of people with a disability to access mainstream services.[69]
[69] Inquiry Report, Disability Care and Support, Productivity Commission, released on 10 August 2011, p.238.
For the reasons outlined above, the Tribunal is not satisfied that the heavy duty nebuliser is most appropriately funded through the NDIS and not more appropriately provided through the health system: s 34(1)(f) of the NDIS Act.
Backup Generator
The Tribunal does not accept the respondent’s characterisation of the backup generator as a health item because it supports medical equipment. As described by the applicant it supports a range of equipment some of which is provided by the NDIS and presumably can be characterised as supports related to his functional impairment such as the bed and hoist and other which is provided by the health sector such as the bedroom suction pump.
Nor does the Tribunal accept the applicant’s position that a backup generator is crucial to his relationship with his carers and his independence from his parents. The backup generator is only required in the event of a power failure. Apart from this circumstance the applicant does have the benefit of his carers and his socialisation and community engagement.
Mrs Medcalf has indicated that they are located in a rural area.[70] She indicated that they have had a blackout that lasted 18 hours.[71] The Tribunal notes that that the Medcalfs are on a priority list with the electricity supplier in the event of a blackout. Further the respondent contends that where a person has registered their premises as having ‘life support equipment’, the electricity supplier will do everything it can to provide a safe and reliable electricity supply.[72] This may include an in situ backup generator, or delivery of a backup generator in the event of a long term planned or unplanned blackout.[73]
[70] Transcript, p.54 at lines 5 –12.
[71] Transcript, p.74 at lines 1 –10.
[72] Respondent’s Submissions dated 26 April 2018 at [2.27].
[73] Respondent’s Submissions dated 26 April 2018 at [2.28].
One of the applicant’s stated goals is to remain at home with his family. Clearly a backup generator facilitates this in the case of a power failure. However the Tribunal is not satisfied that there are not already sufficient supports in place to deal with the circumstance of a power failure. As set out above, the family home is registered on a priority list for attention in the event of a power failure. In the event of a power failure there are short term measures that may be inconvenient such as working via torchlight or relying on battery operated equipment or requiring the applicant to stay in bed longer.
However such measures do not in the view of the Tribunal create a necessity for a backup generator. Further given that a backup generator would serve more purposes than as a support to the applicant it is not unreasonable to expect the family, informal networks or the community to fund a backup generator: see s 34(1)(e) of the NDIS Act. In considering the component parts of section 34(1) collectively the Tribunal is not satisfied that the backup generator is a reasonable and necessary support.
Assistive technology supports: oral hygiene devices, consumables and wheelchair
Oral hygiene devices
The oral hygiene devices were not disputed by the respondent in the same manner as the portable suction pump or the nebuliser rather the respondent made an in principle agreement to the applicant’s request for oral hygiene devices. In the respondent’s Statement of Facts, Issues and Contentions the respondent stated that the oral devices are agreed to “subject to the applicant’s original quotations for these items’.[74] The original quotation for the items is dated 17/06/2016 with a 30 day validity from that date.[75] The applicant’s statement of position references a cost of $203.50 for 50 packets.
[74] Respondent’s Statement of Facts, Issues and Contentions at [13.14]
[75] Respondent’s Statement of Facts, Issues and Contentions at [9.10] and [5]; Transcript, p.117 at line 5.
The applicant provided two new quotes during the course of the Tribunal proceedings. One dated 21/02/2018 quoting $5,926.14 for a quantity of 730 and a unit price of 7.3800. The applicant acknowledged that this quote was in error and provided a second quote dated 22/02/2018 quoting $3,131.70 for a quantity of 730 with a unit price of 3.900 for 700 each and 30 at a unit price of 4.03.
In his closing submissions at the hearing on 3 May 2018 the respondent again stated an in principle agreement to oral hygiene devices and stated that “I concede that the quote is enough”.[76] However, the respondent subsequently submitted a post hearing submission that the NDIA should not fund the oral hygiene devices as there ‘is no, or insufficient evidence establish that it is value for money.’[77] The respondent contends that there is:
only vague information on this support which does not establish that any alternatives have been provided or considered, the purpose apart from it being needed for risk of infection or respiratory risk (which there is nil or little evidence of) and notes there is no information of the process of brushing teeth and why a regular toothbrush and using the suction machine would not be sufficient.[78]
[76] Transcript, p.117 at line 5.
[77] Respondent’s Submissions dated 13 May 2018.
[78] Respondent’s Submissions dated 13 May 2018.
The respondent’s consistent in principle agreement for the provision of the oral hygiene devices during the course of the hearings meant that there was no need for or discussion of oral hygiene devices and it was unfortunate that the respondent only raised concerns by way of a post hearing submission.
In any event The Tribunal is not satisfied that a regular toothbrush is a comparable support that would achieve the same outcome. The evidence of the applicant’s mother is that to use any other form of oral hygiene device, such as a regular toothbrush, would be against medical advice.[79] Her evidence was consistent with Ms Newman who highlighted the ‘necessity for [the applicant] to use them.’[80] On this basis, and having regard to rule 3.1 of the Participants Rule, the Tribunal is satisfied that the single use oral hygiene devices represent value for money.
[79] Applicant’s Submissions dated 28 April 2018 at [14] & [15].
[80] Ibid.
In light of the respondents in principle agreement to the oral hygiene devices and acceptance of the quote the Tribunal is satisfied that NDIA had agreed that oral hygiene devices should be included in the statement of participant supports in the applicant’s plan as ‘reasonable and necessary supports’ for the purpose of s 34(1) of the NDIS Act.
Consumables
In her evidence Mrs Medcalf indicated that she currently purchases a large amount of consumables such as blueys, hand gel, disinfectant, syringes, booster packs, gloves and visalax. These products are required in caring for the applicant and are currently paid for personally by the Medcalfs.[81] In summary, she says that the blueys, booster pads, gloves and visalax are required due to the applicant’s incontinence;[82] the hand gel is required to reduce the risk of infection due to the applicant’s low immunity;[83] and the disinfectant is required for cleaning the applicant’s equipment.[84] Accordingly, the applicant says that these items are related to his functional limitations attributable to his disability.
[81] Exhibit A3 – Applicant's bundle of documents, p.13 at [44] (Applicant’s Statement of Position dated 15 December 2017).
[82] Transcript, pp.75 – 76 and 77.
[83] Transcript p.75 at lines 45ff.
[84] Transcript, p.76 at lines 29 – 35.
With specific reference to rules 5.1 and 5.2 of the Participants Rules, the NDIA argue that these items are day to day living costs and not solely and directly related to the applicant’s disability. Rule 5.1(d) of the Participants Rules states that the NDIS will not fund a support if it relates to day to day living costs that are not attributable to a participant’s disability support needs. Rule 5.1(d) is qualified by rule 5.2 which states that:
The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a)additional living costs that are incurred by a participant solely and directly as a result of the disability support needs;
(b)costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur. [Emphasis added]
The applicant argued that the consumables are not for general use rather they are required to ensure that all of the applicant’s equipment is kept clean and they are used by the carers in assisting the applicant. Ms Newman told the Tribunal that the consumables were directly and solely attributable to the applicant’s disability, being schizencephaly.[85]
[85] Transcript, p.13.
However the Tribunal accepts the argument of the NDIA that the consumables are not solely and directly related to the applicant’s disability. The consumables are required not only for the applicant’s functional impairments but for a variety of reasons which includes his disabilities but also his medical conditions and general hygiene.
Replacement wheelchair
The applicant uses a TDX wheelchair on a daily basis.[86] The applicant says that his wheelchair is over 10 years old and ‘needs replacement.’[87]
[86] Exhibit A3 – Applicant's bundle of documents, p.9 at [27] (Applicant’s Statement of Position dated 15 December 2017).
[87] Ibid.
The Occupation Therapy Assessment Report of Ms Jacqueline Winton dated 3 October 2017 notes that the applicant’s wheelchair ‘was not working on the day of assessment’ and that a delay in the repair or replacement where no backup manual wheelchair is available placed the applicant ‘at risk of being isolated at home’ and may lead to the applicant being unable to attend doctor appointments, specialist review, day programme and social events.[88] The report indicated that the applicant ‘may benefit from a reassessment of his electric wheelchair…needs now as an adult’.[89]
[88] Exhibit A3 – Applicant's bundle of documents, p.51 (Occupational Therapist Assessment Report dated 3 October 2017).
[89] Exhibit A3 – Applicant's bundle of documents, p.56 (Occupational Therapist Assessment Report dated 3 October 2017).
The respondent submits that the applicant’s claim for a wheelchair ‘should be the subject of an equipment assessment by an [occupational therapist]’[90] and that the initial Occupation Therapy Assessment Report of Ms Jacqueline Winton dated 3 October 2017 was insufficient.[91] A Wheelchair/equipment Assessment Report dated 4 May 2018 was subsequently provided in support of the applicant’s claim. The report makes the following observations in respect of the applicant’s current TDX wheelchair:
[90] Respondent’s Statement of Facts, Issues and Contentions dated 19 January 2018 at [9.1].
[91] Respondent’s Statement of Facts, Issues and Contentions dated 19 January 2018 at [9.2].
* Current foot plates too long, wears ankle splints when in wheelchair and majority of time.
* Current lateral supports are incompatible fit with this wheelchair. This wheelchair is an amalgam of other parts for old equipment. As parts deteriorated over the years the parents have added, adjusted or improvised with other equipment or ingenuity to provide ongoing use of this powered wheelchair.
* Current lateral supports cut into Phillips [sic] upper arms and have been lined with additional sheepskin to protect his skin.
* Current seat depth is too long and has been lined with additional sheepskin to protect his legs/ skin.
…
* Current back and head rests are amalgam pieces from old equipment but support Phillip is static posture and allowing for scoliosis.
* Current seat does not allow for eye level interactions.
* Current Wheelchair is operated by Carer from rear with the need to brake quickly as needed if suddenly choking, respiratory issues occur. Height and position of handle/ control is not adjustable and lends itself to increasing flexed upper back of the Carers (there are varied Carers).
…
…Current Cushion is dilapidated appearance with constant use and washing of the cover.
…
The motor replacements have become increasingly difficult over the years and as such have increasing time delays in repairs which lend itself to Philip being unable to access the community programs and social activities.[92]
[92] Wheelchair/equipment Assessment Report dated 4 May 2018, p.3.
The report concluded that the applicant would ‘benefit from a new specific powered wheelchair which addresses his current and ongoing postural needs, respiratory needs, physical dimension and access needs for home and the community.’[93] The report also stated that the applicant ‘would not be able to achieve his My plan goals without the safe and appropriate mobility of a powered wheelchair.’[94] The report recommended a Power Wheelchair Permobil M3 Corpus on the basis that it ‘follows the current configurations of the current amalgamated wheelchair and long term postural needs of [the applicant]’.[95] A quote for a Power Wheelchair Permobil M3 Corpus with certain specifications was provided.
[93] Wheelchair/equipment Assessment Report dated 4 May 2018, p.3.
[94] Wheelchair/equipment Assessment Report dated 4 May 2018, p.8.
[95] Wheelchair/equipment Assessment Report dated 4 May 2018, p.4.
On the evidence before the Tribunal and taking into account the expert opinion of the applicant’s occupational therapist,[96] the Tribunal is satisfied that ss 34(1)(a),(b),(e), (f) and (d) are met.
[96] Rule 3.3 of the Participants Rules.
The Tribunal is satisfied that the power wheelchair will assist the applicant to pursue his goals, objectives and aspirations: s 34(1)(a) of the NDIS Act. The applicant’s goals as specified in his participant plan include participating in social activities and accessing support so as to optimize and maintain his health, wellbeing and enjoy quality time together with family. The Wheelchair/equipment Assessment Report states that without the powered wheelchair the applicant would be unable to achieve his goals.[97] The Tribunal finds that the goals would be furthered by the purchase of a new powered wheelchair.
[97] Wheelchair/equipment Assessment Report dated 4 May 2018, p.5
Similarly, the Tribunal is satisfied that the power wheelchair will assist the applicant to undertake activities, so as to facilitate the participant's social and economic participation: s 34(1)(b) of the NDIS Act. The Wheelchair/equipment Assessment Report states that the powered wheelchair addresses his access needs for home and community. Accordingly, the purchase of the powered wheelchair would facilitate the applicant’s social participation by ensuring ensure safe mobility and access at home, community and recreational activities.
The Tribunal does not consider that s 34(1)(e) of the NDIS Act is applicable in the circumstances given that it focuses on what is reasonable to expect the applicant’s family, carers, informal networks and community to provide.[98] Nor does the Tribunal consider that this support 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 as part of a universal service obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability: s 34(1)(f) of the NDIS Act. There are no other general systems of service, such as the health systems, which could more appropriately purchase the wheelchair.
[98] Refer Munday and National Disability Insurance Agency [2018] AATA 355 at [79].
The Tribunal is also satisfied, having had regard to the expert opinion of the applicant’s occupational therapist, that the powered wheelchair will be, or is likely to be, effective and beneficial to the applicant having regard to current good practice: 34(1)(d) of the NDIS Act.
However, the Tribunal must also be satisfied that the support represents value for money in that the costs of the support are reasonable as compared to the benefits achieved and the costs of alternative support: s 34(1)(c) of the NDIS Act. In considering whether the power wheelchair is a support that represents value for money, the Tribunal has had regard to rule 3.1 of the Participants Rules.
The report states that ‘no alternative options have been considered as Mr Medcalf has very specialized, individual and specific posture to ensure safe respiratory function, safe skin integrity, safe postural positioning for mobility, meals and personal care.’[99] Accordingly, the Tribunal accepts that there are no comparable alternative support and that s 34(1)(c) is satisfied.
Are quarterly consultation sessions with a dietician a support to be funded by NDIS or health services?
[99] Wheelchair/equipment Assessment Report dated 4 May 2018, p.7.
The applicant is seeking funding from the NDIS for quarterly consultation sessions with a dietician that has weigh-in facilities. Mrs Medcalf indicated in her evidence that prior to his participation in the NDIA the applicant saw a dietician at the John Hunter Hospital where he was also weighed.[100] However, with the advent of the NDIS he was no longer eligible to access the hospital services.[101]
[100] Transcript, p.125 at lines 20 – 30.
[101] Ibid.
As the applicant is PEG fed he requires a very specific and controlled diet and his weight requires monitoring. The applicant claims that he requires a dietician who has access to equipment to weigh as part of him monitoring his diet and he has to be weighed in his wheelchair. It appears that this currently happens is at the hospital in Port Macquarie.[102]
[102] Transcript, p.125 at lines 30 – 40.
The respondent argues that the applicant can receive funding for his consultations with a dietician through the Medicare Benefits Schedule (MBS) funded scheme that it is provided through the health sector.[103] As such the respondent contends that ‘dietician consultations are the responsibility of the health system…regardless of how many Medicare funded dietician consultations are actually provided to the [a]pplicant, or the venue of the consultation.’[104] The MBS funded five consultations involve seeing a dietician where the person is not required to be weighed.[105]
[103] Respondent’s Statement of Facts, Issues and Contentions dated 19 January 2018 at [11.21].
[104] Ibid.
[105] Ibid.
The Tribunal accepts the respondent’s evidence that the applicant can receive funding for his consultations with a dietician through the MBS funded scheme and having regard to the evidence before the Tribunal is unconvinced that the weighing of the applicant is the only method of monitoring his diet for his PEG feeding.
Accordingly, the Tribunal is not satisfied that the dietitian supports is most appropriately funded through the NDIS and not more appropriately provided through other general systems: s 34(1)(f) of the NDIA Act.
Should core supports be funded to the amount as proposed by NDIA or as requested by the applicant?
The NDIA have presented a model to the Tribunal with a proposed core supports package totalling $313,600.64 per annum. This amount is derived on the basis of professional carers doing three night shifts a week and 1.25 hours of formal supports in the morning and three hours of formal supports in the evening. Also factored into this is the proposal that the applicant has 12 weekends per year of respite care away from the home. The model also includes funding for two hours of professional cleaning per fortnight and 4 hours for community access on Saturday and Sunday.
The applicant has presented an alternative model, which provides funding for core supports to the amount of $374,611.12 per annum.[106] The additional funds are sought on the basis, among other things, that the applicant requires five hours of professional care in the evening and that the applicant would not have offsite respite care 12 weekends a year and thus the carers would be required for these times.
[106] Exhibit A2. The Tribunal notes there is a discrepancy between the figure provided in the Applicant’s Statements of Position and Exhibit A2 which is the model being relied on.
The applicant argues that it is not possible for the applicant to have respite care outside of the home. The Medcalfs have explored the possibility of outside care and say that there is no suitable respite care facility available to the applicant. Even if a suitable facility was available, the applicant says it would be difficult to transport all his equipment to the facility for his overnight respite care.
The respondent has articulated the view that offsite respite care would be beneficial to the applicant and should be viewed as a type of transitioning of care for the applicant in the event that his parents are unable to care for him in the future.
The model provided to the Tribunal by the respondent was prepared by Ms Elaine Pacheco who acknowledged in her oral evidence that she had no contact with the applicant or his parents or his carers in preparing the model.[107] She stressed however that in determining an amount for core supports to be funded for the applicant it is not suggested that the money should be spent by the participant according to the model. Rather the NDIA views funding of core supports as flexible and that families and nominees have choice and control in terms of how they would like to implement supports.[108] Ms Pacheco stated that:
it is still up to Phillip and his family to anticipate and negotiate with their service providers about when they would like and how they would like that $313,000 to be spent.[109]
[107] Transcript, p.109 at lines 35 – 40.
[108] Transcript, p.109 at lines 1 – 5.
[109] Transcript, p.109 at lines 6 – 9.
The model proposed by the applicant was prepared by Ms Newman. As the applicant’s case manager, Ms Newman has first-hand knowledge of the applicant and his care needs and has worked closely with him and his family for 15 years.[110] Ms Newman stressed that although the applicant could manage with the allocation of professional care in the mornings it is not feasible to meet his care needs in the evenings with only three hours as opposed to the five hours of professional care as set out in her model. Ms Newman also indicated that to move the applicant offsite for respite care would be ‘quite a task’ given his ‘many pieces of equipment.’
[110] Transcript, p.8 at line 19.
Given Ms Newman’s professional experience and intimate knowledge of the requirements of caring for the applicant, the Tribunal places weight on her evidence that he requires five hours of carer assistance in the evening and that three hours does not allow sufficient time for the applicant’s feeding, showering, stretches, preparation for bed and medication.
The Tribunal also accepts the evidence of Mrs Medcalf that there is not a suitable offsite respite care place for the applicant and that moving him with all his equipment would be very disruptive and difficult to achieve. The Tribunal notes the view of the respondent that off-site care should be viewed as assisting the applicant to transition to a possible different care arrangement.
One of the stated objects of the NDIS is to enable people with disability to exercise choice and control in pursuit of their planning and delivery of their supports. The NDIA acknowledges this it would seem in providing a set funding amount for core supports and then as stated by Ms Elaine Pacheco allowing recipients to ‘negotiate with their service providers about…how they would like to spend the money.’[111]
[111] Transcript, p.109 at lines 7 – 8.
Given the stated object of allowing choice for the participant the Tribunal does not see it as its place to enforce offsite respite care on the applicant on the basis that it will assist with any possible later transition required of him. The applicant has indicated his desire to stay with his family; this along with the difficulty of finding suitable accommodation leads the Tribunal to reject the NDIA proposal of offsite respite care as an inbuilt assumption of core supports.
This along with the need for the applicant to have five hours and not three hours of professional care in the evenings leads the Tribunal to find in favour of the applicant’s requested funding amount for core supports. This however does not include funding for offsite respite care for the parents as is discussed below.
The Tribunal notes that there is some dispute as to whether two hours of fortnightly professional cleaning is built into the core support funding. The respondent argues that it is while the applicant argues that the funding is inadequate to cover the fortnightly professional cleaning. As the Tribunal is agreeing to the core supports amount requested by the applicant the Tribunal would anticipate that the cost of fortnightly professional cleaning would be absorbed within this funding amount.
Sustaining informal supports: Off-site respite care of four nights a week accommodation for the applicant’s parents
The applicant is seeking funding for the cost of offsite accommodation for his parents for four nights a week. The applicant’s parents are in their late sixties and both have health issues. As they age they are finding it increasingly difficult to sustain their level of care for the applicant. As set out above, the applicant has very high care needs. His parents currently do ‘night shifts’ three to four nights a week and have professional carers overnight for the remaining nights. They have provided photographs of their home which show that their home is very small. Mrs Medcalf’s evidence is that when the carers are present in the home overnight and working with the applicant the activity, lights and sounds make it difficult for them to properly rest.
The applicant says that if funding for hotel accommodation at a rate $90 a night is provided his parents would have the respite they require. It would seem that the applicant’s parents already do this though it is unclear to the Tribunal how this is funded. According to Mrs Medcalf when they are away from the home they take several calls at night and may return up to two times to assist with the applicant.
The respondent takes the view that by providing funding for professional care in the home three nights a week and making provision for 12 weekends of offsite respite care for the applicant, the NDIA is providing support to the parents. As set out above, the Medcalfs have rejected the latter proposal on the basis that offsite respite care for the applicant is not currently viable. They argue that it is economically more viable for the NDIS to fund them to stay in a hotel than it is to send the applicant to offsite respite care.
The respondent also argues that providing offsite respite accommodation for the parents goes beyond a reasonable and necessary support and does not satisfy the criteria set out in s 34(1) of the NDIS Act. It is not a support that assists the participant, that is the applicant, to pursue his goals and objects (s 34(1)(a) of the NDIS Act) nor is it a support that assists his social and economic participation in the community (s 34(1)(b) of the NDIS Act). The Tribunal agrees that this is the case and finds that provision of offsite accommodation for the parents is not a reasonable and necessary support as set out in s 34(1) of the NDIS Act.
The increase in core funding will allow for more professional care for the applicant and alleviate some of the burden for the parents and informal networks or other family may assist the parents to find offsite accommodation for them for those nights when the applicant is in the care of professional carers.
Are quarterly team meetings reasonable and necessary supports as part of support co-ordination?
In respect to the category of support co-ordination NDIS has incorporated into the applicant’s participant plan funding for staff training and funding for a co-ordinator of supports for 104 hours per year. They have not agreed to provide funding for quarterly team meetings, which is budgeted at $519.20 per meeting, as requested by the applicant.
The applicant contends that this additional funding is required because there are separate services working with the applicant and it is important that they have a consistent approach in caring for the applicant and have regular meetings to achieve this.[112] The applicant contends that the support budget is limited and caring for the applicant is intense and very time consuming leaving little or no time for effective communication between carers.
[112] Exhibit A3 – Applicant's bundle of documents, p.2 at [1.2.1.3] (Applicant’s Statement of Issues dated 3 August 2017).
The respondent argues that the funding provided for the support co-ordinator and staff training could or should cover this need and as such rejects the need for extra funding specifically for quarterly staff meetings. The respondent also argues that providers have ‘on-costs built into their budgets to cover meeting costs’ and that NDIS ‘would be paying twice for the same item to the three registered providers of supports within the meaning of sections 33(6) and 70(1) of the NDIS Acts.’[113] The respondent also contends that the support is not value for money as the Tribunal cannot be satisfied of the associated benefits that the applicant will, or is likely to, obtain.
[113] Respondent's Statement of Facts, Issues and Contentions dated 19 January 2018, p16 at [12.8].
The Tribunal is not in a position to make a clear finding as to whether the providers are sufficiently funded to cover the costs of team meetings and exercises the benefit of the doubt in favour of the NDIA.
DECISION
For the reasons outlined above, the Tribunal varies in part the decision of the respondent made on 2 May 2017 as follows:
(a)The portable lounge suction pump is a reasonable and necessary support which is to be fully funded under the National Disability Insurance Scheme;
(b)The oral hygiene devices are a reasonable and necessary support which is to be fully funded under the National Disability Insurance Scheme; and
(c)The power wheelchair is a reasonable and necessary support which is to be fully funded under the National Disability Insurance Scheme; and
(d)The core supports are a reasonable and necessary support which is to be funded under the National Disability Insurance Scheme in accordance with this decision.
I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Dr I O'Connell, Senior Member
........................[sgd]................................................
Associate
Dated: 16 October 2018
Dates of hearing: 23 February 2018 and 3 May 2018 Solicitor for the Applicant: Ms K Wrigley, Legal Aid NSW Solicitor for the Respondent: Dr S Thompson, Sparke Helmore
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