MKKX and National Disability Insurance Agency
[2024] AATA 805
•19 April 2024
MKKX and National Disability Insurance Agency [2024] AATA 805 (19 April 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2023/0247
Re:MKKX
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member J Collins
Date:19 April 2024
Place:Brisbane
DECISION
Pursuant to section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with a direction that:
·Within 28 days of this decision MKKX’s statement of participant supports specifies the following supports as reasonable and necessary:
(a)Wrist, ankle, knee, sacrum and shoulder splints/braces;
(b)2xu compression tights;
(c)Front closure arm compression ¾ sleeve top;
(d)Hypermobility crutches;
(e)Electric heating therapy pad;
(f)Grip Pain Relief Therapeutic Heat Glove;
(g)Bodicheck Premium Shoulder and Neck Hot/Cold Pack Reusable Nylon with Towel Bag;
(h)Opal Hot/Cold Pearl Gel Pack – Large;
(i)Swivel cushion for car;
(j)Seat belt easy-reacher;.
(k)Bottom-wiper;
(l)Long-handled toe washer;
(m)Long-handled bath sponge;
(n)Hoka orthopaedic shoes, Hydrotherapy shoes and orthotics in a total amount of $855;
(o)Home oxygen concentrator in a one-off amount of $1,900.00 plus $29.15 for accessories;
(p)A fixed air-conditioner installed in MKKX’s living room; and
(q)Two pairs of flat knit compression stockings;
·The date by which the Agency must reassess the MKKX’s plan is to be 12 months after the date on which the supports in (a)-(q) above are included in MKKX’s statement of participant supports;
·All other supports in MKKX’s existing statement of participant supports are to be replicated pro-rata from the date on which the supports specified above are included in the MKKX’s statement of participant supports until the reassessment date; and
·The management of funding for reasonable and necessary supports is to remain the same as the management for those supports in the statement of participant supports dated 10 October 2023.
............................[SGD]............................
Senior Member J Collins
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME –- reasonable and necessary supports – consideration of s 34 National Disability Insurance Scheme Act 2013 (Cth) – Thermomix - fixed air-conditioning unit – minor home modifications – locks - domestic assistance – assistive technology – compression garments – briefs – leggings – recumbent bicycle – lever taps - CPAP accessories – out-of-pocket psychology expenses – 36-month review date - decision set aside and remitted to the Respondent.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s2A, s33, s42D
National Disability Insurance Scheme Act 2013 (Cth) s34, s35, s48, s103
National Disability Insurance Scheme (Supports for Participants) Rules 2013Cases
G v Minister for Immigration and Border Protection [2018] FCA 1229
Mazy and National Disability Insurance Agency (NDIS) [2018] AATA 3099
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
Shi v Migration Agents Registration Authority (2008) 235 CLR 286Secondary Materials
NDIS – Operational Guidelines – Assistive technology, as of 20 December 2023
NDIS – Operational Guidelines – Home modifications, as of 11 October 2022
NDIS – Operational Guidelines - Reasonable and necessary supports, as of 6 October 2023REASONS FOR DECISION
Senior Member J Collins
19 April 2024
MKKX is a 53-year-old woman and a participant of the National Disability Insurance Scheme (‘the scheme’). As a participant in the scheme she is provided certain supports by the National Disability Insurance Agency (‘the Agency’). MKKX however seeks approval for further supports to be funded in relation to her disability.
The issue before the Tribunal is whether these supports requested are ‘reasonable and necessary’ supports pursuant to section 34 of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) and should therefore be included in her statement of participant supports (‘SOPS’).
BACKGROUND
MKKX was granted access to the scheme on 24 August 2022.[1] The Agency subsequently approved a SOPS with a review date of 21 September 2023 (‘the first SOPS’).[2]
[1] R1: Respondent’s Statement of Facts, Issues and Contentions at [4].
[2] Respondent’s Closing Submissions dated 10 February 2023 at [20].
MKKX requested an internal review of the first SOPS to seek further supports in relation to her impairments arising from her disabilities of Ehlers Danlos Syndrome along with other physical comorbidities including Postural Orthostatic Tachycardia Syndrome.[3]
[3] T Documents, T21, page 209.
On 19 December 2022 the Agency confirmed the decision to approve the first SOPS on the basis that the further supports sought were not reasonable and necessary.[4] MXXK subsequently applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of that decision (‘the decision under review’).
[4] T Documents, T1A: Outcome of Internal Review.
At the hearing MKKX was not legally represented. She was however assisted by Mr Bob Buckley, a representative of Autism Aspergers Advocacy Australia. The Agency was represented by Ms Jasmine Forsyth, Solicitor, Moray Agnew Lawyers.
THE DECISION UNDER REVIEW
On 16 January 2023 the Agency conducted an unscheduled reassessment pursuant to section 48(1) of the NDIS Act. Accordingly, a new SOPS was issued to facilitate the approval of further supports for MKKX with a review date of 16 January 2024 (‘the second SOPS’).[5]
[5] T Documents, T35, pages 281-282.
On 10 October 2023 following a remittal of the decision under review, the Agency varied the second SOPS to include further supports for MKKX (‘the third SOPS’). Pursuant to section 103(2)(e) of the Administrative Appals Tribunal Act 1975 (Cth), I am satisfied that the first SOPS as subsequently varied on 10 October 2023 remains before the Tribunal to review.
ISSUES
During the course of the hearing the Agency conceded that the following supports, calculated at a total of $2,298.95 are reasonable and necessary for MKKX and should be included in her statement of participant supports:
·Wrist, ankle, knee, sacrum and shoulder splints/braces;
·2XU compression tights;
·Front closure arm compression three-quarter sleeve top;
·Hypermobility crutches;
·Electric heating therapy pad;
·Grip Pain Relief Therapeutic Heat Glove;
·Bodicheck Premium Shoulder and Neck Hot/Cold Pack Reusable Nylon with Towel Bag;
·Opal Hot/Cold Pearl Gel Pack – Large;
·Swivel cushion for car;
·Seat belt easy-reacher;
·Bottom-wiper;
·Long-handled toe washer; and
·Long-handled bath sponge.
Subsequent to the hearing and in light of further evidence the Agency has conceded that the following supports are also reasonable and necessary for MKKX and also should be included in her statement of participant supports:
·Hoka orthopaedic shoes, Hydrotherapy shoes and orthotics in an amount of $855.00 annually; and
·Home oxygen concentrator in a one-off amount of $1,900.00 plus $29.15 for accessories.
At the commencement of the hearing, upon enquiry by the Tribunal the Agency proposed that these supports be included in MKKX’s SOPS by way of a further remittal of this matter following determination of the outstanding supports sought. I accept that this is a reasonable approach to adopt.
For the purposes of this review MKKX seeks funding for the following supports:
·Thermomix TM6 model with various attachments - $2,855.85;
·Air-conditioning unit including installation - $2,651.00;
·Home modifications for the purchase and installation of locks and an external lattice door - $6,831.55;
·An increase of 2 hours per week of support worker hours over 52 weeks for household cleaning;
·Consumables for the one-off purchase of:
oNormatec Lower Body dynamic air compression garment - $1,700.00;
oA recumbent bicycle, plus a cover and shipping costs - $659.30; and
oLever taps for kitchen - $1,378.80;
·Consumables for the annual purchase of:
oFlat knit compression - $1,600 annually ($800 a pair);
oClassic full briefs - heavy overnight – 4 pairs at $33.50 each - $134 annually;
oAnti-chafing medium to heavy shorts – 4 pairs at $50 each - $200 annually;
o7/8 active legging moderate to heavy - $99 annually;
oClassic full brief 7 pack - $192 annually; and
oAncillary items for CPAP including cords and nasal pieces - $100 annually;
·Reimbursement of out-of-pocket psychology expenses - $272.70.
MKKX submits that these supports are ‘reasonable and necessary’[6] and should be included in her SOPS.
[6] Section 34 NDIS Act.
Further that her SOPS should have a review date of 36 months.
The Agency disagrees and submits that the decision under review should instead be remitted to the Agency with a direction that only the supports referred to at [9] and [10] above be included in MKKX’s statement of participant supports.
Further, that a review date of 12 months from the date of this decision is appropriate.
THE NATIONAL DISABILITY INSURANCE ACT 2013 (CTH)
In respect of what constitutes a ‘reasonable and necessary’ support for the purposes of the NDIS Act, section 34 provides as follows:
Reasonable and necessary supports
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is most appropriately funded or provided through the NationalDisability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
Section 34(1) is cumulative and therefore all the criteria must be met. Section 34(2) provides that the NDIS rules may prescribe methods or criteria to be applied, or matters to which the CEO must have regard, in deciding whether they are satisfied criteria under section 34(1) are met in respect of a requested support.
Section 35 of the Act provides for the making of rules in relation to prescribing reasonable and necessary supports or general supports that will not be funded or provided under the NDIS. The relevant rules in respect of this review are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘the Support Rules’).
Rules 3 and 5 of the Support Rules provide as follows:
Value for money
3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d) for supports that involve the provision of equipment or modifications:
(i) the comparative cost of purchasing or leasing the equipment or modifications; and
(ii) whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
Effective and beneficial and current good practice
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
Reasonable family, carer and other support
3.4 In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
(a) for a participant who is a child:
(i) that it is normal for parents to provide substantial care and support for children; and
(ii) whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age; and
(iii) the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and
(iv) whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing;
(b) for other participants:
(i) the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and
(ii) the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:
(A) the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and
(B) the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and
(C) the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and
(iii) the extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes;
(c) for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.
Supports appropriately funded or provided through the NDIS
3.5 Schedule 1 sets out matters for the CEO to have regard to in considering whether supports are most appropriately funded or provided through the NDIS, rather than through other service systems (service systems is defined in paragraph 6.4).
3.6 The matters to have regard to are set out under the following headings in the Schedule:
(a) Health (excluding mental health);
(b) Mental health;
(c) Child protection and family support;
(d) Early childhood development;
(e) School education;
(f) Higher education and vocational education and training;
(g) Employment;
(h) Housing and community infrastructure;
(i) Transport;
(j) Justice.
3.7 Where particular supports are set out in the Schedule as being appropriately funded or provided through the NDIS, the CEO must still be satisfied of a number of other matters in order for the supports to be funded or provided (see paragraphs 2.3(a)-(e) of these Rules and paragraphs 34(a)-(e) of the Act).
………………………
A support will not be provided or funded under the NDIS if:
…
it is not related to the participant’s disability; or
it duplicates other supports delivered under alternative funding through the NDIS; or
it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
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):
additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
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.
In McGarrigle v National Disability Insurance Agency[7] at [43] Mortimer J (as her Honour then was) made the following observations:
‘The [Supports Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement…some policy decision-making about the nature and extent of supports to be provided or funded’.
[7] McGarrigle v National Disability Insurance Agency [2017] FCA 308 (‘McGarrigle’).
The phrase ‘reasonable and necessary’ is not defined in the Act. It is a composite phrase and should be considered as such. In McGarrigle Mortimer J stated as follows: [8]
‘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 support is “reasonable” requires a different assessment to whether a support is 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] [2017] FCA 308 at [19].
The Full Court in National Disability Insurance Agency v WRMF[9] also considered the meaning of reasonable and necessary supports, and stated as follows [149]-[151]:
‘The phrase is a composite phrase. We accept 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] HCA25; (2006) 227 CLR532 at [19], '[t]here are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts'.
…Both adjectives qualify the noun “support”, but 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 their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.’
[9] National Disability Insurance Agency v WRMF [2020] FCAFC 79 (‘WRMF’).
OPERATIONAL GUIDELINES
The Agency issues Operational Guidelines in relation to what are considered ‘reasonable and necessary supports’ in a participant’s plan. There is no power conferred by the Act to make these Operational Guidelines, and they are issued in an exercise of executive power.[10] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines. However, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[11] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[12] where Mortimer J held:[13]
‘Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it’.
[10] G v Minister for Home Affairs [2019] FCAFC 79 at [18].
[11] [1979] AATA 179 (1979); 2 ALD 634.
[12] [2018] FCA 1229.
[13] Ibid at [171].
Accordingly, unless the Operational Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in a determination of what is a reasonable and necessary support for MKKX. The Guidelines relevant to this review are the NDIS – Operational Guidelines - Reasonable and necessary supports.[14]
[14] Webpage: ourguidelines.ndis.gov.au
EVIDENCE
I have considered all the written evidence filed with the Tribunal provided in the joint bundle, the oral evidence provided at the hearing on 14, 15 and 16 February 2024 and further evidence provided after the hearing. I have also taken into account the parties’ closing submissions. I will refer in my decision to evidence that in my view is directly relevant to the determination of this matter.
In making my decision and pursuant to section 33(5)(a) of the NDIS Act I have also taken into account MKKX’s statement of goals and aspirations as set out in her statement of participant supports.
Evidence about MKKX
MKKX lives with her husband who works full-time. She has an adult son who also lives with her as a temporary arrangement.
MKKX has a disability arising as a consequence of the impairments which affect her as a result of her diagnoses of Ehlers-Danlos Syndrome (EDS) and other physical co-morbidities including Postural Orthostatic Tachycardia Syndrome (POTS). EDS is a connective tissue disorder. POTS/Dysautonomia is a dysfunction of the autonomic nervous system which results in difficulty maintaining a regular heart rate and blood pressure when upright.
MKKX identifies the following impairments:[15]
[15] A3, page 14; A19, page 115; A40, page 211;
·Hypermobility and joint instability;
·Fatigue including from circulatory instability;
·Muscle weakness/tension and spasms;
·Migraines and ‘coat-hanger’ headaches;
·Skin fragility and bruising;
·Neck and back pain;
·Sleep disturbances;
·Reduced exercise tolerance;
·Lipoedema;
·Sensory processing issues;
·Vertigo, fainting and dizziness;
·Cognitive issues including forgetfulness, memory problems, difficulty concentrating, mental fatigue, brain fog and impaired cognition;
·Cardiovascular issues including low blood pressure, heart palpitations and abnormal heart rate;
·Disturbed bladder and bowel function;
·Osteoarthritis in both thumbs;
·Gastrointestinal issues including abdominal pain, bloating, nausea, reflux symptoms, vomiting, constipation and diarrhea;
·Proprioception disorder causing balance issues, uncoordinated movement and clumsiness;
·Hypersensitivity to light, sound, touch movement and extreme temperatures;
·Dehydration; and
·Heating and overheating.
In her participant plan MKKX refers to the following goals:[16]
·increase her independence around the home, improve her physical environment and explore technology to make her home safe for her to access;
·be supported to be the wife and mother she wants to be and to explore work and hobby options if/when her body might be able by managing the physical and mobility aspects of her disability;
·increase her independence within the community, including being able to spend time as she used to;
·develop strategies and techniques to build her capacity to manage the cognitive aspects of her disability; and
·maintain her mental health and develop strategies to manage the emotional impacts of her disability on her health and wellbeing.
REASONABLE AND NECESSARY SUPPORTS
[16] T Documents, T35.
Is a Thermomix a reasonable and necessary support?
MKKX seeks funding for the purchase of TM6 Thermomix with various attachments at a cost of $2,855.85.
MKKX’s Contention
MKKX submits that a Thermomix will provide her with an ‘opportunity for independence’ in her kitchen.[17]
[17] A6, page 49.
Further, that a Thermomix represents value for money on the basis that she would otherwise need her current support worker hours increased by 5 hours per week to assist with meal preparation.[18]
[18] A6, page 50.
Evidence of MKKX
MKKX’s evidence is that she has trialled a Thermomix lent to her by Ms Rachel Trudgian, occupational therapist since December 2023.[19] She referred in oral evidence to a variety of meals she had cooked with this device. Also, to having had a cooking lesson with a Thermomix instructor. She stated that her support worker has limited time to assist her with meal preparation and that a Thermomix would affect her daily life by helping her to achieve her goals.[20]
[19] Transcript, page 152 lines 6-7.
[20] Applicant’s Closing Submissions filed 25 March 2024, page 2.
MKKX submits that by increasing her independence in tasks of meal preparation, a Thermomix will help her to achieve her goal of managing and maintaining her home. It will also assist her in catering for her dietary needs and facilitate her enjoyment of cooking, thereby helping her to achieve her goal to improve her mental and physical health. [21]
[21] A6, page.49-50; A52, page 277.
She further submits that it is not reasonable to expect her husband to provide assistance with meal preparation on the basis that:
·There is no ‘meal schedule’ with an expectation for her husband and her son to take on a regular role of cooking. Further, her husband is often working at the same time she has breakfast and lunch during the week and therefore she requires another ‘mechanism’ to prepare meals;
·Her husband is not ‘gifted’ in the kitchen and does not possess the capability with respect to her dietary implications in cooking;[22]
·MKKX’s husband is her ‘carer’ and also works full-time in a ‘stressful job’ as a police officer. In this context MKKX provides the following rationale:
‘The ongoing capacity of my carer is critical to the well-being of myself as a participant so my husband as carer, his well-being is at risk and compromises the capacity to continue in his caring role if I don’t have independence with cooking’.
[22] A57 at [57] and [66].
Mr Buckley, as advocate for MKKX also submits that a Thermomix is a reasonable and necessary support. He referred to the decision of Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852, and stated that the Tribunal needs to consider how supports affect a participant’s daily life by helping them achieve their goals and/or facilitate their community participation.[23]
[23] Advocate’s Closing Submission dated and filed 25 March 2024.
Mr Buckley submits that in assessing whether a support is reasonable and necessary the Tribunal can also appreciate that for MKKX, like many other people with disability:
·Independence in food preparation is an implicit goal of daily life, and
·‘Community participation’ means contributing to the community of their own household.
Ms Emma Taylor
Ms Emma Taylor, occupational therapist with a speciality in hand therapy provided documentary and oral evidence to the Tribunal.[24] She has been one of MKKX’s treating practitioners for approximately six months.[25]
[24] A47: Letter of Ms Emma Taylor dated 6 October 2023.
[25] Transcript, page 71 lines 23-24.
She stated that MKKX has ‘significant pain’ at the base of both thumbs from arthritis which had resulted in the collapse of the joints in her thumb.[26] MKKX also has the added overlay of EDS which causes joint hypermobility in the fingers and thumbs.[27]
[26] Transcript, page 68 lines 12-13; page 73 line 27-28.
[27] Transcript, page 72 lines 36-37.
It is the combination of these symptoms that, Ms Taylor considered, makes it important for MKKX to employ activity modification and energy simplification strategies to minimise her pain, reduce the progression of osteoarthritis and maximise her function.[28]
[28] A47, page 239.
Ms Taylor recommended a Thermomix as one such strategy for MKKX as it would reduce the forces required through the small joints of her hands, in particular her thumbs, and assist in reducing pain during cooking.[29] Ms Taylor explained that the thumb ‘is responsible for about 40 percent’ of function in the hand.[30]
[29] A47, page 239.
[30] Transcript, page 70 line 36.
Ms Taylor referred to the cutting motion required for meal preparation and the difficulty MKKX experienced in this activity. The benefit of a Thermomix for MKKX was to replace twisting, turning and cutting actions in respect of preparing food thereby reducing the ‘forces’ on MKKX’s joints including her thumbs.[31]
[31] Transcript, page 70 lines 11-16.
Ms Taylor identified other assistive devices such as an adaptive knife or modified cutlery however stated that ‘they don’t necessarily reduce the forces adequately, particularly for someone like MKKX, again, where we’ve spoken about she’s got fairly advanced arthritis in her thumbs, but she’s also got that overlay of the EDS as well’.[32]
[32] Page 72 lines 29-37.
Ms Taylor confirmed that she had not trialled a Thermomix with MKKX nor was one available at her place of work to practice with and advise on functional use.[33] In making her recommendation of a Thermomix she confirmed that she had relied upon a ‘general knowledge’ of this technology.[34]
[33] Transcript, page 70 lines 18-23.
[34] Transcript, page 70 lines 23-27.
Ms Rachel Trudgian
Ms Rachel Trudgian, occupational therapist, provided some sixteen reports in this matter which were to a large extent repetitive in their content.[35] She also provided oral evidence at the hearing. Ms Trudgian has a Masters of Science in Advanced Clinical Practice and experience in relation to EDS.[36]
[35] Exhibit 2: T Documents, T1C, dated 8 July 2022; T3, dated 11 May 2021; T4, dated 13 June 2021; T9, dated 18 November 2021; T13, dated 20 January 2022; T19, Care and Needs Scale dated 10 August 2022. Exhibit 1: A4, Request for Thermomix dated 2 March 2023; A5, Addendum dated 2 March 2023; A13, Addendum dated 29 May 2023; A17, Thermomix Endorsement dated 10 July 2023; A26, Minor Home Modification Assessment dated 10 July 2023; A27, Multi-Disciplinary Intervention Endorsement dated 10 July 2023; A28, Low-Cost AT Items Endorsement dated 10 July 2023; A33, Air Conditioning Endorsement dated 9 July 2023; A40, Air Conditioning Endorsement dated 24 October 2023; A41, Thermomix Endorsement dated 24 October 2023.
[36] Transcript, page 146 lines 9-10.
Ms Trudgian recommended that MKKX be funded under the scheme for a Thermomix. The basis for her recommendation can be summarised as follows:[37]
·MKKX has weak joints that are unreliable and subluxate. She experiences ‘microtraumas’ in her joints on an unpredictable but regular basis;
·When MKKX’s joints sublux she experiences fatigue as well as pain which affects her ability to undertake a variety of tasks including meal preparation and cooking;
·Meal preparation is significantly difficult and also painful for MKKX. She takes longer than other able-bodied people to complete this task and is often unable to complete preparing and cooking a meal;
·MKKX is unable to use utensils, lift heavy pots/pans or complete repetitive movements such as stirring, squeezing, peeling and grating. These movements require a level of strength, exertion and twisting often of both hands placing MKKX at risk of subluxation and pain. She cannot open a ring-pull tin of food, twist open a jar or use a can opener;
·Alternative technologies that MKKX currently uses including a slow cooker, pressure cooker and food processor will not perform the joint task of chopping and cooking food. MKKX also reported anxiety around the ‘explosive nature’ of the pressure cooker lid and referred to the limited variety of foods these technologies were able to prepare;
·Alternate brands of thermal mixers made by other manufacturers were also considered by Ms Trudgian as unsuitable for a variety of reasons including the weight of the device and the requirement to use both hands to remove, fix and manipulate the lid;
·Other assistive aids were also trialled including a chopping board with spikes to hold food being cut, an L-shaped knife and an adapted vegetable peeler. Ms Trudgian did not however state why these why these may not be suitable.
[37] A4, A5, A6 page 49, A13 page 80, A23, A24, A29, A34.
Ms Trudgian also identified the following other benefits of a Thermomix for MKKX:[38]
·On the basis of EDS being a degenerative condition MKKX’s function will over time deteriorate. As a consequence of this functional decline MKKX will require assistance with meal preparation for the remainder of her life. Funding for a Thermomix is therefore a cost-effective solution, reducing over time the cost of funding a support worker to assist with food preparation. Ms Trudgian identified by an example the costs of a support worker for two hours per week for the purpose of meal preparation correlating with an annual amount of $4000.00;
·It will prolong MKKX’s safe and independent participation in meal preparation for as long as possible and increase her independence in managing the daily task of meals. Ms Trudgian referred to features such as an automatic lid lock and the option to order ingredients directly from a supermarket;
·It will support MKKX’s ‘brain fog challenges’ she faces when cooking including following a recipe, understanding text-only instructions and remembering to turn off a stove or oven;
·MKKX has various food allergies and intolerances as a result of gastric complications that are secondary to her EDS. A Thermomix offers a ‘guided cooking platform’ of pre-programmed recipes that can be tailored to specific food intolerances and afford MKKX variety, choice and control; and
·A Thermomix will better preserve MKKX’s joints than similar technologies. By comparison it is of a lighter weight and comprised of fewer components than alternatives assessed by Ms Trudgian and has a light-weight lid that can be operated using one hand thereby preserving MKKX’s joints.
[38] A4; A17.
In her oral evidence Ms Trudgian explained that when attending an information session for occupational therapists on adaptive cooking she became aware of what a Thermomix could do for ‘someone with a disability’.[39] Ms Trudgian subsequently purchased a Thermomix which she has since lent to MKKX.
[39] Transcript page 152 lines 1-4.
She confirmed that in using the Thermomix MKKX had not been able to do things completely independently, but that she had been able to prepare more foods which provided her with more joy and helped her to be more involved in the kitchen.[40] Ms Trudgian explained that MKKX would never be completely independent in cooking however a Thermomix would increase her ability to access this activity and become more involved in cooking.[41]
[40] Transcript, page 152 lines 14-17.
[41] Transcript, page 151 lines 34-36.
Ms Trudgian confirmed under cross-examination that she had not however assessed MKKX’s ability to use a Thermomix, including her ability to lift the Thermomix bowl with one and both hands. She stated:[42]
‘I haven’t had a chance to personally assess her. I am going on her self-report. And in this short-term, she’s been able to access more opportunities in the kitchen. So the short-term benefit based on her report is that it’s a success.’
[42] Transcript, page 152 lines 38- 41.
In her report Ms Trudgian recommended a minimum of 25 hours with an occupational therapist spread out across a number of months to assist and supervise MKKX in utilising a Thermomix for meal planning, preparation and operation. This included trialling the Thermomix at different times of day and night and before and after medical appointments to monitor MKKX’s fatigue levels.[43]
[43] A41, page 226.
Ms Trudgian considered that this supervised trial period was required to gather the necessary evidence and data to demonstrate how MKKX’s capacity will improve by using the Thermomix.
Ms Trudgian explained that due to the fluctuating nature of EDS there may be days when MKKX is not physically able to operate a Thermomix.[44] Ms Trudgian also explained that MKKX would need to trial further assistive technologies once she obtains a Thermomix. These included a decanting vessel to pour liquids, a stylus to select buttons and an aid to help tip the bowl.[45]
Considerations
[44] A17, page 92.
[45] A41, page 227.
I am satisfied that a Thermomix will help MKKX pursue her goals of independence in relation to the preparation and cooking of meals.[46] A Thermomix will also obviate meal delivery services which are a limited option for her in the context of her dietary needs.
[46] Section 34(1)(a) NDIS Act.
A Thermomix will also provide MKKX with greater access to prepare and cook meals for her family and other guests. As such it will assist MKKX’s social participation.[47]
[47] Section 24(1)(b) NDIS Act.
I am not however positively satisfied that a Thermomix will be effective and beneficial for MKKX in the absence of an assessment of MKKX’s ability to use a Thermomix by an appropriately qualified practitioner such as an occupational therapist. Ms Trudgian’s recommendation of a Thermomix for MKKX relies on MKKX’s self-reporting and her general understanding of what a Thermomix can do for ‘someone with a disability’. Neither Ms Taylor or Ms Trudgian have conducted an assessment of MKKX’s capacity and ability to operate a Thermomix and its suitability to her specific disability.
I refer to the evidence of Ms Trudgian that MKKX requires such an assessment to determine how a Thermomix would improve her capacity. Further, that upon obtaining a Thermomix MKKX would need to trial further assistive technologies to assist with her ability in regard to its operation.
By way of further observation I note Ms Trudgian’s evidence that due to the fluctuating nature of EDS there will be times that MKKX does not have the physical ability to use the Thermomix. As such, I also consider that the frequency of use of a Thermomix is relevant to any determination of whether it will be effective and beneficial for MKKX.
Ms Trudgian was unable to provide an opinion on the likely frequency of use in referring to the fluctuating nature of MKKX’s symptoms. To some extent Ms Trudgian’s response was understandable not having assessed MKKX’s ability. Notwithstanding, evidence on this issue would have assisted the Tribunal.
Based on the evidence I am not satisfied that a Thermomix is a reasonable and necessary support for MKKX pursuant to section 34(1) of the NDIS Act.
Is an air conditioner in MKKX’s living room a reasonable and necessary cost?
MKKX’s contention
MKKX contends that a fixed air-conditioning unit in her living room is a reasonable and necessary support for the significant temperature dysregulation she experiences as a consequence of her EDS and her POTS.[48] MKKX relies on the quotation of Cooling Heating Refrigeration Installation Servicing in the sum of $2,651.00.[49]
[48] A29, page 180.
[49] A18, dated 13 February 2023.
MKKX submits that she requires a fixed split-system unit to be installed in her living room on the following basis:[50]
·She accesses a ‘lift/recliner chair’ which has been funded under the scheme in the context of her disability. This lift/recliner chair can be reclined for comfort as part of its function;
·Her lift/recliner chair is located in the living room;
·MKKX uses the living room to sit in her lift chair, socialise with her family and other guests and also watch television;
·MKKX spends most of her time each day in the living room;
·MKKX has air-conditioning in her bedroom and her kitchen, however there is insufficient space in these rooms to accommodate her lift/recliner chair, particularly if she wishes to use the recline function properly; and
·The flow of air-conditioning in MKKX’s bedroom and kitchen does not extend sufficiently to reach the living room.
Ms Trudgian
[50] A5; A6 page 49; A13, page 79; A29.
Ms Trudgian recommended the installation of an air-conditioning unit in the living room of MKKX’s home.
She explained that as a symptom of her EDS, POTS and Dysautonomia MKKX experiences significant difficulties with temperature regulation.[51] Further affecting her heat regulation, MKKX wears compression garments and splints to manage her EDS and lipoedema, which are an added layer to her clothing and cause her ‘overheating’. She also has lowered thresholds to pain from cold and heat, and changes in temperature exacerbates her POTS symptoms in regard to brain fog and cognitive processes.[52]
[51] A13, page 79.
[52] A40, pages 212-213.
Air conditioning helps maintain a controlled atmosphere with a ‘comfortable and stable temperature, especially during hot weather’.[53] Cooler temperatures achieved through air conditioning also assist MKKX in reducing joint inflammation and dealing with fatigue, dizziness and dehydration.
[53] A40, page 212.
She also confirmed that the living room is only area in MKKX’s house where the lift/recliner chair can be positioned and reclined. Further, that there is insufficient room in MKKX’s bedroom to accommodate the lift/recliner chair. The lift/recliner chair positioned in the living room provides MKKX with an alternative seating option other than lying or reclining in her bed.[54]
[54] A13, page 79.
There is no option of installing a ceiling fan in the living room on the basis of the ceiling being old and fragile. In any event a fan, including a pedestal fan does not provide sufficient temperature ‘cooling’. A pedestal fan would also represent a falls risk due to placement of the power cord.
Ms Trudgian also considered that air-conditioning from other rooms is insufficient from the perspective of airflow to sufficiently cool the living room.[55]
[55] Ibid.
Dr Christopher Lekich
Dr Christopher Lekich is a Phlebologist. He is a moderator and expert for the Australasian College of Phlebology on the topic of Lipoedema and provided documentary evidence in regard to his diagnosis of MKKX.[56]
[56] T Documents, T6: Report of Dr Lekich dated 15 October 2021; A12: Report of Dr Lekich dated 23 May 2023; A31: Letter of Dr Lekich dated 11 July 2023.
In his report he confirmed MKKX’s diagnosis of stage III Lipoedema with secondary lymphoedema, resulting in painful accumulation of diseased fat in the arms and legs which will continue to grow with ‘very rapid and permanent’ progression.[57] He explained the requirement for MKKX to wear compression garments on her lower limbs to reduce inflammation and manage the risk of ongoing skin infections, ulcers and blood clots.
[57] A12, page 71 at [7].
On this basis MKKX wears full-length lower limb compression stockings. Dr Lekich stated that MKKX ‘lives in Brisbane, a humid location and requires to be in air conditioning to compensate for heat dysregulation and increased body temperature due to thick, tight compression stockings. Lipoedema can become worse in hot weather. She would benefit from air conditioning in her bedroom’.[58]
Agency’s contention
[58] T Documents, T6, page 109.
In closing submissions the Agency referred to oral evidence of Ms Trudgian that a moveable unit could be placed beside MKKX’s lift/recliner chair.[59] Further, that this positioning would not cause a trip hazard and that a portable unit ‘could be trialled’.
[59] Respondent’s Closing Submissions filed 15 March 2024.
I have reviewed the transcript. Ms Trudgian’s evidence confirms that a portable air-conditioner has not been trialled on the basis of insufficient ‘cash flow to purchase a portable air-conditioning device’.[60] Ms Trudgian accepted that a unit could be positioned in the front living room ‘If the couch was moved’ but then stated ‘But I don’t know where you’d put the couch for your guest, for the – for her family’.[61]
[60] Transcript page 159 line 13-14
[61] Transcript page 158 line 42 – page 159 line 2.
In the circumstances that a portable unit has not been trialled, the Agency submits the Tribunal cannot be positively satisfied the requested air-conditioning is value for money and that section 34(1)(c) of the Act is met.
Considerations
I am satisfied that a fixed air-conditioning unit installed in the living room of MKKX’s home is a reasonable and necessary support for the purposes of section 34(1) of the NDIS Act.
It will assist MKKX in achieving her goal of improving her physical environment, by providing a controlled temperature in the area of her home where a significant portion of her day is spent.[62] It will also facilitate MKKX’s social participation. She will be able to access this area and spend time with her family and other guests in the comfort of a controlled temperature.[63]
[62] Section 34(1)(a) NDIS Act
[63] Section 34(1)(b) NDIS Act.
In the absence of this support MKKX’s only option for the respite of air-conditioning is in her bedroom and kitchen where she is unable to access her lift/recliner chair. Further, the bedroom and kitchen will not facilitate social activities of a comparable benefit to the living room.
A fixed air-conditioning unit in MKKX’s living room represents value for money in that the costs are reasonable having regard to the benefits achieved and the costs of any alternative supports,[64] on the basis of the following:
·Fans do not regulate room temperature;
·MKKX will have an appropriate area in her home where she can engage socially with others and manage her temperature regulation;
·MKKX will be able to manage her temperature regulation in combination with the benefit of her lift/recliner chair;
·A moveable air-conditioning unit is inappropriate option. It would require the reconfiguration of a relatively small living space, which has already limited seating availability for others and also the relocation of the family television. Also relevant is the trip risk of a power cord;[65]
·A fixed unit will provide a controlled temperature without disturbing the limited configuration of the front living room, which includes the television remaining in a visually central location; and
·There is no cure for EDS and best practice for treatment relies on symptom management.[66] The air-conditioner will therefore be of long-term benefit to MKKX.[67]
[64] Section 34(1)(c) NDIS Act.
[65] A33; A40.
[66] A40, page 211.
[67] Rule 3.1 Support Rules.
Air-conditioning will be effective and beneficial for MKKX on the basis of managing her symptoms. At the forefront it will assist with temperature regulation in the context of her severe temperature dysregulation. Assistance in temperature regulation from air-conditioning will further assist MKKX with managing pain from joint inflammation and reduce fatigue, dehydration and decline in cognitive processes.[68]
[68] A33, page 188.
Consideration of the requirements under section 34(1)(e) of the NDIS Act is not relevant in respect of this support. No evidence was before the Tribunal that this support could be or otherwise would be more appropriately funded through another service provider.
Based on the evidence I am satisfied that a fixed air-conditioner installed in MKKX’s living room is a reasonable and necessary support for MKKX pursuant to section 34(1) of the NDIS Act.
Is funding for home modifications of the purchase and installation of locks for external and internal doors and replacement of an external lattice door at MKKX’s home a reasonable and necessary support?
MKKX seeks as reasonable and necessary support funding for home modifications by way of the purchase and installation of two sets of locks for external and internal doors at the front of her home and also the replacement of an external lattice door.[69]
[69] A5, page 36.
These home modifications are sought on the basis that MKKX has impaired strength and poor control in her muscles,[70] which make it difficult for her to use stairs. MKKX must use 16 steps and a single handrail at the rear door to access her house rather than the front door, which can be accessed by only 5 stairs and two handrails.
[70] A2, page 8.
Furthermore, the external front door does not have a handle and must be opened by inserting and turning a key. The internal front door, which is separated from the external front door by a veranda, does not have an external lock and can only be opened from the inside.[71]
[71] A26: Minor Home Modification report dated 10 Jul 2023, page 141.
MKKX relies on the quotation of ‘Ausnorth Building and Construction’ in the sum of $6831.55 which includes as follows:[72]
·Preliminaries - $192.00
·Insurances – $229.15
·Waste removal - $360.00
·Lattice door modifications – $4010.40
·Front door locks – $2040.00
[72] A48: Quote, Ausnorth - Front Door Modifications dated 30 October 2023; Applications closing submissions filed 26 March 2024
MKKX contends that the installation of new locks are required to allow her to access her home from the ‘front’ of her home which, in turn will mean that she does not become house bound and isolated. MKKX states that access to her home in from the front is likely also to reduce the need for a ‘costly stair lift on the back stairs near the car port at my home’.[73]
Ms Trudgian
[73] A6: Applicant’s Statement of Lived Experience dated 26 May 2023, page 50,
Ms Trudgian completed a Minor Home Modification assessment[74] and provided several reports in support of two ‘smart’ locks for the front doors of MKKX’s home as a reasonable and necessary support. She explained that due to MKKX’s hypermobile finger, hand, wrist and elbow joints she was unable to lock and unlock her front door independently.[75] The front door she also explained was the most suitable accessible entry point for MKKX into her home.
[74] A26.
[75] A26 page 141; page 145.
In her Home Modification assessment Ms Trudgian relied on the quotation of ‘Smart Door Locks’ for two locks (not including installation) in the sum of $1,008.98.[76] Ms Trudgian stated:[77]
‘It is recommended that the locks be changed to a mechanism that MKKX will be able to operate safely and independently and with minimal risk of further subluxations/dislocations. After considering multiple locks and locking devices, a smart lock is the best option for MKKX.’
[76] A30; A26 page 149.
[77] A26 page 141.
In September and October of 2023 MKKX obtained further quotations.[78] Following the quotation of 30 October 2023 MKKX changed the estimated cost of the home modifications requested to the Agency to include a new external lattice door to the front of her home and amounting to a new total cost of $6831.55.
[78] A30, Quote of Smart Door Locks Australia dated 10 July 2023; A48: Quote of Ausnorth dated 30 October 2023.
In her oral evidence and in light of this new quotation, Ms Trudgian was unable to proceed with her recommendation. The transcript records the following exchange:
Ms Forsyth:
So Ms Trudgian, can you just let the tribunal know, has there been a change in terms of the locks that have now been recommended?
Ms Trudgian
Yes. And I don’t feel like we have fully explored all of the options for replacing the doors. We got a quote to replace the lattice that seems excessive. We haven’t gone forward to get second quotes. So I don’t feel like this is completely ready for us to be looking at. We originally put in an application with some smart locks, but then we were advised by another smart lock company that we can’t just replace the locks; we’d need to replace the door.
So I don’t feel like this is fully ready, really, for us to be talking about, because – and then that’s why we haven’t put in an application to replace the doors. I thought – I was hoping that it would be just replacing the locks, but it’s more than that given the doors…So, yes, that’s why we haven’t moved forward with that.
Relevantly, the Operational Guidelines – Home modifications state as follows:
To work out if the home modification is likely to be effective and beneficial for you, we’ll look at:
• evidence from skilled professionals like an occupational therapist or home modification assessor. A home modification assessor is an occupational therapist who is qualified to recommend more detailed home modification supports.
In the absence of a suitable assessment in respect of the replacement of a lattice door I am unable to be satisfied that this support represent value for money and will be effective and beneficial to MKKX.
I further note the provision of two alternative quotes to the Tribunal by MKKX for smart locks on the front doors of her home at a much lower cost:[79]
·$1008.77 (not including installation); and
·$1417.14 (including installation).[80]
[79] Rule 3.1(a) Support Rules.
[80] A42: Quote of Luke the Locksmith dated 1 September 2023.
Based on the evidence I am not satisfied that the home modifications, as quoted, to the entry of MKKX’s home are a reasonable and necessary support pursuant to section 34(1) of the NDIS Act.
Is an additional 2 hours of support worker assistance per week for household cleaning a reasonable and necessary support?
MKKX’s contention
MKKX seeks an increase in her support worker hours by two hours per week over 52 weeks for household cleaning. In particular MKKX refers to the following: [81]
‘The physical de-conditioning is chronic pain, poor physical activity and exercise intolerance can result in fatigue upon exertion with headaches and migraines so I need sufficient support in the home to allow me to concentrate on therapy, hence the requirement of additional hours of cleaning and support’.
[81] Transcript, page 28 lines 30-34.
MKKX’s statement of participant supports in her current plan includes a ‘Core Supports’ budget in the sum of $44.049.24 broken down as follows:[82]
·Consumables: low-cost assistive Technology $1,000.00
·Daily activities (9 hours per week) $27.825.72
·Social community and civic participation (4 hours per week) $13,617.76
·Transport $1,605.76
[82] A55: Breakdown of Supports dated 12 January 2024, page 314.
MKKX is able to use the funding in her Core supports flexibly with the exception of the ‘Transport’ component.
The funding in respect of MKKX’s ‘Daily activities’ of nine hours per week is comprised of the following components:
·Three hours per week for assistance with domestic activities calculated at the rate $55.03 per hour;
·Two hours per week for assistance with house cleaning and other household activities calculated at the rate of $54.07 per hour; and
·Four hours per week for assistance with self-care tasks calculated at the rate of $65.47/hour.
Effectively MKKX has a budget of funding for nine hours each week which can be used flexibly for domestic activities, house cleaning, other household activities and self-care tasks. MKKX also has a further four hours’ funding for ‘social community and civic participation’ which can be used interchangeably with her ‘daily activities’ supports including domestic activities, household activities and self-care tasks.
MKKX has a support worker HB who provides support in respect of her ‘Daily activities’ and access to ‘social community and civic participation’.[83] MKKX currently utilises her Core supports to engage HB on a weekly basis as follows:
·Assistance with domestic activities 3 hours
·Social community and civic participation 4 hours
·Assistance with self-care tasks 2 hours
[83] Transcript, page 57 lines 8-9; 29-30.
This leaves MKKX with funding each week for two hours for assistance with self-care tasks and two hours for assistance with house cleaning and other household activities. MKKX allocates her allowance for two hours of self-care at the hairdresser each week on the basis that she is unable to wash her own hair.
MKKX utilises her two hours per week for assistance with house cleaning and other household activities to fund a private cleaning service, ‘Simply Shiny’. MKKX gave evidence that she engages Simply Shiny for four hours each week to clean her home,[84] however that she had been able to allocate funding from elsewhere in her budget stating ‘No, I have been somehow – no, I haven’t been paying the balance’.[85]
[84] Transcript page 57 line 4; page 84 line 6.
[85] Transcript, page 61 lines 1-4.
MKKX gave evidence in relation to the allocation of funds in her budget for various supports which was provided at an hourly flat rate rather than the actual cost per hour for a support. She provided an example of her preferred hairdressing services who charge $130 per hour. MKKX is funded for four hours of self-care at $65.47/hour,[86] and therefore MKKX must allocate two hours of funding for each hour that she does in fact access the hairdresser.
[86] A55.
MKKX’s contention was effectively of there being a shortfall of funding in her Core supports for domestic support, leading to utilisation of her social community and civic participation for domestic tasks and leaving her without sufficient funding for community participation.[87]
Evidence of MKKX
[87] A57 at [77]; Transcript, page 58 lines 44-46.
MKKX explained that aside from a kitchen and living areas her house is otherwise comprised of three bedrooms and two bathrooms. MKKX uses the toilet and shower in her ensuite and often the toilet located inside the main bathroom.[88]
[88] Transcript, page 62-63.
On 23 October 2023 MKKX filed with the Tribunal a schedule prepared by HB which included a schedule detailing the weekly tasks that she performed for MKKX.[89] These were extensive and included assistance with:
·grocery shopping;
·preparing food for MKKX to cook;
·laundry and ironing;
·loading and unloading the dishwasher;
·vacuuming and dusting MKKX’s bedroom, living room, kitchen and bathrooms;
·changing towels and bed linen; and
·removal and cleaning of kitchen waste.
[89] A44: Support Worker Activity Schedule dated 23 October 2023.
In her submission of 15 January 2023, MKKX stated that her husband does ‘all domestic duties of laundry, home maintenance, gardening, maintenance of vehicles and changing of bed sheets’, as well as the grocery shopping.[90]
[90] A57 at [71]; T Documents, T1b page 23, T18.
Further, that the private cleaner ‘Simply Shiny’ only cleans the space utilised by MKKX including her bedroom, the ensuite and main bathroom, the kitchen and the loungeroom and that her husband is then required to dust and clean the other bedrooms.[91]
[91] A57 at [79].
MKKX’s oral evidence was that her private cleaner attends to the entire home comprised of the living areas, three bedrooms, two bathrooms and kitchen. The private cleaner dusts, vacuums and mops and cleans these rooms generally.[92] They also clean the windows of one French door located in MKKX’s home.[93]
[92] Transcript, page 84 lines 26-35.
[93] Transcript, page 62 lines 1-9.
At the hearing MKKX stated that HB does not provide support by way of domestic cleaning.[94] In regard to the cleaning tasks that HB had referred to in her schedule at [108] above, MKKX stated:[95]
‘we’ve had a conversation around her vacuuming and I said it’s not necessary… so it’s not vacuuming the whole house, it would be just vacuuming up a small thing on the carpet or on the non-slip mat in the kitchen or it’s not a whole vacuum and I have specifically said to her to not do that task when in general – like in general unless – because there are just too many other tasks to be done.’
[94] Transcript, page 58 lines 1-2.
[95] Transcript, page 80 lines 36-42.
MKKX’s oral evidence was that within the nine hours she is engaged for on a weekly basis, HB provides assistance with the following tasks:
·Washing and ironing including the steaming of a number of MKKX’s dresses;[96]
[96] Transcript, page 81 line 10.
·Changes bedlinen, towel and toilet paper;
·Tidies the kitchen;
·Takes MKKX’s dog to the toilet;
·Organises and assisting with MKKX’s hydrotherapy requirements;
·Takes MKKX shopping;
·Re-arranges MKKX’s cupboards;
·Assists MKKX accessing her car using her walker;[97]
·Preparation of meals including peeling, cutting and preparing herbs;’[98]
·Loading and unloading the dishwasher;[99]
·Empties kitchen bins; and
·Making cups of tea and lunch for MKKX.[100]
[97] Transcript, page 61 line 36-44.
[98] Transcript, page 63 lines 35-39.
[99] Transcript, page 81 line 2.
[100] Transcript, page 86 lines 39-40.
MKKX explained that she was unable to do very many tasks in her home and cleaning was one such task.[101] She stated that having support with cleaning and activities of her daily living allows her to use her energy to manage her therapy.[102]
[101] Transcript page 80 lines 4-5.
[102] Transcript page 80 line 7.
In regard to whether her husband and son would be able to assist with domestic tasks such as emptying the rubbish bin and replenishment of toilet rolls, MKKX confirmed that such an arrangement had not been discussed.[103] Further, that she would not ask her husband or son to do tasks that she knew HB could do for her.[104]
[103] Transcript, page 81 lines 17-22.
[104] Transcript, page 82 lines 6-8.
MKKX explained that her request for funding for two extra hours was based on the recommendation of her private cleaner and that she had been advised that four hours is ‘what it takes to do a basic cleaning of my house’.[105] MKKX stated that this cleaning service did not cover all the ‘seasonal’ kind of cleaning including other dusting or cleaning walls or ‘anything that anybody else is capable of doing in a normal situation’.[106]
Ms Trudgian
[105] Transcript, page 83 lines 31-37.
[106] Transcript, page 84 lines 15-21.
In her report of 18 November 2021 Ms Trudgian stated that MKKX would benefit from the provision of four to six hours of domestic assistance on a twice weekly basis to assist with buying groceries, meal preparation, changing bed linen, washing clothes and dishes and removing rubbish.[107]
[107] T Documents, T13, page 176.
In her report dated 2 March 2023 Ms Trudgian’s opinion was that MKKX requires a total of between nine to eleven hours of support each week in respect of domestic assistance which included assistance buying groceries, changing bed linen, washing clothes and dishes and emptying rubbish.[108]
[108] A5, page 34.
In her most recent report of 24 October 2023 Ms Trudgian recommended that MKKX receive an increase of two hours of support worker assistance per week for grocery shopping and meal preparation in addition to the two hours MKKX was already funded for.[109] This was on the basis that MKKX ‘has juggled hours from other support categories to cover the tasks that she needed support with.’
Agency’s contention
[109] A41, page 225.
The Agency submits that the request for two extra hours to be applied to house cleaning does cannot be deemed reasonable and necessary on the basis of not satisfying 34(1)(e) and section 34(1)(c) of the NDIS Act. In this regard the Agency refers to the following:
MKKX’s oral evidence that four hours per week was required to clean her house including cleaning two bathrooms and three bedrooms was based on the ‘input of information’ into an online application;[110]
That the four hours per week includes cleaning the bedroom of the Applicant’s son (the second bedroom) and a spare bedroom that is sometimes used by the Applicant’s husband (the third bedroom);
There is no evidence before the Tribunal that the four hours of cleaning takes into account what is reasonable to expect of MKKX’s family to provide, and that a certain number of HB’s tasks could be undertaken by MKKX’s husband or son. These tasks include replenishing toilet rolls, tidying magazines, stacking or unstacking the dishwasher and the removal of rubbish from the kitchen;
Assistance from MKKX’s husband and son would mean that HB would be free to assist with further cleaning tasks; and
In considering the sustainability of the scheme, the Agency submits that the support worker hours currently funded can be used flexibly so household cleaning can be undertaken.
Considerations
[110] Transcript, page 9 lines 14-16.
MKKX’s most recent and tested evidence is that four hours of support worker funding is required each week for a private cleaner to clean her whole house including the bedroom of her son and a spare bedroom used by her husband.
It is not the responsibility of scheme to fund the cleaning of MKKX’s home to the extent of its use by both her husband and son. Funding for supports is necessarily directed at an applicant’s reasonable and necessary needs. Funding is not to supplement an applicant’s incapacity or inability to care for other family members within a domestic relationship.
Ms Trudgian’s opinion is that MKKX requires between 9 and 11 hours per week for assistance with domestic tasks including buying groceries, meal preparation, changing bed linen, washing clothes and dishes and removing rubbish. Ms Trudgian also recommends an increase in hours for support worker assistance for MKKX to access the community and recreational activities, although she gave no amount of hours required or evidence as to why the current funding of hours was insufficient.[111]
[111] A5, page 36.
Ms Trudgian recommendation did not include an allowance for the regular routine domestic clean of MKKX’s home to the extent of use by MKKX.
I am satisfied that MKKX receives a total of 13 hours funding in her Core supports budget for support worker assistance that can be used flexibly to access the supports recommended by Ms Trudgian.
The evidence of MKKX is that she has satisfactorily ‘juggled’ these 13 hours such that she is able to access:
·Nine hours funding each week for HB to assist with domestic activities, access to community and activities of self-care;
·Two hours funding each week for self-care to see a hairdresser; and
·Four hours each week for domestic cleaning provided by ‘Simply Shiny’.
In the absence of further evidence in regard to this calculation I accept MXXK’s submission that she has never personally funded these supports.
I am not satisfied on the evidence that there is a shortfall in funding of support worker hours for MKKX when taking into account what is reasonable to expect her husband and son to provide. In this regard I have considered the following:
·MKKX uses 4 hours of her flexible funding for a private cleaner to clean all of her house including areas used by her husband and son that she does not access;
·Tasks that are performed by HB may be undertaken by MKKX’s husband and son, including shared responsibilities such removal of rubbish; and
·In the absence of evidence to the contrary it is consistent with the provisions of section 34(1)(e) to consider that MKKX’s husband and son can provide support by way of cleaning areas of the house that they use, leaving MKKX more funding for support assistance with food preparation and community participation.
MKKX has flexible funding in her plan to enable her to ‘choose’ between the types of assistance she wishes to fund across different types of supports. Funding provided in MKKX’s Core supports budget can be allocated at her discretion and is not ‘intended’ for a particular support as MKKX submits.[112] Simply because MKKX allocates funding from one type of support assistance to another does not in itself demonstrate a deficiency of funding.
[112] A57, at [77].
I do not consider that an increase in funding for two hours per week of support worker assistance for household cleaning is a reasonable and necessary support for the purposes of section 34(1) of the NDIS Act.
Is Assistive technology funding for flat knit compression stockings and a Normatec lower body dynamic air compression system a reasonable and necessary support?
MKKX seeks funding for a Normatec lower body dynamic compression system (‘Normatec system’) and flat knot compression stockings to manage her lymphedema which is secondary complication of her lipoedema. A Normatec system is a sequential compression pump as a form of MLD that can be used at home.
Dr Lekich
MKKX relies on the recommendation of Dr Lekich who is a physician with 17 years’ experience as a Phlebologist managing conditions including lymphoedema and lipoedema.[113] In a report of 15 October 2021 Dr Lekich provided the following explanation:[114]
‘MKKX suffers greatly from lipoedema which has progressed to stage III Lipoedema with secondary Lymphedema. It is a diseased fat that has accumulated in the arms and legs which is painful and has robbed MKKX of mobility from the disproportionate accumulation of the diseased fat in the legs. There has been a loss of the ability to self-care and a loss of enjoyment in life. Further, the condition will lead to a significant increased risk of repeated skin infections and ulcers and blood clots (which can be life threatening). Patients with Lipoedema cannot exercise or diet fat away’.
[113] T Documents, T6: Report of Dr Lekich dated 15 October 2021.
[114] T Documents, T6, page 107.
Dr Lekich stated that surgery is not an option for MKKX and referred to a number of conservative measures which ‘will reduce the burden of her disease’. These measures included:[115]
·Compression garments for the lower limbs to reduce significant lymphoedema, risk of ongoing skin infections and associated discomfort;
·Appropriate regular use of expertly administered flat knit compression stockings and compression wraps to reduce inflammation, and reduce the risk of repeated skin infections and ulcers as well the risk of blood clots in the legs and lungs;
·Ongoing services in the form of physiotherapy, exercise physiology and hydrotherapy/water physiotherapy for general physical and psychological wellbeing; and
·Weekly manual lymphatic drainage (MLD) from a licensed manual lymph drainage therapist to reduce inflammation, pain and the risk of repeated skin infections and ulcers.
[115] T Documents, T6, page 108.
Dr Lekich stated that MKKX would ‘benefit’ from a manual lymphatic drainage pump which ‘could be used as prescribed morning and night to help manage pain and to maintain/slow down the progression of her disease.’.[116]
[116] T Documents, T6, page 108.
Dr Lekich provided further evidence in a report dated 23 May 2023.[117] Dr Lekich again recommended for MKKX weekly MLD in combination with other conservative management strategies including flat knit compression garments and a dietician specialising in Lipoedema.
[117] A12: Report of Dr Christopher Lekich dated 23 May 2023.
On 11 July 2023 Dr Lekich provided further information at the request of the Agency In relation to the requirement for weekly MLD and any other lower-cost options.[118] Dr Lekich stated that optimal results for MLD are yielded when it is combined with other conservative management which may include:
·wearing custom made flat knit compression garments;
·aquatic exercise;
·physiotherapy;
·exercise physiology;
·low inflammatory diet in consultation with a dietician; and
·sequential compression pump.
[118] A31: Report of Dr Christopher Lekich dated 11 July 2023.
Dr Lekich provided a link to a webpage at ‘medirent.com’ for Sequential Intermittent Pneumatic Compression pump devices. He did not refer to any particular compression device although he estimated the cost for MKKX to be $1,139.00 to purchase or that it could be rented as part of a rent to buy arrangement.
Ms Trudgian
In her report of 10 July 2023 Ms Trudgian supported MKKX’s request for a ‘Normatec lower body dynamic air compression system’ in the sum of $1,700 ‘as recommended by Dr Lekich’.[119] The rationale for her recommendation stated, ‘Please see endorsement from Dr Lekich’.
[119] A28, page 158.
In her report of 24 October 2023 Ms Trudgian again recommended the Normatec lower body garment for MKKX in the context of having considered an alternative item of 16-chamber ‘bio compression’ pants from medicare.com with a quoted purchase price of $2915.00 or available under a Rent Try Buy scheme in the sum of $220.00 per month.[120]
Ms Shannon Al Samaraie
[120] A50, page 252.
Ms Shannon Al Samaraie, a physiotherapist with an expertise in lymphoedema provided a letter to the Agency on 31 May 2023 containing her recommendation in regard to Lipoedema treatment for MKKX.[121] Ms Al Samaraie recommended the prescription of flat knit class two compression stockings with an estimated cost to be in the range of $300 to $800 per pair and requiring replacement at least every six months.
[121] A9: Report of Pear Exercise Physiology dated 31 May 2023.
Having considered the evidence I am satisfied that flat knit compression stockings are a reasonable and necessary support. My considerations are as follows:
·Dr Lekich has significant experience and expertise in the treatment of Lipoedema including secondary complications of lymphoedema. His evidence was persuasive and uncontradicted;
·Dr Lekich recommended flat knit compression stockings for MKKX in combination with weekly MLD and the use of a pneumatic compression pump for MKKX to manage her lymphoedema;[122]
·There is no evidence that compression socks, which MKKX currently uses, when combined with MLD will produce the same results as flat knit compression stockings and would therefore represent a duplicate support, as the Agency submits;[123]
·No evidence was provided that the costs of compression socks could more appropriately be funded by another service provider. I accept the evidence of Dr Lekich that the costs of compression garments are not covered through government schemes or by Medicare; and
·MKKX’s quality of life will be affected by the progression of lipoedema and the consequences of reduced lymphatic function.[124] Management of her lipoedema is therefore fundamental to supporting her goal of independence and her ability to engage with others including in the community for social activities.[125]
[122] Section 34(1)(c) NDIS Act.
[123] Respondent’s Closing Submissions at [20]; Section 34(1)(c) NDIS Act.
[124] A31, page 185.
[125] Section 34(1)(a); section 34(1)(b) NDIS Act.
In finding that flat knit compression stockings are a reasonable and necessary support, having regard to the variation in costs I would rely on the parties to use a common sense and reasonable approach for the provision of two pairs.
I am not satisfied that funding for the ‘Normatec lower body dynamic air compression system’ in the sum of $1,700.00 is a reasonable and necessary support on the basis that I am not satisfied it represents value for money for the purposes of section 34(1)(c) of the NDIS Act.
My considerations are as follows:
·In his report of October 2021 Dr Lekich considered that MKKX ‘would benefit’ from a compression pump and that it ‘could be used’; however he did not specifically recommend it as a support in the context of his recommendations for MKKX;[126]
·In his report of May 2023 and in regard to reasonable and necessary supports for MKKX, Dr Lekich did not make any reference whatsoever to compression pump devices;
·On 10 July 2023 Ms Trudgian recommended the Normatec system on the basis of Dr Lekich’s recommendation and endorsement. I am not satisfied he had made such a recommendation for, or as such endorsed any Normatec system for MKKX;
·Dr Lekich in his letter of 11 July 2023 provided a webpage link to a number of lymphatic compression devices from ‘medirent.com’. Dr Lekich did not make any specific reference or recommendation of a particular device for MKKX;
·No evidence was provided in regard to the benefits of a sequential pump beyond that which is achieved by compression socks or MLD;
·Ms Trudgian refers to the Normatec system as a low-cost Assistive technology for MKKX.[127] This is incorrect and I refer to the relevant Operational guidelines as follows:[128]
Mid cost assistive technology: between $1,500 and $15,000 per item
……
For all mid cost assistive technology approved in your plan, you need to get written advice from an assistive technology advisor before you buy the item.
For mid cost items that are low risk, you need to get your advisor to make sure the item is right for you.
[126] T Documents, T6, pages 108-109.
[127] A28, page 158; A29, page 177-170; A35, page 197.
[128] NDIS Operational guidelines – Assistive technology, pages 6 and 14.
I am not satisfied, on the evidence that a Normatec 3 dynamic air compression device has been appropriately recommended for MKKX.
I further note that Dr Lekich refers to a Rent Try Buy system for the sequential pump devices available through Medicare.com with a comparative cost offered pursuant to Rule 3.1(d)(i) of the Support Rules. Further, that pursuant to Rule 3.1(a) comparable supports have not been sufficiently explored to establish whether the same outcome may be achieved at a substantially lower cost.
Based on the evidence however I am satisfied that two pairs of flat knit compression socks are a reasonable and necessary support for MKKX pursuant to section 34(1) of the NDIS Act.
Are incontinence aids a reasonable and necessary support?
MKKX seeks funding for the following incontinence aids:
·Classic full briefs - heavy overnight – 4 pairs at $33.50 each - $134 annually
·Anti-chafing medium to heavy shorts – 4 pairs at $50 each - $200 annually
·7/8 active legging moderate to heavy - $99 annually
·Classic full brief 7 pack - $192 annually
The requested incontinence aids are recommended in a schedule prepared by Ms Trudgian.[129] Ms Trudgian that: [130]
‘MKKX reports that she has to wear pads constantly, day and night as she is consistently incontinent of urine due to her weakened bladder muscles, secondary to her EDS. MKKX also gets urinary tract infections (UTI’s) easily. As part of her continence management, MKKX must ensure that when she does go into the community, she is close to a toilet as often as possible.’
[129] A50, pages 13-15
[130] T Documents, T13, page 163.
MKKX also provided the report of Ms Marlisa Kwan, physiotherapist, who stated that MKKX experiences intermittent bladder incontinence and ‘intermittently requires the use of day/night pads.’[131]
[131] A3: Report of Ms Marlisa Kwan dated 14 February 2023, page 14.
The Agency submits that in the absence of an incontinence assessment outlining MKKX’s continence needs the Tribunal cannot be satisfied that the incontinence aids are a reasonable and necessary support.[132] On this basis the Agency proposed that a continence assessment of approximately three hours to be conducted by MKKX’s preferred physiotherapist/pelvic floor specialist.[133]
[132] Respondent’s Closing Submissions at [25].
[133] Respondent’s Closing Submissions at [26].
Mr Buckley submits that the Agency’s request for a continence assessment is unreasonable, stating, ‘This part of the Respondent’s closing submission also demonstrates the Respondent was clearly unprepared for hearing’.[134]
[134] Advocate’s Closing Submission dated 25 March 2024.
At the hearing MKKX confirmed that was ‘there is no continence assessment in the evidence’ or clinical evidence to substantiate her request for continence products including how she had calculated her request.[135]
[135] Transcript, page 92 lines 16-17.
The Agency asked if MKKX had made inquiries to other providers of continence aids available through government-assisted programs.[136] MKKX stated that she had not. Further, that she did not want to ‘double up’ on a continence assessment she had undertaken some three years prior.[137] MKKX could not remember whether any incontinence supports were recommended for her on the basis of this assessment and no further relevant evidence has been put before the Tribunal.[138]
[136] Transcript, page 192 lines 25-42.
[137] Transcript, page 192 lines 42-44; page 91 line 41-44.
[138] Transcript, page 91 line 40; page 92 line 6.
In the absence of any clinical assessment and subsequent recommendation in regard to appropriate continence aids that MKKX may require I am unable to be satisfied that the continence aids MKKX requests are value for money pursuant to section 34(1)(c) of the NDIS Act. I am also not satisfied that continence aids for MKKX are not more appropriately funded or provided through other general systems of government-assisted programs that provide such supports.[139]
[139] Section 34(1)(f) NDIS Act.
Based on the evidence however I am not satisfied that the continence aids requested are a reasonable and necessary support pursuant to section 34(1) of the NDIS Act.
Is funding for ancillary CPAP items in the amount of $100 annually a reasonable and necessary support?
The Applicant is requesting various ancillary items related to her self-funded CPAP machine. These items include cords and nasal pieces at a value of $100 per annum.
MKKX’s evidence was that she had not considered other government departments or agencies as providers of these supports.[140]
[140] Transcript, page 218 lines 21-28.
In the absence of such an enquiry and evidence that the funding of this support is not provided by another service provider I am unable to be positively satisfied that this is a reasonable and necessary support for the purposes of section 34(1) of the NDIS Act.
Is funding for the purchase and installation of lever taps in MKKX’s kitchen a reasonable and necessary support?
MKKX seeks funding for an amount of $1,378.80 for ‘Lever taps’ in her kitchen. In this regard MKKX relies on the recommendation of Ms Trudgian[141] and the quotation of AusNorth.[142]
Ms Trudgian
[141] A5, page 34; A13, page 76; A28, page 160; A50, page 267.
[142] A46: Ausnorth Quote for Lever taps dated 24 October 2023.
In oral evidence Ms Trudguan confirmed her clinical opinion that her recommendation for Lever taps was on the basis to preserve MKKX’s joints from the pain and, at times subluxations of her wrist when performing a ‘twisting’ action.[143]
[143] Transcript, page 165 lines 18-21.
Ms Trudgian stated in her schedule that lever taps will ‘aid safety and independence with personal hygiene as MKKX cannot always twist the existing taps in either the bathroom or the kitchen sink.’[144] Ms Trudgian considered that alternatives had been trialled including tap turners and grippers including non-slip mat and grippy gloves, however that these were unsuccessful.
[144] A50, page 267.
Prior to obtaining a quote Ms Trudgian considered that a Lever tap could cost ‘up to $650 per sink, not including installation.’[145]
[145] A28, page 160.
The quotation provided by Ausnorth Building and Construction specifies that the sum of $1,378.80 is for the purchase and installation of a single ‘Essente Swivel Pull-out Sink Mixer’ tap.
At the hearing Ms Trudgian confirmed that no inquires for an alternative quote were made, although that she would like to make such further inquiries on the basis that the quotation provided ‘does seem like a lot of money.’[146]
[146] Transcript, page 166 lines 15-21.
Further, that lower cost alternatives had not in fact been investigated although that they ‘definitely’ could be trialled. In this regard Ms Trudgian referred to a ‘tap turner’, a removable handle that MKKX could fit onto any tap as needed and ‘use it like a lever’.[147] Ms Trudgian stated ‘we can trial the low-risk option of the tap turner and then do more research.’[148]
[147] Transcript, page 165 lines 34-41.
[148] Transcript, page 188 lines 31-45.
In closing submissions the Agency referred to Ms Trudgian’s evidence in respect of this support. The Agency’s submission was that in the circumstances where lower cost alternatives have not been trialled or considered, the Tribunal cannot be positively satisfied that sections 34(1)(c) and (d) of the NDIS Act are met.
I accept Ms Trudgian’s evidence that there may be other options by way of alternatives which may represent better value for money that have not yet been explored. On this basis I cannot be satisfied that the requested support represents value for money in accordance with the mandatory requirement of section 34(1)(c) of the NDIS Act.
I am not satisfied that the purchase and installation of lever taps in MKKX’s kitchen is a reasonable and necessary support and satisfies 34(1) of the NDIS Act.
Is an exercise bike a reasonable and necessary support?
MKKX seeks funding for a stationary, recumbent exercise bicycle on the basis that it is a reasonable and necessary support. In respect of this support MKKX relies on the recommendation of Ms Trudgian and Dr Michael Lutz, orthopaedic surgeon.
Ms Trudgian stated that exercise equipment ‘such as a stationary bike’ will ‘help with reconditioning and exercise at home; using a stationary recumbent bike places less strain on MKKX’s joints, less strain on her back and aims to assist POTS symptoms’.[149]
[149] A13, page 75.; A28, page 159.
In making an estimation for the price of her recommendation of exercise equipment Ms Trudgian referred to a ‘RC-81 Recumbent Nike with Ergonomic Seat and Magnetic flywheel’ supplied through Lifespan fitness. The cost of this exercise bike is $659.30 which is comprised of $499 for the purchase of the bike, $49.99 for a bike cover and shipping costs.
In her report Ms Trudgian refers to an article titled ‘Exercise and movement for adults with hypermobile Ehlers-Danlos syndrome and hypermobility spectrum disorders’.[150] This article identifies the benefit of exercise for person affected by EDS. In doing so it also identifies a range of exercises for person affected by EDS. These include aerobic exercise in the form of walking, swimming, exercise bikes, treadmills and cross trainers and the need for smaller time frames for exercise sessions. The article recognises the limitations of the ability to exercise of those affected by EDS. It provides some adaptations in relation to exercise such as exercising in smaller time frames as opposed to lengthy exercise sessions.
[150] A13, page 76; A28, page 160.
MKKX also relies upon a handwritten letter of Dr Lutz which states, in entirety:[151]
‘MKKX has multiple joint pathology and needs low stress exercise as ongoing treatment. An exercise bike will be beneficial for MKKX’.
[151] A45: Letter of Dr Michael Lutz dated 24 August 2023.
In her oral evidence MKKX explained that several years ago she had an exercise bike. She no longer has this exercise bike and further, that it was in any event unsuitable for her ‘physicality’ as it was not a recumbent exercise bike.[152]
[152] Transcript page 90 lines 35-37.
In her report of 18 November 2021 Ms Trudgian referred to an exercise bike that MKKX then possessed but was ‘unable to use safely’.[153]
[153] T Documents, T9, page 140.
The Agency submits that the Tribunal cannot be satisfied on the evidence that an exercise bike is a reasonable and necessary support. The Agency submits that an exercise bike cannot be considered to be:
· Effective and beneficial for the purposes of section 34(1)(d) of the NDIS Act on the basis that ‘there is no accompanying clinical reasons as to how the recumbent bike would be effective and beneficial’ for MKKX;
· Value for money for the purposes of section 34(1)(c) of the NDIS Act as there is no evidence as to whether any lower cost alternatives have been considered that would be successful in achieving the same or similar outcomes; and
· That in any event an exercise bike duplicates other supports and therefore funding is prevented by Rule 5.1(c) of the Support Rules. In this regard the Agency referred to MKKX’s oral evidence which suggested that MKKX performs home based ‘isometric’ exercises at the instruction of her physiotherapist. Additionally, that she engages in hydrotherapy which assists in strength and mobility. The Agency submits that an exercise bike would be intended to achieve the same or similar functional goals as current capacity building supports provided for MKKX.
I do not accept that the requirements of section 34(1)(c) are not met on the basis that alternatives means of support have not been ‘fully investigated’.[154] Nor do I accept in this matter that MKKX bears an onus of proof. Depending on the nature of the decision to be made the Tribunal is required to make the correct or preferable decision after considering all of the evidence before it.[155]
[154] Mazy and National Disability Insurance Agency (NDIS) [2018] AATA 3099 at [57].
[155] Ibid at [58].
My concerns relate to whether a recumbent stationary exercise bike would be effective and beneficial for MKKX pursuant to section 34(1)(d) of the NDIS Act. In considering section 34(1)(d) of this NDIS Act I am required to consider Rule 3.3 of the Support Rules which provide as follows:
In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
I note the following in respect of the evidence:
·Ms Trudgian recommends exercise equipment for MKKX ‘such as an exercise bike’. This recommendation is made despite never having assessed or observed MKKX using such equipment which includes an assessment of any relevant safety issues; and
·Dr Lutz’s report is not persuasive. He recommends low stress exercise for MKKX. He does not specifically recommend an exercise bike but rather stated that it would be ‘beneficial’.
Based on this evidence I am not positively satisfied that funding for a stationary, recumbent exercise bicycle is a reasonable and necessary support and satisfies 34(1) of the NDIS Act.
Out-of-pocket psychology expenses
MKKX seeks reimbursement of her out-of-pocket expenses for psychology sessions totalling $272.70.
In her plan commencing 16 January 2023 MKKX was approved six hours for psychology support. The Agency later agreed to provide funding for a total of 50 hours for psychology in the SOPS commencing 10 October 2023.
Beyond the six hours funded MKKX accessed a further six psychologist sessions during the period of 16 January 2023 to 10 October 2023. In an email to the Agency dated 23 October 2023 MKKX provided receipts of the six additional hours she accessed at $136.35 per hour as well as four private health fund rebates each in the sum of $109.08.[156]
[156] A38: Email of the Applicant dated 23 October 2023.
MKKX seeks reimbursement for the full cost of two sessions unclaimed on her private health fund and the remaining cost after rebate for four sessions claimed through her fund.
The Agency submits that the out-of-pocket psychology expenses do not meet section 34(1)(f) of the NDIS Act in MKKX’s circumstances. The Agency also submits that the scheme is not intended to supplement any shortfalls of the private or public health systems.
I accept the Agency’s submission. Reimbursement of MKKK’s out-of-pocket expenses for psychology sessions is not a reasonable and necessary support.
Plan duration
MKKX seeks a 36-month on the basis that it is appropriate in her circumstances.[157] She submits that a 12-month plan is not appropriate on the basis that she will have difficulty returning to any form of work with the time and energy it takes to gain reports for review/ reassessment if a plan lasts 12 months.
[157] Email of MKKX to the Tribunal dated 1 March 2024.
Pursuant to section 33(2)(c) of the NDIS Act, it is open to the Tribunal to decide on a duration of MKKX’s plan. The Agency submits that due to the fluctuating nature of the MKKX’s condition, and to ensure sustainability of the scheme a 12-month plan duration is appropriate.[158]
[158] Respondent’s Closing Submissions at [42].
The Agency also submits that the circumstances described in section 44 of the NDIS Act, which excludes the self-management of funding in certain circumstances, are not relevant to MKKX and therefore the funding of supports may remain self-managed for the purposes of section 33(2)(d) of the NDIS Act.[159]
[159] Ibid at [43].
The Agency’s submission is reasonable and proper. It is particularly persuasive in the context of the dynamic nature of MKKK’s conditions.
I am satisfied that a 12-month plan is appropriate for MKKK.
Financial sustainability
In the course of this review Mr Buckley made the following submission on behalf of MKKX:[160]
‘The Member expressed concern about Scheme sustainability, an issue that is beyond the Tribunal’s responsibilities.’
[160] Advocate’s Closing Submission dated 25 March 2024.
Mr Buckley is not a legal advocate and therefore can be excused for the error in his submission. In this regard I refer to section 3(3) of the NDIS Act which provides as follows:
Objects of Act
……..
In giving effect to the objects of the Act, regard is to be had to:
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme
…….
DECISION
Pursuant to section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with a direction that:
·Within 28 days of this decision MKKX’s statement of participant supports specifies the following supports as reasonable and necessary:
(a)Wrist, ankle, knee, sacrum and shoulder splints/braces;
(b)2xu compression tights;
(c)Front closure arm compression ¾ sleeve top;
(d)Hypermobility crutches;
(e)Electric heating therapy pad;
(f)Grip Pain Relief Therapeutic Heat Glove;
(g)Bodicheck Premium Shoulder and Neck Hot/Cold Pack Reusable Nylon with Towel Bag;
(h)Opal Hot/Cold Pearl Gel Pack – Large;
(i)Swivel cushion for car;
(j)Seat belt easy-reacher;
(k)Bottom-wiper;
(l)Long-handled toe washer;
(m)Long-handled bath sponge;
(n)Hoka orthopaedic shoes, Hydrotherapy shoes and orthotics in a total amount of $855;
(o)Home oxygen concentrator in a one-off amount of $1,900.00 plus $29.15 for accessories;
(p)A fixed air-conditioner installed in MKKX’s living room; and
(q)Two pairs of flat knit compression stockings;
·The date by which the Agency must reassess the MKKX’s plan is to be 12 months after the date on which the supports in (a)-(q) above are included in MKKX’s statement of participant supports;
·All other supports in MKKX’s existing statement of participant supports are to be replicated pro-rata from the date on which the supports specified above are included in the MKKX’s statement of participant supports until the reassessment date; and
·The management of funding for reasonable and necessary supports is to remain the same as the management for those supports in the statement of participant supports dated 10 October 2023.
I certify that the preceding 195 (one hundred and ninety-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins.
.........................[SGD]........................
Associate
19 April 2024
Dates of hearing:
14, 15 and 16 February 2024
Applicant:
MKKX
Advocate for the Applicant:
Mr Bob Buckley (lay advocate, Autism Aspergers Advocacy Australia)
Solicitor for the Respondent:
Ms Jasmine Forsyth
Special Counsel, Moray & Agnew
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