MKKX and National Disability Insurance Agency

Case [2024] AATA 805

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 2013

Cases

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 286

Secondary Materials

NDIS – Operational Guidelines – Assistive technology, as of 20 December 2023
NDIS – Operational Guidelines –…

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Details
AGLC
MKKX and National Disability Insurance Agency [2024] AATA 805
Case
[2024] AATA 805
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by MKKX against a decision of the National Disability Insurance Agency (NDIA) regarding the provision of reasonable and necessary supports under the National Disability Insurance Scheme. The dispute involved a range of items and services MKKX sought funding for, including a Thermomix, a fixed air-conditioning unit, minor home modifications, various assistive technology items such as compression garments and a recumbent bicycle, CPAP accessories, and reimbursement for out-of-pocket psychology expenses. The case was heard by J Collins SM.

The primary legal issues before the court were to determine which of the requested supports were reasonable and necessary in accordance with section 34 of the National Disability Insurance Scheme Act 2013 (Cth), and to decide on the appropriate duration for MKKX's NDIS plan. The court was required to consider how each support would assist MKKX in achieving her goals, facilitate her daily life, and contribute to her independence and well-being, while also having regard to the financial sustainability of the Scheme.

The court reasoned that while many of the supports sought by MKKX were indeed reasonable and necessary, including a range of splints, braces, compression garments, mobility aids, therapeutic devices, orthopaedic footwear, a home oxygen concentrator, and a fixed air-conditioner, the NDIA's concession on these items was accepted. However, the court found that reimbursement for out-of-pocket psychology expenses was not a reasonable and necessary support. Regarding the plan duration, the court accepted the NDIA's submission that a 12-month plan was appropriate due to the fluctuating nature of MKKX's condition, ensuring the sustainability of the scheme. The court also noted the importance of considering the financial sustainability of the NDIS as an object of the Act.

Consequently, the decision under review was set aside and remitted to the NDIA for reconsideration. The NDIA was directed to include specific listed supports as reasonable and necessary within 28 days, to set the plan reassessment date at 12 months from the inclusion of these supports, to replicate other existing supports pro-rata until the reassessment date, and to maintain the existing funding management arrangements.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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; andoLever 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; andoAncillary items for CPAP including cords and nasal pieces - $100 annually; ·Reimbursement of out-of-pocket psychology expenses - $272.70.

Ratio Decidendi

Legal Principle Established

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.