MPPZ and National Disability Insurance Agency

[2024] AATA 3563

MPPZ and National Disability Insurance Agency [2024] AATA 3563 (9 October 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2021/7818

Re:MPPZ  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Deputy President Mischin

Date:9 October 2024

Place:Perth

The decision under review, being the decision of the National Disability Insurance Agency made on 30 September 2021 under section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), as remade on 9 January 2024 following reassessment pursuant to section 48 of the NDIS Act), is set aside and the matter is remitted for reconsideration in accordance with directions that:

(a)The Applicant’s statement of participant supports specifies that the reasonable and necessary supports include:

(i)Four hours of individual support per week for Assistance with Personal Domestic Activities;

(ii)16 hours of individual support per week for Access Community Social and Recreational Activities – Standard – Weekday Daytime rate;

(iii)Four hours per month of yard maintenance;

(iv)Two hours per week of house cleaning;

(v)$1,000 per annum for low-cost assistive technology – personal mobility;

(vi)$1,000 per annum for disability-related health consumables;

(vii)$1,500 per annum for low-cost assistive technology for prosthetics and orthotics;

(viii)Preparation and delivery of meals as per quote;

(ix)Transport funding (Level 3), being $3,456 per annum;

(x)Support coordination funding (80 hours per years, Level 2);

(xi)Specialist support coordination (40 hours per year, Level 3);

(xii)26 hours per year of physiotherapy;

(xiii)26 hours per year of exercise physiology including, subject to quotes, gym membership for such sessions;

(xiv)26 hours per year of occupational therapy;

(xv)20 hours for an Assistive Technology assessment report prepared by an occupational therapist with experience working with assistance animals and mental health for the request for a PTSD assistance dog;

(xvi)12 hours of podiatry;

(xvii)12 hours of specialist sex therapy/counselling (not sex worker services); and

(xviii)Six hours for a dietician assessment and recommendations.

(b)All other supports in the Applicant’s existing statement of participant supports, excepting any one-off assistive technology supports already used, are to be replicated from the date on which the supports specified above are included in the Applicant's statement of participant supports until the reassessment date.

(c)The management of funding for reasonable and necessary supports under the Applicant’s plan is to remain the same as the management of funding for those supports as specified in the statement of participant supports dated 9 January 2024.

(d)The date by which the Respondent must reassess the Applicant’s plan is to be 12 months after the date on which the supports in paragraph (a) above are included in the Applicant’s statement of participant supports.

..................................[SGD]...................................

The Hon. Michael Mischin, Deputy President

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – Ehlers-Danlos Syndrome, spinal cord injury, and psychosocial disorders, being Post Traumatic Stress Disorder, anxiety and depression – reasonable and necessary supports – section 34 National Disability Insurance Scheme Act 2013 (Cth) – requests for gym membership, assistive technology, sex worker, equine/hippotherapy, PTSD assistance dog, overseas travel and accommodation to access treatment – Respondent agrees to certain supports as reasonable and necessary – decision under review set aside and remitted for reconsideration to include agreed supports

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 42D, 43(1)(c)
National Disability Insurance Scheme Act 2023 (Cth) ss 3, 3(3)(b), 4, 4(17), 9, 31, 33, 34, 34(2), 35(2), 99(1), 100(6)

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) rr 1.1, 1.2, 1.3, 3.1, 3.2, 3.3, 3.4, 3.5, 5.1, 5.2, 7.4, 7.5

CASES

DGJJ and National Disability Insurance Agency [2018] AATA 1263
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
King and National Disability insurance Agency [2017] AATA 643
M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Madelaine and National Disability Insurance Agency [2019] AATA 4025
McGarrigle v National Disability Insurance Agency [2017] FCA 308
McLaughlin and National Disability Insurance Agency [2021] AATA 496
NationalDisabilityInsuranceAgencyvWRMF [2020] FCAFC 79
VZLK and National Disability Insurance Agency [2024] AATA 3227

ZCPY and National Disability Insurance Agency [2017] AATA 3052

SECONDARY MATERIALS

NDIS Assistance animals including dog guides (operational guideline dated 20 June 2022)

NDIS Assistive Technology (equipment, technology and devices) (operational guideline dated 24 October 2023)  

REASONS FOR DECISION

Deputy President the Hon. Michael Mischin

9 October 2024

BACKGROUND AND ISSUES

1. The Applicant is a 50-year-old female diagnosed with Ehlers-Danlos Syndrome, a permanent spinal cord injury sustained in a motor vehicle crash in 1994,[1] and also psychosocial disorders being Post Traumatic Stress Disorder (PTSD), anxiety and depression. She lives independently at a semi-rural property on the eastern outskirts of Perth.

   [1] It appears that there was a further motor vehicle accident in May 2016: Exhibit R2 Document ST19(b), Occupational Therapy Report, Ms Emma Simms dated 9 August 2017 page 55.

2. The Applicant is a participant in the National Disability Insurance Scheme (NDIS or Scheme) established under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).

3. The Applicant’s application for access to the Scheme, dated 5 June 2015, listed her ‘Primary disability’ as cervical disc disease C4/5/6; fibromyalgia; chronic fatigue syndrome; L5/S1 disc herniation; chronic pain; and referred nerve pain into right shoulder and arm, permanent and severe. She listed her ‘other disabilities’ as complex PTSD; severe depression; anxiety; torn ligaments in right ankle; regional pain syndrome; sciatica in right hip; pain from L5/S1 disc bulge; temporomandibular joint dysfunction; recent pulmonary embolism; and recent pre-cancer cells on her cervix.[2]

   [2] Exhibit R2 ST8, Access Request Form dated 5 June 2015 page 24.

4. The Applicant filed an application on 10 October 2021 to review a decision made by the National Disability Insurance Agency (Respondent or Agency) on 30 September 2021 pursuant to section 100(6) of the NDIS Act.

5. It is unnecessary to traverse the history of the review. It suffices to say that the Applicant’s case has narrowed over time, with the Respondent agreeing to fund certain contested supports after being provided with additional information. In December 2023 the Tribunal remitted the application to the Respondent for reconsideration. The Agency subsequently undertook a reassessment of the Applicant’s plan pursuant to section 48 of the NDIS Act and a new Statement of Participant Supports (SOPS) was approved on 9 January 2024.

6. Following the receipt of additional evidence provided by the Applicant on 16 April 2024 via the Applicant’s then advocate, the Respondent filed a document titled ‘Respondent’s Reply’ dated 7 May 2024, in which it accepted that that the Applicant was entitled to a number of additional supports.[3] The Respondent advised that, with one exception to do with gym membership, the supports accorded with the most recent Occupational Therapy Functional Capacity Assessment Report of occupational therapist Camille Connors dated 14 April 2024.[4]

   [3] Respondent’s Reply dated 7 May 2024 at [6].

   [4] Respondent’s Reply dated 7 May 2024; Exhibit R3 Document ST64(a) pages 536-558.

7. The Applicant’s case can be distilled down to whether her Statement of Participant Supports ought to include:[5]

   (a)Gym membership;

   (b)Funding for several items of what the Applicant considers to be assistive technology;

   (c)Sex worker services;

   (d)Equine or hippotherapy; and

   (e)Funding for the acquisition, training and maintenance of an assistance dog.

   [5] Transcript 2 August 2024 pages 20-21.

8. The Applicant advised at the commencement of the first day of the resumed substantive hearing that she was also seeking funding for travel, accommodation, and a support worker to accompany her, to receive medical treatment for Ehlers-Danlos Syndrome from a practitioner in the United States of America.[6]

   [6] Transcript 2 August 2024 pages 20-21, 37.

   THE HEARING AND AVAILABLE EVIDENCE

9. The application was heard by the Tribunal over five days, on 20 to 22 November 2023 and 2 and 7 August 2024, although there were lengthy interlocutory and directions hearings on 21 September 2022, 4 July 2023, 21 December 2023 and 26 March 2024, the latter two with a view to attempting to ensure that the matter was ready for further substantive hearing.

10. The Tribunal had before it, prepared by the Respondent:

    (a)Exhibit R1: the ‘T-Documents’ filed by the Respondent pursuant to its obligations under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act),[7] comprised of extracts of the NDIS Act,[8] Rules,[9] and Operational Guidelines,[10] and the application for review and a variety of correspondence and reports from both the Applicant and the Respondent (273 pages of documents);

    (b)Exhibit R2: a Supplementary Tender Bundle prepared by the Respondent and including documents filed in respect of an earlier application for review by the Tribunal settled in 2019, and Operational Guidelines (498 pages);[11] and

    (c)Exhibit R3: a Further Supplementary Tender Bundle comprised of some Tribunal documents and various reports and correspondence from both the Applicant and Respondent, including the most recent Statement of Participant Supports commencing 9 January 2024 (120 pages).[12]

    [7] Exhibit R1 T-Documents T1 to T20, Documents 2.1 to 2.8, and Documents 3.1 to 3.10, excepting T1B and pages 263-265.

    [8] Exhibit R1 T-Documents T10 pages 246-248.

    [9] Exhibit R1 T-Documents T11 pages 249-263.

    [10] Exhibit R1 T-Documents T12 pages 264-337 and T13 pages 338-347.

    [11] Exhibit R2 Documents ST1 to ST58; Transcript 2 August 2024 page 35.

    [12] Exhibit R3 Documents ST59 to ST71; Transcript 2 August 2024 page 36.

11. The Applicant presented some further documents during the hearing on 2 and 7 August 2024 which were received as Exhibits A2 to A7. These included a variety of medical documents and correspondence, and invoices that the Applicant was seeking to have reimbursed.[13]

    [13] Exhibit A2, Transcript 7 August 2024 page 29; Exhibit A3, Transcript 7 August 2024 page 7; Exhibit A4, Transcript 7 August 2024 page 29; Exhibit A5, Transcript 7 August 2024 18; Exhibit A6, Transcript 7 August 2024 page 19; Exhibit A7, Transcript 7 August 2024 page 23. A letter dated 24 March 2024 written by the Applicant’s support coordinator and handed up at the hearing, outlining some ‘matters of importance’ that Applicant wanted addressed; was marked and remained as MFI A1; Exhibit R3 Document ST63 pages 532-533.

12. The Applicant gave evidence and was cross-examined. Otherwise, no witnesses were called by either party.

13. The Tribunal also had the benefit of written submissions from the Respondent in the form of an updated Statement of Facts, Issues and Contentions dated 8 December 2023. The Applicant did not file submissions, but the substance of her contentions was extracted during the course of a hearing on 21 November 2023, when she was taken through and responded to the Respondent’s then current Statement of Facts, Issues and Contentions dated 28 June 2023, paragraph by paragraph. The ‘updated’ Statement filed by the Respondent was drafted in the light of the Applicant’s response at the November hearing. The Respondent made brief closing submissions at the conclusion of the hearing on 7 August 2024.[14] The Applicant also made some oral closing remarks.[15]

    [14] Transcript 7 August 2024 pages 66-70.

    [15] Transcript 7 August 2024 pages 70-74.

14. I have considered the relevant factual and expert evidence before the Tribunal and refer to parts of the same in these reasons. 

15. As the Applicant was not learned in the law and processes of a review, the Tribunal allowed her considerable latitude in the presentation of her case, as did counsel for the Respondent.

    LEGISLATIVE FRAMEWORK

16. I have had regard to the objects and general principles informing the application of the NDIS Act and National Disability Insurance Scheme,[16] including the requirement to have regard to the need to ensure the financial sustainability of the Scheme.[17]

    [16] Section 3 and 4 of the NDIS Act.

    [17] Section 3(3)(b) and section 4(17).

17. Section 31 of the NDIS Act sets out the principles relating to plans.

18. Section 33 of the NDIS Act prescribes the matters that must be included in a participant’s plan. Section 33(5) requires the CEO of the Respondent[18], inter alia, to ‘be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided’.

    [18] Chief Executive Officer of the Agency: section 9 of the NDIS Act.

19. Section 34 of the NDIS Act deals with ‘reasonable and necessary supports’, including the criteria of which the CEO must be satisfied with respect to the provision or funding of a support, and states as follows:

    (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 National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

    (i)as part of a universal service obligation; or

    (ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

    (2)The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).

20. Section 35 of the NDIS Act empowers the making of rules regarding statements of participant supports, materially:

    (1)The National Disability Insurance Scheme rules may make provision in connection with the funding or provision of reasonable and necessary supports or general supports, including but not limited to prescribing:

    (a)methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding, the reasonable and necessary supports or general supports that will be funded or provided under the National Disability Insurance Scheme; and

    (b)reasonable and necessary supports or general supports that will not be funded or provided under the National Disability Insurance Scheme; and

    (c)reasonable and necessary supports or general supports that will or will not be funded or provided under the National Disability Insurance Scheme for prescribed participants.

    (2)The National Disability Insurance Scheme rules referred to in subsection (1) may relate to the manner in which supports are to be funded or provided and by whom supports are to be provided.

    …

21. The term ‘reasonable and necessary’ is not defined in the NDIS Act. It is a composite phrase, each limb of which must be given work to do. As pointed out by Mortimer J (as her Honour then was) in McGarrigle v National Disability Insurance Agency (McGarrigle):[19] 

    Whether a support is ‘reasonable’ requires a different assessment to whether a support is ‘necessary’. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word ‘reasonable’ would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase ‘reasonable and necessary supports’.

    [19] [2017] FCA 308 at [91].

22. The Full Court of the Federal Court in National Disability Insurance Agency v WRMF (WRMF) observed that the phrase ‘reasonable and necessary’:[20]

    … 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.

    [20] [2020] FCAFC 79 at [151].

23. The determination of whether a support is ‘reasonable and necessary’ for a particular participant must be made based on probative evidence as part of a fact-intensive, highly individualised exercise.[21]

    [21] McGarrigle at [93]; WRMF at [152].

24. Legislative rules have been made pursuant to sections 34(2) and 35(2), prescribing that to which a decision-maker must have regard in deciding whether they are satisfied that the criteria under section 34(1) have been met in respect of a requested support. In this case, the relevant rules to which the Tribunal has been directed are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Supports Rules).[22]

    [22] Exhibit R1 Document T19 pages 93-107.

25. The Supports Rules materially state as follows:[23]

    [23] Exhibit R1 Document T19 pages 94.

    1.1These Rules are about assessment and determination of the reasonable and necessary supports that will be funded and the general supports that will be provided for participants under the NDIS.

    1.2The Act sets out a number of objects for the NDIS. The objects that are particularly relevant to these Rules are the following:

    (a)supporting the independence and social and economic participation of people with disability;

    (b)providing reasonable and necessary supports, including early intervention supports, for participants in the NDIS launch;

    (c)enabling people with disability to exercise choice and control in pursuit of their goals and the planning and delivery of their supports.

    1.3In giving effect to these objects, regard is to be had to the need to ensure the financial sustainability of the NDIS.

26. Part 3 of the Supports Rules informs the CEO, in greater detail than section 34 of the NDIS Act, of matters to which the CEO is to have regard in assessing proposed supports, relevantly:[24]

    [24] Exhibit R1 Document T19 pages 96-99.

    Value for money

    3.1In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:

    (a)whether there are comparable supports which would achieve the same outcome at a substantially lower cost;

    (b)whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;

    (c)whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);

    (d)for supports that involve the provision of equipment or modifications:

    (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

    3.2In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:

    (a)published and refereed literature and any consensus of expert opinion;

    (b)the lived experience of the participant or their carers; or

    (c)anything the Agency has learnt through delivery of the NDIS.

    3.3In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.

    Reasonable family, carer and other support

    3.4In 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;

    …

    (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

    3.5Schedule 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).

    [original emphasis]

1. Part 5 of the Supports Rules prescribes ‘General criteria for supports, and supports that will not be funded or provided’, relevantly:[25]

   [25] Exhibit R1 Document T19 page 100.

   General criteria for supports

   5.1A support will not be provided or funded under the NDIS if:

   (a)it is likely to cause harm to the participant or pose a risk to others; or

   (b)it is not related to the participant’s disability; or

   (c)it duplicates other supports delivered under alternative funding through the NDIS; or

   (d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.

   5.2The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):

   (a)additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;

   (b)costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.

2. Schedule 1 of the Supports Rules sets out ‘Considerations relating to whether supports are most appropriately funded through the NDIS’.[26] It includes:

   [26] Exhibit R1 Document T19 page 102.

   Health (excluding mental health)

   7.4The NDIS will be responsible for supports related to a person’s ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment.

   7.5The NDIS will not be responsible for:

   (a)the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions; or

   (b)other activities that aim to improve the health status of Australians, including general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post-acute services), preventive health, care in public and private hospitals and pharmaceuticals or other universal entitlements; or

   (c)funding time-limited, goal-oriented services and therapies:

   (i)where the predominant purpose is treatment directly related to the person’s health status; or

   (ii)provided after a recent medical or surgical event, with the aim of improving the person’s functional status, including rehabilitation or post-acute care; or

   (d)palliative care.

   [original emphasis]

3. The NDIS Act and its Rules are supplemented by operational guidelines. The operational guidelines represent government policy and, to the extent that they are consistent with the relevant legislation, should be applied by the Tribunal unless here is a sound reason not to do so.[27]

   [27] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at 54; ZCPY and National Disability Insurance Agency [2017] AATA 3052 at [25]; DGJJ and National Disability Insurance Agency [2018] AATA 1263 at [19]; Madelaine and National Disability Insurance Agency [2019] AATA 4025 at [9].

4. The relevant operational guidelines at the time the decision under review was made, and to which the Tribunal refers, are the:

   (a)NDIS Assistance animals including dog guides (guideline dated 20 June 2022) (Assistance Animals Guideline);[28] and

   (b)NDIS Assistive Technology (equipment, technology and devices) (guideline dated 24 October 2023) (AT Guideline).[29]

   [28] Exhibit R2 ST58 pages 418-453.

   [29] Exhibit R2 ST58 pages 393-417.

   CONSIDERATION

5. I shall consider each support understood to be sought by the Applicant, dealing first with the recent request for overseas travel and accommodation to receive medial treatment.

   Expenses to access overseas Ehlers-Danlos treatment

6. The Applicant stated that she became a participant of the Scheme in 2015 based on a permanent spinal cord injury sustained following a motor vehicle crash. She subsequently informed the Respondent of her Ehlers-Danlos condition, although when is unclear.[30] Ehlers-Danlos Syndrome is, essentially, an inherited condition resulting in degeneration of the connective tissues within the body including the muscular-skeletal system and internal organs. Apart from the Applicant’s explanation of Ehler-Danlos and its impact on her, and also references to it in reports before the Tribunal from allied health practitioners, the medical evidence before the Tribunal is sparce. 

   [30] The first mention in the reports before the Tribunal of Ehlers-Danlos Syndrome was in a report of Exercise Physiologist Greta Edwards of Body Biometrics dated 23 September 2021; Exhibit R1 Document T11 pages 40-42 at [42]. The Applicant’s NDIS Plan issued 30 September 2021 mentions a short-term goal of travelling to the US ‘to seek further treatment from Dr Forest Tennant’, but no mention of Ehlers-Danlos; Exhibit R1 Document T1A 4-19 at [11].

7. The Tribunal had before it a letter of Dr Forest Tennant dated 14 March 2020 of the ‘Tennant Foundation, Arachnoiditis Research & Education Project’.[31] Dr Tennant is a researcher of pain management the Applicant visited when she was in the United States.

   [31] Exhibit A3(c), letter from Tennant Foundation Arachnoiditis Research and Education Project addressed to Ms Mary McShane.  

8. Dr Tennant’s letter was written to a Genetic Counsellor, forwarded in an email under the heading ‘Re: MPPZ, our diagnosis’. In it, Dr Tennant advised that he and his colleague, a Dr Martin Porcelli, saw the Applicant in September 2019 and received from her ‘a long history of multi-system maladies that began at a young age (before 30)’. It stated that a car crash at the age of 20 triggered many of the Applicant’s symptoms. Dr Tenant further stated that he suspected a genetic rather than an autoimmune disorder. In short, he believed that the Applicant had a severe form of Ehlers-Danlos Syndrome and was deteriorating rapidly at a rate that would bring an early death. He recommended attempting what he described as ‘anabolic therapy’, which included ‘nutritional, physical, and hormonal agents to hopefully rebuild tissue that has deteriorated as well as prevent other tissues from degeneration’.[32]

   [32] Exhibit A3(c); see also Exhibit R1 T-Documents T13 Occupational Therapy NDIS Functional Capacity Assessment of Ms Catherine Parrott, dated 10 September 2021 page 45, at [46].

9. The Applicant also provided a copy of an email she sent to a Dr Chui on 28 December 2019. The copy provided to the Tribunal purported to be forwarding an email from Dr Tennant to her of 24 December 2019, commencing ‘Be clearly advised that our approach to genetic connectie [sic connective] tissue disease and adhesive arachnoiditis is new and cannot be guaranteed’. He recommends a course of treatment with a potent anabolic agent, nandrolone, although others are also mentioned.[33]

   [33] Exhibit A3(b).

10. The Applicant contended that this treatment was not available in Australia and no research was being done on Ehlers-Danlos. She complained that Ehlers-Danlos had not been included as a primary disability on her NDIS Plan. The expenses, she said, that she was incurring in accessing relevant treatment were not being reimbursed by the Respondent.[34]

    [34] Transcript 7 August 2024 pages 9-10.

11. A report from occupational therapist Ms Camille Connors of ‘Bendy Occupational Therapy’ dated 25 March 2024 summarises the Applicant’s condition as follows:[35]

    [The Applicant] experiences severely reduced functional capacity as a result of a complex presentation of diagnosis related to mental health and physical disability. [The Applicant] experiences difficulties as a result of chronic pain, joint dysfunction, and chronic fatigue as a result of Ehlers Danlos Syndrome (EDS) and associated Orthostatic Intolerance and Fibromyalgia. [The Applicant] experiences further physical limitations following a spinal injury sustained in an MVA [Motor Vehicle Accident] in 1994. ... [The Applicant’s] EDS contributes to [her] upper and lower limb weakness, bilateral foot and ankle instability, severe forefoot dysfunction, severely decreased balance with high fall risk, joint and muscle pain, and muscle weakness; all functionally limiting markers associated with the connective tissue disorder. [The Applicant's] symptomatic EDS presentation is further exacerbated by the spinal injury sustained in the aforementioned MVA. [The Applicant's] physical presentation is further impacted by a medical history of repetitive strain injury, inflammatory patterns, and joint dysfunction.

    [35] Exhibit R3 Document ST64(b) page 559.

12. The only treatment for it, it appears, is a course of nandrolone which is unavailable in Australia.

13. The Applicant advised that apart from Dr Tennant, she had been communicating with a Dr William Barnes in Australia. Dr Barnes, according to the Applicant, is a leading physician in Lyme disease and other autoimmune disorders in Western Australia. He is ‘not well versed’ in Ehlers-Danlos Syndrome but is supporting her to the extent he can.[36] The Tribunal does not have any information from Dr Barnes.

    [36] Transcript 7 August 2024 page 63; Dr Tennant said in his letter of 14 March 2020 that when he and Dr Porcelli saw the Applicant in September 2019, he was ‘just retiring from clinical practice and was turning it over to Dr Porcelli’: Exhibit A3(c).

14. The Applicant’s last contact with Dr Tennant was in November 2023 and her evidence was that Dr Tennant is retired.[37] She has had no contact with Dr Porcelli but advised that the latter would be treating her and Dr Tennant will be liaising with him.[38]

    [37] Transcript 7 August 2024 page 9.

    [38] Transcript 7 August 2024 page 64.

15. The Applicant contends that the Respondent has known of her condition since 2019, but it is not included in her Plan as a ‘primary disability’ as the Respondent ‘wanted more evidence’. Her primary disability has been ‘spinal cord injury’. It appears that the evidence the Applicant relies upon, which was presented to the Tribunal for the first time in this matter on 2 August 2024, was the letters of Dr Tennant which she had in her possession since they were written but had chosen not to produce because she wanted it ‘restricted’ and only to be shown to the Respondent but not retained.[39] Her reasons for this seem to be based on a concern that if the Respondent has this information on its file it will be disclosed to others: she complained that other material on the Respondent’s file had been passed to third parties sometime in the past.[40]

    [39] Transcript 7 August 2024 page 37; Exhibit A3(c).

    [40] Transcript 7 August 2024 page 37.

16. That as it may be, it remains the case that the Applicant has, for some four years, denied the Respondent evidence of a professional diagnosis of a condition that she considers that the Respondent should recognise but hasn’t, and for which she is seeking funding so that she may access treatment and what she considers to be necessary and reasonable supports.

17. As it happens, there is considerable reference to the Applicant’s Ehlers-Danlos Syndrome in the material before the Tribunal, and the fact of her living with it is not in dispute. Indeed, the Respondent emphatically rejected the proposition that it does not recognise or understand her Ehlers-Danlos Syndrome: it accepts that the Applicant has that condition and asserts that it is endeavouring to fund any reasonable and necessary supports for any disability arising from it.[41]

    [41] Transcript 7 August 2024 page 66.

18. It is the Applicant’s position that the NDIS Act provides that if she cannot receive treatment in Australia, ‘then the NDIS must fund that wherever you need it or require it’.[42] She produced several receipts for drugs for costs of diagnostic pathology services, and drugs and vitamin supplements purchased from supermarkets and pharmacies,[43] including from compounding chemists.[44]

    [42] Transcript 7 August 2024 pages 10-11.

    [43] Exhibit A5, Transcript 7 August 2024 pages 10-18; Exhibit A6, Transcript 7 August 2024 pages 18-19.

    [44] Exhibit A7, Transcript 7 August 2024 pages 20-23.

19. Rule 7.5(a) of the Supports Rules provides that the Scheme will not be responsible for ‘the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions’.

20. However, leaving aside the question of whether clinical treatment of her condition and the transport accommodations and pharmaceutical expenses associated with that are reasonable and necessary supports within the meaning of the NDIS Act that can be funded under the Scheme, there is insufficient evidence to enable me to be satisfied that what the Applicant is seeking is related to her disability pursuant to Rule 5.1(b). The belated evidence she has presented from Dr Tennant is now some four years old. To the extent that there is evidence of the treatment involved, there is nothing more recent to say that he or others are able or willing to provide it, its likely efficacy, or the costs involved other than the Applicant’s assertions to the effect that Dr Tennant and Dr Porcelli are waiting for her to come over. There is no evidence from Dr Barnes as to his diagnosis or what treatment he is allegedly administering.

21. The Applicant has supplied invoices for pathology services done at the request of Dr William Barnes, for which she seeks reimbursement.[45] Again, apart from the prohibition rules in 5.1(b) and 7.5(a) of the Supports Rules, there is no medical evidence to inform the Tribunal of the purpose for which the services were being sought. Nor is there medical evidence regarding the need for, or efficacy of, the pharmaceuticals and other compounds she is purchasing. Accordingly, I am not able to be satisfied on the available evidence that these are reasonable and necessary expenses for which the Respondent can and should be responsible for funding.

    [45] Exhibit A5(1), (2), (5), (6), (10-11); Exhibit A7(1).

    Gym membership

22. The Applicant testified that she can only tolerate low intensity exercise – Pilates – and seeks funding for a supervised ‘comprehensive exercise rehabilitation’.[46] She currently undertakes physiotherapy twice each week; shoulder rehabilitation twice a week; Pilates once each week; and has been advised that she requires gym work with weights once a week and horse riding to address spine curvature and also as an ‘emotional trauma relaxation exercise’.[47] To that end, the Applicant seeks from the Scheme funding for a gym membership so that she may access a specialised exercise program.[48] 

    [46] Transcript 7 August 2024 page 23.

    [47] Transcript 7 August 2024 pages 23-24.

    [48] Transcript 7 August 2024 page 33.

23. The Respondent contends that gym membership is a day-to-day expense ordinarily incurred by people undertaking exercise and therefore excluded by Rule 5.1(d) of the Supports Rules. The Respondent does not argue against the additional costs that might be incurred for dealing with the Applicant’s functional capacity and has agreed to physiotherapy and exercise physiology and occupational therapy supports.

24. The Applicant considers that gym membership is not day-to-day expense in her case because it is specific to the function and strengthening of her muscles and the engagement of muscles that aren’t working, guided by a professional trainer. She does not want to go to the gym, and does not like going to the gym, but has been told to do so to continue engaging her muscles so that they do not further decline and atrophy.[49] She relies on the report from an accredited exercise physiologist, Mr Robert Bullen.[50] The Tribunal also had before it reports from sports physiotherapist Ms Bryony McCrudden,[51] and occupational therapist Ms Camile Connors of Bendy Occupational Therapy dated 25 March 2024[52] and 14 April 2024.[53]

    [49] Transcript 7 August 2024 page 57.

    [50] Exhibit A4, letter from RE Exercise Physiology undated but said to have been prepared sometime pre-21 December 2023.

    [51] Exhibit R1 Document 2.8(e), letter from Perth Hills Physiotherapy dated 17 July 2023.

    [52] Exhibit R3 Document ST64(b) pages 559-565.

    [53] Exhibit R3 Document ST64(a) pages 536-558.

25. Ms McCrudden had, as at the date of her report, been managing the Applicant for three months. Her management up to then had consisted almost solely of strengthening exercises in the studio gym area. The Applicant attended two weekly one hour long one-on-one sessions, as one weekly session would be insufficient. Ms McCrudden advised that if the Applicant did not continue to work on her strength she would regress in pain and function. The Applicant needed to be supervised closely to ensure – in effect – that she was working to capacity but not aggravating her symptoms. Ms McCrudden concluded:[54]

    Our ideal management going forwards from here are to continue twice weekly one on one sessions for the next thee [sic three] months (lt takes at least 12 weeks to achieve noticeable strength gains in females). These are at a cost of $200 per session at present. That totals $4800. I would then like to try and change [the Applicant] to once weekly sessions with myself ($2400) and at least once weekly sessions with a trusted Exercise physiologist (Robert Bullen) who works nearby in one of the gyms in the hills. To take out a gym membership and do once weekly exercise physiology sessions for the remainder of the year will likely cost in the ball park of $2000. That works out to be roughly $10000 for the remainder of the year. Going forwards if we look at one supervised physio session a week, a yearly gym membership and one session with the exercise physiologist weekly I estimate costs will be about $17-20000 per year.

    This should however mean that [the Applicant] does not need as frequent hands-on treatment at the physio and will hopefully decrease her need for assistance devices in the future. It will also mean her pain is uch [sic much] more manageable. She is more mobile and can be a more active member of society.

    [54] Exhibit R1 Document 2.8(e) page 210.

26. Mr Bullen, in his undated letter headed ‘NDIS ASSESSMENT REPORT’, asserts that ‘We’ have identified that the Applicant ‘needs ongoing 1:1 attention from an Accredited Exercise Physiologist’.[55] He then sets out the reasons anything less than this would be appropriate for the Applicant. He concludes with a recommendation that ‘Re Exercise Physiology would recommend that she receives one on one Exercise physiologist sessions once a week in addition to her physiotherapy consultations’. This will ensure that the Applicant ‘continues to see the improvements in regular monitored exercise in order to improve her physical and mental health while also providing the opportunity to progress towards her goals’. He quotes for one one-hour session of ‘Individual Exercise Physiology’ per week for 52 weeks of the year, and one two-hour session of report writing once per Plan period.[56]  

    [55] Exhibit A4.

    [56] Exhibit A4.

27. Ms Connors asserts in her most recent report that physical exercise under a guidance of an exercise physiologist would be of benefit to the Applicant and asserts that funding for gym memberships has been found to be a reasonable and necessary support for participants in the past, citing King and National Disability Insurance Agency (King).[57]

    [57] Exhibit R3 Document ST64(a) page 555; King and National Disability insurance Agency [2017] AATA 643.

28. However, in that case the Agency had accepted responsibility for the Applicant’s gym membership, and the only issue before the Tribunal was the quantification of that cost. The question of whether the support fell within the terms of the Supports Rules was not considered.

1. As pointed out in the Tribunal decision of Deputy President Humphreys in McLaughlin and National Disability Insurance Agency (McLaughlin):[58]

   The cost of exercise is a day-to-day living expense borne by a substantial number of Australians. While some exercise may be undertaken at no cost (say, jogging and bushwalking) many other participatory forms of exercise necessarily entail payment to a provider or venue (say, Pilates, boot camps, swimming and tennis). Such costs fall within the term day-to-day living costs as used in rule 5.1(d) [of the Supports Rules]. As such, it is excluded as a reasonable and necessary support.

   [58] [2021] AATA 496 at [152].

2. In that case, Tribunal considered that:

   … the exception to this principle contained in rule 5.2 – that living costs incurred solely and directly as a result of a participant’s disability support needs may be funded – does not, in the Tribunal’s view, apply here. It is reasonable to expect that, but for her disability, Ms McLaughlin would engage in some form of exercise, and the cost of participation in a class or group would be at her own expense. There is therefore no additional cost incurred directly and solely because of her disability.[59]

   …

   The second element of her claim – consultation with an exercise physiologist – is another matter. Ms McLaughlin maintains that this cost is necessary to allow her to participate in a class, particularly given that some modifications will be necessary – arising, for example, from the likelihood that she will be seated during such classes. That view is supported by the evidence of Dr Flanagan.[60]

   [59] McLaughlin at [152].

   [60] McLaughlin at [155].

3. I agree that gym membership would ordinarily be a day-to-day living expense excluded by rule 5.1(d) of the Supports Rules. However, rule 5.2 provides that ‘day-to-day living costs referred to in paragraph 5.1(d)’ do not include supports ‘which may be funded under the NDIS if they relate to reasonable and necessary supports’, namely, if they are ‘additional living costs that are incurred by a participant solely and directly as a result of their disability support needs’[61] or ‘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’.[62] It is not, as in McLaughlin, a case of the Applicant asking the Tribunal to rely on only her opinion. In this case, the Tribunal has the evidence of those recommending the exercise regime, which it appears can only be carried out by a suitably qualified person in a suitably equipped environment.

   [61] Rule 5.2(a), Supports Rules.

   [62] Rule 5.2(b), Supports Rules.

4. The Respondent accepts that in addressing the Applicant’s functional capacity the costs of physiotherapy, exercise physiology, and occupational therapy are reasonable and necessary.[63] The evidence before the Tribunal points to the exercise physiology requiring, in addition to the cost of the therapy itself, membership of a gym where it can be undertaken. That, to me, is ancillary to the support and one which she would not otherwise incur. What is lacking is evidence of alternative venues so as to be able to consider ‘value for money’ pursuant to rule 3.1(e) of the Supports Rules. I propose to direct accordingly.

   [63] Transcript 7 August 2024 page 66; Respondent’s Reply dated 7 May 2024 at [6(m)], [6(n)], and [6(o)].

   Assistive technology

5. The Applicant has sought funding for several items of what she considers to be assistive technology equipment related to her disability.

6. The Respondent has already agreed that the Applicant should be funded to receive certain items of assistive technology, being a Richie brace, an Aircast a69 brace, and custom foot orthoses, along with the sum of $2,000 for low-level assistive technology generally.[64]

   [64] Respondent’s Updated Statement of Facts, Issues and Contentions dated 8 December 2023 at [77]-[78].

7. However, the Respondent disputes the Applicant’s request for funding for four items, namely:

   (a)A ‘bum bag’;

   (b)A Lumbar support pillow;

   (c)New Brooks Glycerin runners ($260.00); and

   (d)Voice activated computer software ($700).

8. The Respondent contends that

   (a)the bum bag, running shoes and lumbar support pillow, are each a day-to-day living cost, and therefore cannot be funded pursuant to rule 5.1(d) of the Supports Rules; and

   (b)the voice activated computer software is unsupported by sufficient evidence to support it being reasonable and necessary for the purposes of sections 34(1)(a) to (f) of the NDIS Act.

9. The Applicant contends that the bum bag is necessary, in favour of a shoulder-strap type bag, because she cannot carry weight on her shoulders; a shoulder bag would pull her neck forward causing pain. She advised that a lumbar support pillow was required when doing exercises at home.[65]

   [65] Transcript 7 August 2024 page 22.

10. The Respondent contends that they are not assistive technology for which the Scheme was intended.

11. I agree with the Respondent’s views. I appreciate that the Applicant is using these to assist her. However, these items are not so specialised as to be necessarily related to her disability.

12. The Applicant may require a bag in which to carry articles and a pillow for exercising. That is not something that arises from her disability, but the sort of everyday expense people may incur. People purchase bum-bags, or over-shoulder strap bags or backpacks, for a variety of reasons and for a variety of purposes, and may choose a lumbar support pillow over other types of pillow for preference. On the evidence before me, there is nothing so specialised about a bum-bag or lumbar support pillow that elevates them into the realm of assistive technology.

13. So far as the runners are concerned, the Applicant supplied a receipt from a sports shop dated 16 February 2024 for pair of ASICS footwear costing $79.95.[66] She testified that it was not normal footwear. The particular brand receipted was an ‘anti-shock, shock absorption for the spinal cord injury to reduce the absorption of shock through the spine’. She does not wear runners to run, but to support her spine as an orthotic supportive footwear.[67] It appears that the Applicant seeks reimbursement for that sum and also additional funding for the more expensive Brooks shoes.

    [66] Exhibit A5 Document 4.

    [67] Transcript 7 August 2024 page 13.

14. The Tribunal had before it a letter from ArchRite Podiatry dated 10 September 2021 recommending that the Applicant be provided with a Ritchie Brace and other orthotic items, which the Respondent has now agreed to fund. It goes on to recommend Brooks Glycerin runners ‘to provide stable well cushioned base for orthoses, good shock absorption for neck pain associated with her previous [motor vehicle accident] and durable outersoles and uppers for use with an ankle brace. Estimated cost $260 RRP’.[68]

    [68] Exhibit R1 Document T10 pages 38-39.

15. The Tribunal had a letter from Elite Podiatry dated 13 February 2024.[69] The letter advised that the Applicant had been assessed and found to have severely unstable feet, severe forefoot dysfunction, and increased instability and hypermobility in her feet and ankles. It provided recommendations for treatment and some costings ‘until end of their life’, which I infer to mean ‘for the Applicant’s life’. The letter sets out a ‘Footwear treatment plan’ recommending four pairs of shoes in total, being two pairs of ‘runners/sports shoes’, one pair of ‘supportive house shoes’, two pairs of ‘slimmer, casual shoes’, and one pair of sandals for ‘hotter weather at all times’. The author advises that she has provided the Applicant with a list of ‘approved’ shoes and a range of prices for them between $120 per pair to approximately $280 per pair, and she gives examples which include Brooks Glycerin, Ghost or Dyad shoes. The author advises that a ‘new pair of shoes is required every four weeks currently to ensure stability is maintained with his [sic] excessive wear and tear’.[70]

    [69] Exhibit A2.

    [70] Exhibit A2.

16. The letter dated 13 February 2024 refers to the Applicant as having first attended on 13 February and having been a ‘regular patient’ since then. At the end of the letter is a note to the effect that it had been ‘updated’ on 5 March 2024 ‘after the consultation with the patient’. I infer, then that the Applicant had been a ‘regular patient’ for three weeks, although it is not apparent how many times she had been seen or to what purpose.

17. The report from occupational therapist Ms Connors dated 14 April 2024 merely adopts the podiatrist’s recommendation as something that will ‘aid in compliance and improve positive outcomes’.[71]

    [71] Exhibit R3 Document ST64(a) page 550.

18. The Respondent originally rejected the Applicant’s request to pay for the particular brand and variety of runners on the basis that they were a day-to-day expense within the meaning of rule 5.1 of the Supports Rules.

19. I accept that the Applicant requires certain types of footwear suitable for her disability, but there is no evidence that the shoes she is seeking to have paid for under the Scheme are other than a commercial brand of running shoe. On the evidence available, while a particular brand and type of running shoes are recommended for their characteristics, and may be most suitable for the Applicant, they are not so ‘specialised’ as to fall within the scope of assistive technology.[72]

    [72] Exhibit 2 Document ST58 page 401, AT Guideline: cp: example at page 9.

20. The Respondent seemed to concede that voice-activated (or perhaps more accurately, voice activating) software for the Applicant’s computer would fall within the scope of assistive technology.[73] However, the evidence before the Tribunal on the subject is sparce.

    [73] Transcript 7 August 2024 page 68.

21. The Applicant advised that the voice-activated software would cost $800. She advised that she cannot currently use a computer. The software would enable her to speak and have the computer type without her using her hands and it also ‘takes your neck out of it’.[74]

    [74] Transcript 7 August 2024 page 49.

22. The most recent occupational therapy report, from Ms Connor, evidences the Applicant’s difficulties with her hands and fine motor skills. However, it does not support her being incapable of using a computer keyboard, or the need for voice-activated software. There is insufficient evidence before me that the Applicant requires this software to address any communication or accessibility needs arising from her impairment. 

    Sex worker

23. The evidence in support of the funding of a sex worker is primarily that of the Applicant.

24. Occupational therapist Ms Catherine Parrott of ‘On The Go’ Rehabilitation Services recommended in her Occupational Therapy Functional Capacity Report of 3 October 2021 that the Applicant[75]

    ‘would benefit from exploration of this support to promote her sexual wellbeing and expression. This is currently limited due to her disability impacting on her ability to access the community to engage socially to find and pursue meaningful intimate relationships. This is a reasonable and necessary support that facilitates [the Applicant’s] equal right to ordinary sexual expression as a person with a disability’.

    She did not particularise what ‘exploration’ would involve, how many hours it might take, or the potential cost.

    [75] Exhibit R1 Document T13 page 55.

25. Consultant occupational therapist Mr Brenton Feilke in his report commissioned by the Respondent 31 August 2022, without having personally assessed the Applicant and based only on the materials supplied to him, opined:[76]

    I am not familiar enough with the proposed role of the sex therapy worker and MPPZ’s current limitations and required supports are not adequately detailed in the supplied documentation for me to provide an informed opinion.

    [76] Exhibit R1 Document 3.2 page 237.

26. More recently, occupational therapist Ms Connor in her report of 14 April 2022 recommended Specialist Sex Therapy under the heading of ‘Identified Needs and Recommendations’.[77] She mentioned several ‘compelling’ justifications, related to the Applicant’s history and ‘trauma-related challenges’ which have ‘significantly impacted her ability to safely engage in sexual intimacy, particularly with unfamiliar individuals’. The Applicant therefore needs ‘support for connection and intimacy in a safe and psychologically secure manner’. Ms Connor opines that the Applicant ‘demonstrates appropriate social safety measures, but her vulnerability to exploitation during triggered trauma responses highlights the necessity of accessing sex therapy to fulfill her psychological needs safely’. Furthermore, ‘engagement in sexual activity and intimacy has been shown to positively impact chronic pain, offering additional justification for funding support in this area’.

    [77] Exhibit R3 Document ST64(a) page 542.

27. Ms Connor did not give evidence, so the nature of the ‘therapy’ she had in mind is unexplained. Leaving aside the question of whether she, whose field is occupational therapy rather than treating trauma, is qualified to make such recommendations, the problem remains that the Applicant does not want sexual ‘therapy’.

28. On the contrary, the Applicant is seeking that the Respondent pay for a sex worker – one with training and expertise in assisting disabled people – to attend and provide her with sexual release: ‘well, they term it ‘sex therapy’, but it’s hiring sex services, largely from private escorts who have a trauma-informed as well as disability certification to have special needs, and for stress release …’.[78]

    [78] Transcript 7 August 2024 page 44.

29. The Applicant emphasised that the problem was a physical one: ‘chronic pain’, an inability to flex her neck, ‘compression on the spine is a problem’,[79] and fatigue.[80]

    [79] Transcript 7 August 2024 page 47.

    [80] Transcript 7 August 2024 page 45.

30. The Applicant alluded briefly to her PTSD as an additional impediment to sexual relations, but which was not being treated by a psychologist and the Tribunal had no reports from anyone other than her occupational therapist: according to the Applicant ‘It’s not a psychology matter. It’s not psychosocial. It’s a trauma. PTSD is trauma’.[81] The combination of circumstances mean that she has ‘no sex life’.[82]

    [81] Transcript 7 August 2024 page 45.

    [82] Transcript 7 August 2024 page 47.

31. The Tribunal is in the position that it has only this evidence upon which to rely. When counsel for the Respondent sought to ask the Applicant about her occupational therapist’s recommendation of funding for ‘sex therapy’, rather than a ‘sex worker’, she objected to being questioned and refused to entertain giving answers. The questioning on the subject concluded with her declaring that ‘I don’t need therapy’.[83]

    [83] Transcript 7 August 2024 pages 57-59.

32. The Applicant relies on the Full Court of the Federal Court decision in WRMF. The Tribunal accepts that the funding of sex workers with the necessary skills can be a reasonable and necessary support for a participant in the Scheme. The Tribunal acknowledges that sexual release and the generation of pleasure with a partner – whether a sex worker or a sex therapist – with disability training or sensitivity can assist wellbeing. It is also the case that a decision-maker must look to the substance, rather than the terminology, in deciding whether what is sought is reasonable and necessary.

33. However, WRMF was a case where the participant suffered from significant medical conditions that prevented her from participating in a mutually fulfilling sexual relationship and which otherwise prevented her from obtaining sexual release in any unassisted manner.[84]

    [84] WRMF at [42].

34. As the Tribunal at first instance in that case pointed out:[85]

    [WRMF] does not seek the services of a sex worker [in the sense of a person providing services that might be sought by a non-disabled person for transactional sexual activity or release].[86] Rather she seeks the services of a specially trained sex therapist, a term which I have used to draw attention to an important difference. She seeks those services not because she does not have a life partner (although she does not have or expect ever to have a partner). As will appear from the confidential section of these reasons, a partner from the community would be unlikely, because of special features of the case, to be willing or able to provide the kind of services [WRMF] requires in order to obtain sexual release. Nor, if she ever found a partner, would she be able to sexually stimulate the partner, because of matters referred to in the confidential reasons. Her condition also prevents her from masturbation.

    [85] WRMF at [43].

    [86] WRMF at [96].

35. As to the provider of such services, the Full Court explained:[87]

    [WRMF] was seeking a particular kind of service from someone who is prepared to work with her knowing her complex medical conditions; prepared to work with her in circumstances that would be challenging to many people (as described by [WRMF] in her evidence); willing to learn to assist her having regard to her particular needs; and who has appropriate expertise (however gained) working with disabled persons.

    [87] WRMF at [96].

36. In this case the evidence does not establish anything like that level of physical incapacity: the Applicant’s evidence does not go so far as to make unassisted physical sexual activity unrealistic, and such physical loss of capacity is not referred to in any of the occupational therapy reports. Further, the Applicant denies that her PTSD, and other traumas that may inhibit her from engaging in intimacy, require therapy, and she appears to eschew such treatment from those qualified to provide it. She has not provided anything other than a general assertion that suitable service providers are available, and supplied no costings by which one can judge ‘value for money’ as required by section 34(1)(c) of the NDIS Act.

37. The Respondent submits that 60 hours per year of capacity building funding for social skills and social and community participation, together with 30 hours for Level 3 psychosocial recovery coach support is reasonable and necessary, and that ‘this level of support will address the underlying barriers that the Applicant's disability may have impacting on her ability to access the community to engage socially to find and pursue meaningful intimate relationships’.[88] It has offered to fund 12 hours of special sex therapy and counselling.[89] To the extent that the Applicant’s need for the intervention of a sex worker results from social isolation, these options appear to me to be worth exploring as conducive to a more fruitful and long-term solution, rather than paying unquantified amounts towards contractual sexual services.[90]

    [88] Respondent’s Updated Statement of Facts, Issues and Contentions dated 8 December 2023 at [66].

    [89] Transcript 7 August 2024 pages 66-67.

    [90] See also the recent Tribunal decision of VZLK and National Disability Insurance Agency [2024] AATA 3227 at [284]-[287].

38. I am not satisfied that on the available evidence the funding of a sex worker as sought by the Applicant is reasonable and necessary, and to be preferred to the capacity-building funding the Respondent accepts it should provide. I propose to direct accordingly.

    Equine/hippotherapy

39. The Applicant contends that equine therapy is required to improve her posture and spine curvature. It is also a trauma therapy which ‘assists with healing and coping’ with her pain. It reduces stress and assists with mobility of the hips and curvature of the spine, by engaging ‘core muscles’. She can currently only afford to engage with such therapy once a week and wants to increase it to twice per week.[91] The current sessions are 40 minutes, and she is under the supervision of an equine trainer, who she describes as an ‘equine therapist’ and who she says does a lot of treatment for children who are participants in the NDIS.[92] 

    [91] Transcript 7 August 2024 page 33.

    [92] Transcript 7 August 2024 page 34.

1. In her report of 3 October 2021, occupational therapist Ms Catherine Parrott advised of the Applicant’s interest in a hippotherapy program, but that she was unable to participate in it due to lack of formal support to assist with transport there and back.[93] Later in her report, she advised that:[94]

   [The Applicant] is interested in attending a hippotherapy program in [suburb] to improve her core strength and reengaging in regular horse riding. This is an activity that she loved in her childhood in which she reported that the riding skills she obtained have been forgotten in recent years due to funding restrictions, distance, travel arrangements. Hippotherapy and horse-riding sessions will take 3-4 hours in total in each session and will be beneficial in improving [the Applicant’s] strength, balance and muscle control as well as improving her overall mental health and wellbeing, and build self-confidence.

   [93] Exhibit R1 Document T13 page 49.

   [94] Exhibit R1 Document T13 page 52.

2. Ms Connor in her letter of 25 March 2024, with reference to the ‘acceptance and recognition’ of Ehlers-Danlos Syndrome says:[95]

   EDS and Physical Disability: The Ehlers Danlos Syndrome Association outlines the lifelong effects that the symptoms have on those who suffer from this disability, but also states that 'there are no disease specific treatments for any type of EDS.' (What is EDS? – The Ehlers Danlos Society (ehlers-danlos.com). This suggests that [the Applicant] can only attempt to manage the symptoms of this disability using Assistive technology as well as extended therapy supports including Psychology, Occupational Therapy, Physiotherapy, Equine Therapy, and Podiatry.

   [95] Exhibit R3 Document ST64(b) page 560.

3. She goes on to say:[96]

   For individuals with EDS, physical activity is beneficial to increase core and postural stability, balance, and proprioception. Despite walking being a common form of physical activity, it's often inaccessible to individuals with EDS due to the challenges posed by muscle fatigue, lower limb weakness, and heightened pain, which are exacerbated by the demands of walking. The rhythmic movement experienced during ambulation on horseback stimulates both anterior and posterior swinging movements, which are crucial for enhancing proprioception[97] and body awareness, fundamental elements often compromised in individuals with EDS (Koca & Ataseven, 2016). Moreover, the movements of the horse inherently promote the attainment of proper balance and posture, areas of challenge for those with EDS due to joint hypermobility and instability.

   The multi-sensory environment provided by the horse and its surroundings offers a rich spectrum of sensory and motor input, aligning with the diverse needs of individuals with EDS to enhance their sensory processing capabilities. As outlined by Koca and Ataseven (2016) the mechanisms of action, including core connection, sensory connection, communication connection, and neuroplasticity, underscore the profound therapeutic benefits of equine therapy. Direct contact with the patient’s pelvis and spine during horse riding ensures targeted sensory input, fostering motor responses in the pelvis and trunk, thus aiding in improving postural control and core body connection.

   [96] Exhibit R3 Document ST64(b) pages 563-564.

   [97] Awareness of the body in space.

4. There is no mention of equine therapy, hippotherapy, or horse-riding in Ms Connors’ subsequent report of 14 April 2024, or recommendations concerning it.

5. The Tribunal had before it a quote from a Riding School, dated 7 January 2024, for 50 once per week 45-minute sessions totalling $3,750.00 for the year, and for 100 twice per week 45-minute sessions totalling $7,500 for the year. The quote opines:[98]

   Equine Therapy has many therapeutic benefits for people suffering from EDS. It helps physically with core strength, balance, postural and body awareness. Exercising with a horse is great fun and can be very rewarding. Horses never judge and therefore it can be very good for ones mental state. Working with horses can aslo help to improve decision making, confidence and communication to name a few. [sic passim]

   The author of the document is unidentified, and their ability to comment on the benefits of equine therapy for those with Ehlers-Danlos Syndrome is not apparent.

   [98] Exhibit R3 Document ST64(d) page 569.

6. The Respondent submits that there is limited medical evidence about the benefits of equine therapy/hippotherapy with respect to the Applicant’s spinal condition. It submits that the available evidence does not show that funding for equine therapy/hippotherapy 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 (section 34(1)(c) of the NDIS Act), or that the level of assistance will be, or is likely to be, effective and beneficial for the participant having regard to current good practice (section 34(1)(d) of the NDIS Act).[99]

   [99] Respondent’s Reply dated 7 May 2024; Transcript 7 August 2024 page 67.

7. I agree that the medical and physiological evidence is limited. Furthermore, in 2021 when Ms Parrott prepared her report, the Applicant’s interest in horse riding was expressed in terms of reviving a childhood interest and skill, and her reference to improving strength, muscle and balance control was unsupported by any analysis: what was postulated were 3 to 4 hour sessions, not the 45-minute professionally supervised sessions now being sought, suggestive of a recreation rather than therapy.

8. However, with the greater information about the Applicant’s Ehlers-Danlos Syndrome, Ms Connors’ advice as to the benefits of horse riding corroborates the Applicant’s assertion that it can improve her posture, spine curvature, and engage core muscles. There is reference in other evidence in the papers before the Tribunal to the Applicant’s physiotherapy and exercise aimed at improving her spinal symmetry and core muscles;[100] riding would seem to complement that. It is unfortunate that there is a lack of medical evidence from those qualified to speak of Ehlers-Danlos Syndrome or the Applicant’s spinal cord issues to explain the degree to which horse riding will benefit the Applicant. Evidence of the extent to which it will reduce dependence on other reasonable and necessary therapeutic supports the Applicant is currently receiving is also lacking, as is evidence from suitably qualified and objective persons as to the alleged mental health benefits of such therapy.

   [100] Exhibit R1 Document 2.8(e) pages 209-210; Exhibit A5 Document 9, Letter from Ms Tarryn Labuschagne of Perfect Balance Physiotherapy dated 1 July 2024; Exhibit A7 Document 6, Letter from Ms Tanya Bates Nutriment 4 Living dated 5 August 2024.

9. I cannot be satisfied on the evidence of the extent to which this therapy will be efficacious or represent value for money, relative to the benefits achieved and cost of alternative support. I propose to direct accordingly.

   Assistance dog

10. The evidence before the Tribunal is that the Applicant lives alone in company with at least one dog and a cat. In 2019 she obtained a dog that she wanted to have trained as an assistance animal. The Respondent has declined to defray the costs to date and into the future.

11. The Applicant’s evidence was that she wanted the assistance dog ‘mainly for the aspect of trauma and PTSD as well as the dog to be trained physically to open doors, open cupboards, push doors, everything that I struggle with currently, dropping items, picking things up, and then going into the community without risk of being assaulted due to lack of flexibility in my neck to see behind me’.[101]

    [101] Transcript 7 August 2024 page 35.

12. The Applicant contended that the ‘cost benefit’ would be to reduce the number of support worker hours she would need ‘because the dog is the support’.[102] The Applicant was critical of her support workers for various reasons, including that they were ‘not trauma-informed’, did not know what Ehlers-Danlos Syndrome was, had ‘unconscious bias’ towards her, and were dishonest.[103]

    [102] Transcript 7 August 2024 page 35.

    [103] Transcript 7 August 2024 page 35.

13. The dog would be trained in ‘[t]rauma-informed assistance’ to ‘regulate emotion and crisis response’: it would, by nudging or placing its paw on her or otherwise redirecting her, calm her central nervous system.[104]

    [104] Transcript 7 August 2024 page 36.

14. The dog she chose and has worked with for the past few years is a Doberman. She wanted a large dog to also provide her with security when she is in the community.[105] The dog would also be trained to assist with shopping, by selecting items and pushing them into a shopping basket, and open and close doors and cupboards,[106]

    [105] Transcript 7 August 2024 page 36.

    [106] Transcript 7 August 2024 page 37.

15. The Applicant spoke of ‘three supporting documents’ provided in support of an application in 2019 for an assistance dog. The Tribunal had before it by way of documentation only the following:

    (a)A Quote from Secure Paws and Claws dated 15 July 2019 for assistant dog training ($9,200.00);[107]

    (b)An email from Secure Paws and Claws dated 9 September 2021 providing an updated quote ($85.00 per hour and $170.00 for first session);[108] and

    (c)Occupational therapist Ms Catherine Parrott’s Occupational Therapy NDIS Functional Capacity Report of 3 October 2021.[109]

    [107] Exhibit R1 Document T3 page 28.

    [108] Exhibit R1 Document T9 pages 36-37.

    [109] Exhibit R1 Document T13 pages 45-55 at page 55.

16. Ms Parrott, in her report, mentions that:[110]

    [The Applicant’s] anxiety and PTSD further impacts on her social functioning, she reported that she becomes anxious busy crowds and group situations. [The Applicant] reported that she has previously had an OT assess and submit an assistance dog application so that she does not have to rely on support workers to access her local community (i.e. shopping). This was rejected initially as the trainer that she went through was not NDIA registered. After changing to plan managed and resubmitting the application, [the Applicant] has not heard back in over 10 months.

    [110] Exhibit R1 Document T13 page 49.

17. Later in a section headed ‘PTSD Assistance Dog Funding’, Ms Parrott repeated much of the same information, and recommended that the application for an assistance dog be ‘reviewed or funding for additional Occupational Therapy assistance is provided to support [the Applicant] with resubmitting the required AT application’.[111]

    [111] Exhibit R1 Document T13 page 55.

18. The earlier application referred to was not identified and did not appear to be in the papers before the Tribunal. Ms Parrott provided no further analysis of need for an assistance dog or advice how, from a functional perspective, an assistance dog would assist the Applicant by freeing her from reliance on support workers.

19. The Respondent’s Occupational Therapy Functional Capacity Report from occupational therapist Mr Brenton Fielke, dated 31 August 2022, stated that there was insufficient information in the supplied documentation to describe the extent of the Applicant’s psychosocial challenges (symptoms, current limitations, current treatments and proposed benefits) to be able provide an opinion on her need for an assistance animal.[112]

    [112] Exhibit R1 Document T3, T9, T13.

20. As noted, the most recent Functional Capacity Assessment Report available to the Tribunal was that of Ms Connors dated 14 April 2024.[113] The Tribunal also had presented to it a letter from Ms Connors dated 25 March 2024 concerning the Applicant’s Ehlers-Danlos Syndrome.[114] The latter has nothing to say about an assistance dog, but the Report under the heading ‘Identified Needs and Recommendations’ states:[115]

    Assistance Dog Funding – It is recommended that the NDIS provide funding within the Applicant's new NDIS plan to allow [the Applicant] to access an OT with mental health and assistance animal experience to assess for and provided recommendations and prepare an AT assessment report for the request for an assistance dog. It is recommended that this funding be provided on [the Applicant’s] new plan to allow her access to these services when she has improved capacity as her capacity is currently reduced due to ongoing stressors related to her health.

    [original emphasis]

    [113] Exhibit R3 Document ST64(a) pages 536-558.

    [114] Exhibit R3 Document ST64(b) pages 559-565.

    [115] Exhibit R3 Document ST64(a) pages 555.

21. There is no mention of the purpose for which the dog is required or how it may assist the Applicant functionally. The text of the report speaks of the Applicant’s physical limitations, but does not identify an inability on the Applicant’s part to perform the physical tasks she has in mind for the proposed assistance animal. Nevertheless, Ms Connors recommened that the Respondent make provision for a ‘Once off inclusion of 20 hours of Occupational Therapy’ for a functional capacity assessment specifically ‘to explore’ an assistance animal assessment and application.[116] 

    [116] Exhibit R3 Document ST64(a) page 558.

22. The Assistance Animals Guideline informs the Respondent’s approach to funding such animals. It has adopted an internationally recognised definition of assistance animal, recognised by La Trobe University in a wide-ranging study and report into the subject.[117] The La Trobe University report defines an assistance animal as ‘an animal that is trained to perform at least 3 tasks or behaviours which mitigate the effects of a person’s disability’: namely, at least three specific, active, tasks that the participant needs but cannot do because of their disability.[118] The Respondent will also fund, in addition to physical assistance animals, ‘assistance animals for some participants who have been diagnosed by a psychiatrist with long term but stable Post Traumatic Stress Disorder (PTSD) who are able to take on the ongoing responsibilities of a primary handler’.[119]

    [117] La Trobe University ‘Reviewing Assistance Animal Effectiveness: Literature review, provider survey, assistance animal owner interviews, health economics analysis and recommendations’ Final Report to National Disability Insurance Agency (30 September 2016).

    [118] Exhibit R2 Document ST58 pages 418-453 at page 419, pages 420-421, Animals Guideline pages 2-4.

    [119] Exhibit R3 Document ST58 page 420.

23. The La Trobe Report and the Assistance Animal Guideline also distinguish assistance animals from other types of animals that may be helpful and provide support, including:

    companion animals – an animal kept for company or fun, including pets

    emotional support animals – an animal that provides emotional and informal support

    therapy animals – an animal that takes part in therapy activities that are led by a therapist

    facility animals – an animal that may or may not live onsite and is trained to work in a specific facility or type of facility, such as a residential aged care home

    visitation animals – an animal that belongs to a volunteer or provider and is trained to visit residential, health, or educational facilities. These animals bring enjoyment to the clients or students.

    [original emphasis]

24. The decision to fund an assistance animal requires the decision-maker to be satisfied of each of the criteria in section 34(1) of the NDIS Act.

25. The evidence before me is that the Applicant wants a dog that will provide her with not only a degree of psychological assistance to address her PTSD, but also some physical functions such as selecting groceries and opening and shutting doors, and to also provide her with at least a sense of security when in public. I have no evidence, other than the Applicant’s say-so, that a dog can meet those expectations. On the face of it, an emotional support animal may meet what the Applicant is after with respect to her PTSD, although there is no evidence before the Tribunal from someone who is qualified to comment on the subject. So far as her physical limitations are concerned, neither the report from the Applicant’s occupational therapist Ms Parrott nor the most recent report from Ms Connors say anything about the need for an assistance animal to perform the tasks the Applicant has in mind for it.

26. The Respondent contends that the available evidence does not show an assistance animal 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 (section 34(1)(c) of the NDIS Act), or that the level of assistance will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice (section 34(1)(d) of the NDIS Act).[120] I agree. Further, until there is confirmation as to whether an assistance animal is reasonable and necessary, there is no basis for reimbursement of funds that the Applicant has chosen to expend to date.

    [120] Respondent’s Updated Statement of Facts, Issues and Contentions dated 8 December 2023 at [76].

27. However, the Respondent accepts as reasonable and necessary a one-off allocation of 20 hours to allow an occupational therapist, experienced in working with assistance animals and mental health to prepare an assistive technology assessment report in respect of the request for a PTSD assistance dog. With this, I also agree and propose to direct accordingly.

    CONCLUSION

28. Having regard to the above, I am not satisfied that the Applicant’s request for additional supports, except as identified, has been made out.

29. As noted, the Respondent has conceded a number of supports and along with a direction concerning gym membership, I consider that they ought to be included in the Applicant’s SOPS. Accordingly, I direct as follows:

    (i)Four hours of individual support per week for Assistance with Personal Domestic Activities;

    (ii)16 hours of individual support per week for Access Community Social and Recreational Activities – Standard – Weekday Daytime rate;

    (iii)Four hours per month of yard maintenance;

    (iv)Two hours per week of house cleaning;

    (v)$1,000 per annum for low-cost assistive technology – personal mobility;

    (vi)$1,000 per annum for disability-related health consumables;

    (vii)$1,500 per annum for low-cost assistive technology for prosthetics and orthotics;

    (viii)Preparation and delivery of meals as per quote;

    (ix)Transport funding (Level 3), being $3,456 per annum;

    (x)Support coordination funding (80 hours per years, Level 2);

    (xi)Specialist support coordination (40 hours per year, Level 3);

    (xii)26 hours per year of physiotherapy;

    (xiii)26 hours per year of exercise physiology including, subject to quotes, gym membership for such sessions;

    (xiv)26 hours per year of occupational therapy;

    (xv)20 hours for an Assistive Technology assessment report prepared by an occupational therapist with experience working with assistance animals and mental health for the request for a PTSD assistance dog;

    (xvi)12 hours of podiatry;

    (xvii)12 hours of specialist sex therapy/counselling (not sex worker services); and

    (xviii)Six hours for a dietician assessment and recommendations.

    (d)All other supports in the Applicant’s existing statement of participant supports, excepting any one-off assistive technology supports already used, are to be replicated from the date on which the supports specified above are included in the Applicant's statement of participant supports until the reassessment date.

    (e)The management of funding for reasonable and necessary supports under the Applicant’s plan is to remain the same as the management of funding for those supports as specified in the statement of participant supports dated 9 January 2024.

    (f)The date by which the Respondent must reassess the Applicant’s plan is to be 12 months after the date on which the supports in paragraph (a) above are included in the Applicant’s statement of participant supports.

I certify that the preceding 122 (one hundred and twenty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Mischin

..........................[SGD].............................

Associate

Dated: 9 October 2024

Dates of hearing:	20, 21, 22 November and 2, 7 August 2024
Date of final submissions:	7 August 2024
Applicant:	In person, self-represented
Counsel for the Respondent:	Ms C Taggart (2 August 2024) Mr M Daly (7 August 2024)
Solicitors for the Respondent:	Ms N Bosnjak, Mills Oakley

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