Mueller and National Disability Insurance Agency
[2024] AATA 23
•16 January 2024
Mueller and National Disability Insurance Agency [2024] AATA 23 (16 January 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s):2022/6840
Re:Mueller
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:The Hon Pru Goward AO, Senior Member
Date:16 January 2024
Place:Sydney
Pursuant to subsection 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and remits the matter to the Chief Executive Officer of the National Disability Insurance Agency in accordance with the following direction:
a) The decision under review is varied to provide 1:1 SIL funding for a period of seven months, during which time the Applicant’s capacity to live with a co-resident is to be reviewed.
b) The Applicant’s SIL provider be reimbursed for the difference between 1:1 SIL and 1: 2 SIL support provided between 8 September 2022 and 9 November 2023 at the standard intensity rate applying at the time.
....................[SGD]...............................................
The Honourable Pru Goward AO, Senior Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME - reasonable and necessary supports - supports for participant rules - value for money - harm to the participant and risk to others - reimbursement - behaviours of concern - shared accommodation - independence - functional capacity - decision under review set aside and remitted with direction
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43(1)(c)(ii)
National Disability Insurance Scheme (NDIS) Act 2013 (Cth) ss 33, 34, 46, 53
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Mazy and National Disability Insurance Agency [2018] AATA 3099
SECONDARY MATERIALS
National Disability Insurance Agency, Our Guidelines – Including Specific Types of Supports in Plans Operational Guidelines (Web Page) < align="left">NDIS Pricing Arrangements and Price Limits 2023-24 (previously published as the NDIS Price Guide)
NDIS Quality and Safeguards Commission, NDIS Practice Standards: skills descriptors (Web Page) < FOR DECISION
The Honourable Pru Goward AO, Senior Member
16 January 2024
INTRODUCTION
Ryan Muller (the Applicant) is a thirty-three-year-old man with a diagnosis of Cerebral Palsy, Intellectual Disability (Mild -Moderate), Epilepsy, as well as Generalised Anxiety Disorder, Major Depression Disorder and Dermatillomania.
On 25 May 2022, the National Disability Insurance Agency (the Respondent) approved a statement of participant supports for the Applicant, the original decision, which reduced the total funded supports from $673,674.78 to $381,580.09 for the period 25 May 2022 to 25 May 2023.
After a request from the Applicant to review the original decision to include 24/7 1:1 Supported Independent Living (SIL) supports (made on 14 June 2022), the decision not to fund the requested support was confirmed on 16 August 2022.
On 24 August 2022, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the internal review decision under s 103 of the National Disability Insurance Scheme Act 2013 (the Act). Under S 42D of the Administrative Appeals Tribunal Act 1975 (the AAT Act), the Tribunal remitted the decision to the Respondent for consideration on 22 May 2023. Subsequently, an interim plan was approved by the Respondent on 2 June 2023 and later varied pursuant to s 47A of the Act for the period 10 August 2023 - 9 November 2023.
Although not specified in the Applicant’s plan approved for 10 August 2023 – 9 November 2023, the parties understood this to include:
(i) capacity building supports for 12 months and;
(ii) standard intensity SIL1:1 for the first six months, and then an additional month during which an independent assessment is to be undertaken of the Applicant’s capacity for shared accommodation.
(iii) Standard intensity SIL 1:2 for the remaining five months of the plan.
Subsequently, a plan to this effect was approved by the Respondent from 9 November 2023- 9 February 2024.
The Applicant has also sought reimbursement of funds for 1:1 SIL provided for some periods of the plan which commenced on 25 May 2022.
RELEVANT SECTIONS OF LEGISLATION
The relevant section of the Act relied upon include; s 33, 34, 46 and 53. For completion, these sections are reproduced below:
Section 33 of the Act relevantly provides:
(2) A participant's plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
…
(b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
…
(5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a) have regard to the participant's statement of goals and aspirations; and
(b) have regard to relevant assessments conducted in relation to the participant; and
(c) 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; and
(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and (e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant.
Section 34 of the Act provides:
(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).
(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant.
Section 34 of the Act provides:
(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).
The Tribunal notes that s 24(1) (c), value for money, is relied upon by both parties.
S 53(2) (a) is relied upon by the Applicant. For completion, the section states:
Further in deciding whether to approve a statement of participant supports pursuant to section 36 of the NDIS Act the respondent can request information and progress reports. There are opportunities for the respondent to monitor and/or re-assess a plan without mandating a review by limiting the plan length to only six or seven months.
Section 46 (1) is also relied upon by both parties. For completion, this states:
(1)A participant who receives an NDIS amount, or a person who receives an NDIS amount on behalf of a participant, must spend the money in accordance with the participant’s plan
RULES RELIED UPON
The Rules relied upon are concerned with the assessment and determination of the reasonable and necessary supports that will be funded by the NDIS. These rules are outlined in the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Supports Rules). The Supports Rules of most relevance to the present matter are featured in Part 3, Assessing Proposed Supports; in particular:
Rule 3.1 (Value for Money) and Rules 3.2 and 3.3, which apply to the requirement in s34, that a reasonable and necessary support be effective and beneficial and current good practice.
Rule 5.1 (a) is relied upon by the Applicant; it provides for a support that will not be provided or funded:
If it is likely to cause harm to the participant or pose a risk to others.
The Applicant also relies upon the objectives and principles of the NDIS Act: section 3, the right to determine his own best interests, including the right to exercise choice and control under the principles guiding actions under the NDIS Act: section 4, his right to choose his place of residence and with whom he lives.
The Applicant relies upon section 39 of the Act to determine whether the disputed support be paid from the time of the original decision viz:
The Agency must comply with the statement of participant supports in a participant’s plan.
BACKGROUND
The Applicant has a range of impairments arising from his primary disability of cerebral palsy, including intellectual impairment, anxiety and depressive disorders. However, it is his behaviours of concern, including faecal and urination practices and incontinence; dermatillomania; and others such as aggression, a compulsion to play X Box games, threats of self-harm and sexualised advances, which are central to the Applicant’s request for sole occupancy supported living.
The Applicant is also morbidly obese and struggles with his mobility contribute to the general difficulties he has in his everyday life. Additionally, his support workers and therapists agreed that his oral communication is poor but occasionally misleads the listener into believing his comprehension is greater than it is in reality.
The Applicant has lived alone with 1:1 SILS 24/7 since 2021 and requires significant assistance from support workers. His family consider his functionality has declined in the past few years and he is more dependent on others for everyday needs than he once was. His supervising Occupational Therapist (OT), Ruth Howell, also confirmed that his functionality had declined since 2018; his unwillingness to engage in community activities and his independence with self-care have both reduced, while his behaviours of concern appear to have increased in recent years.
Although the Applicant has a Behaviour Support Plan to assist him in managing his behaviours of concern, the shortage of therapists in his hometown in regional New South Wales, the impact of Covid and his reluctance to engage with therapists have made it difficult to provide him with his recommended capacity building supports. His preference for playing on his Xbox, on one occasion for days without sleep, has also limited the time available to develop his capacities.
The Applicant had not seen his psychiatrist in over two years and had also ceased receiving treatment from his psychologist two years ago.
From August-December 2022, his SILS provider, Chrysalis, planned and then provided a program, a detox program, to reduce the Applicant’s reliance on anti-psychotic medication, Risperidone. The detox program ran from 12 September 2022 until 7 December 2022. The Tribunal notes anti-psychotic medication is a chemical restraint and accordingly, his support provider considered it desirable that the level be reduced, which was achieved.
In January 2023, sometime after the Respondent had affirmed its decision to reduce the Applicant’s SILS funding from 1:1 support to 1:2 support, Chrysalis commenced a trial of shared accommodation in the Applicant’s home with another client of their service.
Several witnesses confirmed that the trial of shared accommodation had been a failure and the trial was abandoned after 9 days following verbal and physical altercations with the other occupant and both residents threatening self-harm and harm to one another.
CONTENTIONS
The Tribunal notes the provision of capacity building and improved daily living supports over twelve months has been agreed to by the parties but remains relevant to the Respondent’s contentions regarding SILS funding in that same twelve-month period. In final submissions, the Respondent also advised the Tribunal that an additional 15 hours of exercise physiology and six hours for a continence assessment and recommendation of supports is reasonable and necessary and will be provided. This is accepted by the Tribunal.
The Applicant contended that 1:1 24/7 SIL remains reasonable and necessary for 12 months under s 34 (1) of the Act.
The Applicant contended under Rule 5.1 (a) that to require the Applicant to live with another eligible resident in SDA was likely to cause harm to the Applicant or pose a risk to others.
In closing submissions, the Applicant sought reimbursement of 1:1 SIL from 12 September 2022, contending that if the Tribunal determines such support was reasonable and necessary as at that date, and has remained reasonable and necessary since that time, that the Respondent must comply with the Statement of Participant Supports (SOPS) in accordance with s 39. At an earlier stage in the proceedings in the Applicant’s Statement of Facts, Issues and Contentions, the Applicant contended that 1:1 SIL at the high intensity rate for the periods 1 October 2022 to 22 December 2022 was necessary on the basis that this support was required to keep the Applicant safe during his detox program. The Applicant claimed he continued to receive 1:1 support (at the standard rate) after the completion of the detox program to the present day because the SILS provider, Chrysalis, considered there were safety concerns were the Applicant to reside with another participant. The Applicant contended his accommodation was now at risk of termination if the Respondent did not pay the outstanding money owed.
The Respondent contended that the provision of 1:1 24/7 SIL, with inactive overnight support should be provided for seven months. Following this, two hours per day of 1:1 SIL everyday with 1:2 SIL [that is, for two residents] at all other times with inactive overnight support should be provided for the following five months.
Alternatively, the Respondent considered it would be reasonable and necessary for a seven-month plan to be implemented, which would include standard intensity 1:1 SIL at all times with inactive overnight support and the capacity building-improved daily living supports also provided, pro rata.
During the hearing, the Respondent, in opening submissions, qualified the proposition that the Applicant could share his supports:
The Respondent does not say that [the Applicant] absolutely will be able to share his supports after a period of six or seven months. The Respondent says that the evidence indicates one to one SIL is reasonable and necessary for seven months, and it is difficult to see whether it will be after that.
The Respondent contended that since 1:1 SILS funding 24/7 for the plan dated 25 May 2022 was not deemed reasonable and necessary by the Respondent, reimbursement for the period 12 September 2022 onwards should be refused by the Tribunal.
Although the Respondent considered that the Tribunal had jurisdiction to determine whether the additional SILS support acquired after 25 May 2022 was reasonable and necessary, the Respondent contended there was insufficient evidence that the criteria for high intensity support, sought for the period of the detox, 12 September -7 December 2022, were met. For completion, the criteria are contained in the NDIS Pricing Arrangements and Price Limits (2023-24) and NDIS Practice Standards: skills descriptors; they are as follows:
(a) the applicant exhibited challenging behaviours once per shift (six hours) and the nature of those behaviours;
(b) the applicant required intensive positive behaviour support to manage those behaviours and the nature of the positive behaviour support;
(c) the applicant required assistance from a disability support worker who has one or more of the high intensity support skills;
(d) the applicant's support workers in fact had one or more of the high intensity support skills and, if they did, what support skills; and
(e) the applicant's support workers implemented the high intensity support skills during that period of time.
The Respondent also contended that the claim for reimbursement for 1:1 standard intensity SILS from 8 December 2022 until 9 November 2023 should be refused under s 46(1) of the Act, because the Respondent had not determined it to be reasonable and necessary and a person who receives NDIS funds on behalf of a participant:
must spend the money in accordance with the participant’s plan.
Accordingly, the Respondent contended the Tribunal should refuse reimbursement of funds expended for 1:1 standard SILS before 9 November 2023. However, the Respondent also contended that if the Tribunal were satisfied that reimbursement should be granted, the relevant period is 12 September 2022- 9 November 2023 for a total of 1,751 hours. This calculation is made based on the number of hours of 1:2 SIL support the Applicant has received funding for during that time and at rates which were current at the time.
The Respondent contended that the Tribunal is required to be positively satisfied (i.e. to feel an 'actual persuasion of its occurrence or existence', as established in the Briginshaw v Briginshaw (1938) 60 CLR 336 (‘Briginshaw’) that each criterion in s34(1) of the Act has been met in respect of each of the supports the Applicant seeks to have included in his statement of participant supports. In accordance with this principle, the Respondent submitted that the Tribunal cannot be positively satisfied that the Applicant requires 1:1 supported independent living (SIL) for more than seven months.
THE ISSUES
The parties agreed that the capacity building supports offered by the Respondent were, in conjunction with 1:1 SILS support 24/7, reasonable and necessary for the Respondent. The parties disagreed about the timeframe; whether 1:1 SIL it should be for seven months, or twelve months of the Applicant’s plan.
The reimbursement issue is whether the provision of 1:1 SIL support, 24/7, was a reasonable and necessary support in the plan which commenced 25 May 2022, or if s 46 of the Act, which required the provider, Chrysalis, to spend the money in accordance with the participant’s plan, effectively precluded reimbursement until the requested SIL 1:1 support was confirmed to be reasonable and necessary. The Tribunal notes that at the time, the plan required the Applicant to live with another participant so that SILS funding of 1 support worker could be accessed by both participants.
Further to determining whether reimbursement of SILs funding should be paid there is the issue of the period for which it should be paid and at what intensity of support.
EVIDENCE RELIED UPON
The Tribunal has had regard to various material before it, including:
a)Respondent’s Statement of Facts, Issues and Contentions filed 16 August 2023
b)Applicant’s Statement of Facts, Issues and Contentions filed 27 September 2023
c)Respondent’s reply to Applicant’s Statement of Facts, Issues and Contentions filed on 17 November 2023
d)Joint Hearing Tender Bundle filed by Respondent on 22 November 2023 (includes T-Documents filed on 29 August 2022
ORAL EVIDENCE
The Tribunal heard oral evidence from the following witnesses:
a)Mr Ralph Mueller, Applicant’s father
b)Ms Tanya Denny, Director of Chrysalis Accommodation
c)Ms Katherine Savidis, Behaviour Support Practitioner
d)Ms Ruth Howell, Occupational Therapist
e)Ms Basia Kmita, Occupational Therapist
CONSIDERATIONS
1:1 SIL Support for which period
The Tribunal was asked to decide whether the Applicant should be provided with 1:1 SIL support 24/7 for seven months, during which time a review of the Applicant’s progress is to be made (Respondent’s proposal), or whether the provision of 1:1 SIL support, 24/7, for twelve months (Applicant’s proposal), is the correct or preferable decision. That is, for which period is the SIL funding a reasonable and necessary support. For the remaining five months of the Applicant’s plan, the Respondent proposed the Applicant would continue to receive 1:1 SIL support for two hours daily but be expected to share SIL support at a ratio of 1:2 people for the remaining time each day, with inactive overnight support, 24/7. That is, the Applicant would be expected to share his accommodation with a co-resident.
The Tribunal heard from several witnesses who confirmed that the Applicant had received only limited capacity building supports over the past two years and that it would take some time to re-engage with his psychologist and establish rapport with a new psychiatrist. Further, that the Applicant had resisted many capacity building supports in the past, such as physiotherapy and occupational therapy, and declined to answer calls from therapists attempting to see him. Walking the OT assistant’s dog was one of the few exceptions to this; being prepared to go to the toilet regularly, when instructed, was another. The Applicant’s behaviours of concern were another issue; he was known to defecate when asked to do something he did not want to do, his father describing this as:
“sometimes he will do it deliberately in front of somebody just in spite”.
The Applicant’s father also told the Tribunal this incontinence began in 2017/8, when he was about 27 years old. It appears, from the evidence, to be a combination of physical incontinence and a behaviour of concern.
Witnesses described the Applicant as becoming angry and aggressive with staff if he was not able to play his X Box continuously. The Applicant’s skin picking, defecation and urination also consumed much of the support staff’s time, so that they were not always able to help with capacity building tasks set by therapists.
Tanya Denny, the Director of Chrysalis Accommodation and Clinical Director for Chrysalis Therapeutic Support Services, which provides SIL support to the Applicant, considered his defecation and urination incontinence and behaviours of concern were an ongoing problem:
Other participants in our SIL programs sometimes are affected by how [the Applicant] might smell or, you know, they notice. People notice. And because sometimes [the Applicant] doesn’t, and he gets quite angry if it’s pointed out to him that his soiling might be affecting other people.
During the nine- or ten-day trial of shared living which Chrysalis attempted in January 2023, Ms Denny described it as:
Pretty unsuccessful. Both men reacted really adversely to having – to sharing the house together. Ryan really struggled around the other person, you know, touching his stuff, talking to his workers, you know. It really – and both of them had claimed, they both claimed to have mental health crises during this time as well.
The Respondent argued that the issue was not whether the Applicant could be left alone for any period but whether he should be able to share the SIL support provided with one other person. The Tribunal reiterates, for completion, that the Applicant would be expected to live with one other person in order to share that support for all but two hours of the day, when the Respondent had agreed to provide him with 1:1 support.
The Applicant’s behaviours of concern were significant enough for the Applicant’s supervising OT, Ruth Howell, to recommend that the Applicant remain a sole resident; as she told the Tribunal:
“the support workers are literally spending all day cleaning up blood and faeces and urine throughout the whole house…I put one-on-one for a number of reasons. I just don’t think that it would be appropriate for him to share and another person to have to deal with that…
So you know, if his support workers are spending all day cleaning sheets and cleaning incontinence and, you know, trying to calm [the Applicant] down from escalating – they’re not working on [the Applicant] getting up and making nice cups of tea and making meals or, you know, going out to social activities…If you’ve not got that basic self-care and everything under control, you can’t actually progress up to more high-level things”.
The Respondent did not disagree that the Applicant’s behaviours were challenging and might well discourage another person from living with the Applicant, but submitted in opening submissions that it was reasonable to expect that:
with further capacity building support, [the Applicant’s] functional capacity and independence will continue to improve. Accordingly, … it is the respondent’s position that [the Applicant’s] cognitive and functional capacity should be reviewed after receiving increased capacity building supports for a period of six months to determine the reasonable and necessary level of supported independent living – or SIL support – that he requires. The respondent submits that it would be reasonable to continue [the Applicant’s] one to one SIL for an additional month after that to allow these assessments to be undertaken and reviewed.
The Respondent told the Tribunal that it was not being contended that the Applicant would:
“absolutely…be able to share his supports after a period of six or seven months”
But that the evidence indicates:
“one to one SIL is reasonable and necessary for seven months, and it is difficult to see whether it will be after that”.
The Respondent relied upon the evidence of the independent OT, Ms Basia Kmita, who assessed the Applicant over a two-hour period and also consulted with his parents. She considered that six months with increased capacity building supports would be long enough to determine the level of SIL support he required in the future.
As Ms Kmita wrote in her report, the Kmita Report at (6) (a) (a):
It is recommended that the applicant does require 1:1 SIL support between 22-24 hours per day for a period of up to 6 months. This is to ensure the recommencement of other treatment recommended including: Psychology, consultation with a Psychiatrist and commencement of Occupational Therapy services.
The Tribunal found Ms Kmita to be a straightforward witness who genuinely believed that the Applicant would respond to capacity building supports and was motivated to do so in his discussion with her, telling the Tribunal that he was:
“crying out to be independent”
But that:
“things are done for him and that’s what’s making him angry”
During cross examination, Ms Kmita conceded that this was based on his self-reports. She also said that his carers could set:
“little goals such as setting up a timer to control his gaming use…smaller steps will lead to bigger steps”.
She demonstrated his capacity for improvement by asking him to don a vest, a task she described as a:
“little goal”
And one he was not previously able to do but did so for her, in her presence. She told the Tribunal she found him:
“definitely willing to participate”,
which is contrary to the evidence provided by his supervising OT and SIL provider.
The Respondent relied upon the vest example to contend that the Applicant would respond to capacity building therapy and, as the Respondent made clear in closing submissions, there had been insufficient support provided to date. This was not disputed by the Applicant for the reasons already explored.
The OT, Ms Howell, was asked what she thought of Ms Kmita’s proposal for increased capacity building supports and responded:
“he could have had weekly or fortnightly therapy for an hour with an OT or an allied health assistant, and then the support workers would follow up on those goals, do the practice, do the homework,[ ideally,] but … that hasn’t happened”.
Ms Kmita told the Tribunal that his incontinence:
“needs to be managed by an incontinence specialist”
Although no recommendation was made to this effect in her written report, instead she noted incontinence was likely to occur intentionally during gaming and recommended supervision, verbal prompts and incontinence pads.
The Tribunal finds, based on the evidence provided, that there was no disagreement between therapists and those responsible for his supports about the need for improvement in his living skills (and particularly his behaviours of concern) before the Applicant could live with another person. There was also general agreement that he needed more capacity building support and had the potential to improve if he engaged. The identified capacity building supports have been agreed by the parties and play no further part in these deliberations.
The Applicant’s motivation to reduce his behaviours of concern emerged as a significant factor over which there was disagreement between the independent OT, Ms Kmita, and his treating team. Overall, the Tribunal considers that Ms Kmita’s evidence was heavily reliant on the Applicant’s account of his life, accepting his explanations and the declaration that he wanted to change, at face-value. Those who had worked for longer with the Applicant believed his explanations were often based on what he thought the listener wanted to hear and, with the exception of his behavioural specialist, they considered him lacking in motivation to change. On balance, the Tribunal prefers the evidence of those therapists, such as Ms Howell, who had observed him over a longer period, noting that, even so, most of the expert witnesses, including Ms Kmita, were uncertain about the Applicant’s likely progress over the next seven months of his new plan. The Tribunal therefore accepts that consistently motivating this Applicant to change, and then engaging with him consistently to achieve change, would be a slow process.
The Tribunal also recognises that the motivation and capacity of the Applicant’s care workers to diligently implement strategies developed by therapists when much of their time is spent cleaning up blood, urine and faecal matter in the Applicant’s home, will be another limiting factor on the rate of reduction in behaviours of concern.
The Kmita report had explicitly nominated a six-month period in which capacity building supports would be provided, to be followed by a review. The Respondent said this was “in part, to ensure Ryan does engage with capacity building supports”. When asked why she had recommended a review at six months, Ms Kmita advised the Tribunal that this was:
“purely as a suggestion to see if it makes a difference”… “to see what he now needs”.
When asked what she would recommend if, at the end of six months, there was not a significant change in his overall functioning she said
“you would go back to the psychiatrist’s reports, the psychologist’s reports and see if other therapies are necessary…[but] “twelve months is a long time”.
While Ms Kmita, in evidence, suggested that he “might be able to” live with SIL supports provided at the 1:2 ratio she qualified her advice:
“he may be able to live with another individual, but he has to be ready”.
She agreed it was necessary to be sure before his level of support was changed.
Ms Howell, when asked about the six month review, told the Tribunal that intensive rehabilitation had not been possible in the past “because of his behaviours” and:
“ I just don’t think six months is enough time to get that done. I don’t have a crystal ball. I don’t know how you can actually pick a period of six months to make that assumption that he’s going to improve enough to share with someone in six months’ time given all his complex disability needs”.
Ms Denny had described the failure of the shared accommodation trial which had occurred earlier in the year and considered that a future trial would require intense planning, reduced behaviours of concern and reduced soiling. This would need to occur during those six months of capacity building, along with relocation to a new home so that the Applicant would not be as territorial about sharing his living quarters with another. She told the Tribunal:
“ we would need to set up another house for him…for him it would need to be a bigger home, with separate living areas… so new house, a long transition where he’s development a relationship with someone where they establish the kind of guidelines for the house…. I would say six to 12 months would be needed”.
Ms Savidis, the Applicant’s treating Behavioural support specialist, confirmed that although the Applicant would go to the toilet when taken, he did not have:
“a specific understanding that he needs to and take himself. So that’s a skill that they’re trying to develop…he wasn’t able to meet the criteria to use the toilet once per day”.
She told the Tribunal that even when highly motivated, he had not been able to take himself to the toilet and that his incontinence often triggered behaviours of concern such as aggression and remained a major barrier to living with another person.
The Applicant’s skin picking was addressed, she said, by “training of the staff to reduce the opportunity for him to do that”…”seeking to reduce it …would be a big body of work”.
Overall, Ms Savidis considered it would be:
“at least twelve months of planning before I would even consider it appropriate to trial a person”.
In summarising Ms Savidis’ evidence in closing submissions, the Applicant told the Tribunal:
“for the period 14 July ’23 to 14 November, verbal aggressive behaviour still occurs once every 2.7 days, physical aggression every 1.7, skin picking 2.2 and self-care refusal every day. [Ms Savidis] also gave evidence that only in the last week [the Applicant] has unfortunately been excluded from his day program for now, due to behavioural issues that arose connected with his incontinence”.
The Respondent submitted that the evidence provided suggested that the Applicant’s therapists and providers considered he could not share accommodation because he:
“he has not been successful in doing so in the past”,
This was a reference to the failed trial of shared accommodation which occurred in January 2023. The Tribunal does not share the Respondent’s view of those witnesses; rather, the Tribunal understands from their evidence that each person based their reservations upon the considerable planning time and the intense support required to prepare him for sharing, particularly overcoming his incontinence.
Further, the Respondent submitted that, as the Applicant’s provider conceded, “planning was not optimal”, however witnesses such as Ms Denny told the Tribunal that she recognised the rushed planning had contributed to the failure of the trial and this had confirmed for her the importance of careful planning for any future trial. The Respondent also submitted that the provider and support staff had already enjoyed over 15 months to find a suitable housemate, address his continence issues and behaviours of concern, so that the transition to shared accommodation contemplated in the Applicant’s plan of May 2022 should now be able to proceed. Again, the Tribunal considers the need for a continence practitioner was recognised by these witnesses as a pre-requisite for the trial. This appears to have also been recognised by the Respondent, who confirmed, during the hearing, that such a support would be provided. Further, the Applicant’s SIL provider, Ms Denny, told the Tribunal they had been looking for a suitable co-tenant for 10 months but recognised, like other witnesses, that few would be willing to share with the Applicant while he was incontinent, picked his skin and was in a house he now considered, after two years of single occupancy, to be his territory. Considering all the evidence, the Tribunal finds the provider and other staff wanted to address his behaviours of concern before trialling a co-resident and that, without additional capacity building supports, including a continence practitioner, they were unable to advance to the point where planning the transition stage to shared accommodation was practicable.
The Respondent also submitted that the Applicant’s functionality had declined since he had lived in single accommodation and there was evidence from witnesses that this was the case. The Tribunal accepts this and the Tribunal’s conclusion that “there is no evidence before this Tribunal that demonstrates that one-to-one SIL is good practice…the Tribunal should not be satisfied that the request is likely to be effective and beneficial” (in accordance with s 34 (1) (d)) nor that 1:1 SIL represents value for money (in accordance with s 34 (1) (c). The Respondent went on to conclude that the provision of 1:1 SIL in the Applicant’s case:
“has resulted in decreased independence and an additional reliance on other people”.
While the Tribunal accepts the proposition that 1:1 SIL, for many reasons, may not be ideal for this Applicant, the Applicant relied on s 3 (1) (e), Objects of the Act, to enable the exercise of choice and control, and s 4, General Principles, to argue that the Applicant may choose to live alone. Although this might apply to all applicants, in theory, the Tribunal is more persuaded by the evidence of the Applicant’s SIL provider, supported by members of his treating team and his family, that he could live with one other person, but that this was not practical while the Applicant had significant behaviours of concern, for reasons of safety and in fairness to any co-resident.
The Tribunal finds, based on the evidence provided, that the Applicant’s current sole residency should be regarded by the Applicant as a temporary phase during which time his capacity to live with other people is rehabilitated to the point where it is feasible for him to do share. It was evident during the hearing that none of the witnesses had a clear-eyed view of how this rehabilitation was to occur, other than Ms Kmita, and even she provided only general advice.
Since no contemporaneous evidence was provided by a psychiatrist or a psychologist which might have provided additional insight into a potential rehabilitation program, the Tribunal accepts the advice of Ms Kmita, who said that once the Applicant was being seen regularly by a psychiatrist and psychologist and his progress monitored by a collaborative treating team, it would be possible to modify his supports and introduce new ones. If the Tribunal were not to accept this advice, the only other conclusion it could draw is that there is no possible pathway for improved functional capacity and the Applicant’s life must remain as it is. The Tribunal, mindful of the evidence that the Applicant was once more independent than he is now, appreciates there is real potential for improvement.
Essentially, the Tribunal, having considered the evidence of the Applicant’s current capacity building efforts, the Respondent’s submissions that those efforts were insufficient to enable the Applicant to rebuild his functional capacity, and finding the explanations of his therapists for this insufficiency acceptable, the Tribunal finds there is considerable agreement between the witnesses about the need for a desirable pathway for this Applicant. None of the witnesses said they considered it was acceptable for the Applicant to remain incontinent and to pick his skin, or that it was reasonable for another resident to share living with him in these circumstances; it was the degree of reservation about a path forward, particularly the time capacity building would take, which varied.
Several witnesses told the Tribunal that to provide 1:1 SIL support for only seven months would create uncertainty. As the Applicant said in closing submissions, it leads to:
“insecurity of long term funding”.
Since the Respondent has agreed to provide capacity building supports for the entire 12 month period of the Applicant’s plan, the Tribunal does not accept there would be insecurity concerns about capacity building supports, appreciating, as the Applicant said:
Seven months of funding realistically only allows for short-term goals to be set and evaluated. The Applicant accepts that progress updates from health professionals is appropriate. However, the Applicant does not accept that it is necessary to limit his NDIS plan in order to simply receive progress updates.
The Respondent submitted that the uncertainty that arose from the shorter plan period were:
“business considerations that are to be addressed by the respondent’s provider. They are not the responsibility of the Agency to fund. The relevant position for this is 34 (1) (f).”
While the weight of evidence suggests that it is unlikely the Applicant would be ready to live with another participant eligible for 1:2 SIL in seven months, given the time it would take from the issuing of this decision to the establishment a collaborative capacity building regime and then its successful implementation, there is some doubt about this, as expressed by each witness to a varying degree.
The Respondent submitted that the Tribunal must be positively satisfied that anything longer than seven months 1:1 SIL would be reasonable and necessary; in accordance with Briginshaw. the Applicant considered the Respondent should be able to demonstrate the reverse, that seven months or less is reasonable and necessary. Further, the Applicant submitted that as Mazy and National Disability Insurance Agency [2018] AATA 3099 established, the Respondent can still request information under s 53 (2) (a) of the Act without mandating a review by limiting the plan length to only six or seven months. The Applicant also relied upon the Operational Guidelines, which state that a 12-month plan is standard practice for someone needing behavioural support.
The Applicant submitted that the Respondent’s proposition did not meet the requirements of r 3.1 of the support rules, which require the consideration of comparable supports which would achieve the same outcome at a substantially lower cost. The Applicant submitted no evidence had been put forward as to comparable supports. The Respondent submitted that the comparable support was 1:1 SIL, for six months.
The Applicant submitted there were risks to him and to others if the Applicant were required to share accommodation before he was ready and that the evidence provided did not satisfy R 5.1 (a).
Having considered all the evidence, the Tribunal finds that the parties agree on the need for a 12-month program of capacity building, but that a timely assessment by a continence specialist was first required, which is now being provided by the Respondent.
There was also agreement between the witnesses, including Ms Kmita, that uncertainty exists about the likelihood of the Applicant being ready to share accommodation in seven months. The Tribunal finds that it is uncertain that the Applicant will be ready to live with another resident in seven months, but not impossible.
Further, the Tribunal finds there is doubt that a collaborative program of capacity building, with the ongoing engagement of a psychiatrist and psychologist will be established within seven months in the Applicant’s location and with his complexities.
The Tribunal concludes that for practical purposes, it would be equally acceptable for the Applicant to receive 1:1 Sil 24/7 for seven months or for 12 months, on the assumption that the seven months period did not commence until the capacity building supports were in place. The Respondent had been at pains to point out the importance of a review after six months to the determining of the Applicant’s future SIL needs. The Respondents’ Reply Statement of Facts, Issues and Contentions (SFIC) submitted:
“the respondent did not determine that “the applicant must live with another resident””
and
“the respondent submits that Ms Kmita’s conclusions do not go so far as to suggest that in six months’ time the applicant will be able to share his accommodation, rather that his progress be reviewed at that point in time”…
“the applicant may safely transition from SIL supports at 1:1 to 1:2 ratio if the applicant’s goal setting is reviewed, he is involved in the decision making around the transition, he engages in psychology treatment and behavioural therapy, as well as social interactions within his home and community, to ensure that his cognitive and functional needs are met before he transitions into shared SIL”
In opening submissions, the Respondent reiterated this point:
“the respondent does not say that [the applicant] absolutely will be able to share his supports after a period of six or seven months”.
On the basis of these assurances, it is fair to assume the Respondent accepted that if, after six months of capacity building support, the Applicant were still unable to share his accommodation, the 1:1 SIL provision would continue until this milestone had been achieved, at least for another five months.
The Tribunal considers that the Applicant’s preference for 1:1 SIL for 12 months is equally unsupported by evidence that he will require it for the entire year. Based on the Applicant’s history and the absence of capacity building supports, there is the possibility the Applicant might respond well to engagement with a suite of capacity building supports, enjoy a reduction in his behaviours of concern and be ready to live with another resident with 1:2 SIL before the end of the 12-month plan. Were this to happen, the provision of 1:1 SIL (for the entire 12 months) could not be considered value for money. The Tribunal appreciates the Applicant’s contention that there may be uncertainty created but considers this will not affect the provision of capacity building supports, which are agreed to be in place for 12 months.
Both the twelve-month and six-month periods proposed for 1:1 SIL carry risk because there is considerably uncertainty both about the Applicant’s capacity to respond to capacity building supports and his rate of response. Indeed, there is even doubt about the availability of those identified supports and the likely date at which they will all be in place and able to be integrated to provide optimal support, as envisaged by Ms Kmita.
The Tribunal accepts the Respondent’s concerns that the Applicant’s functionality has deteriorated in recent years, with insufficient effort made to address this deterioration, which is not disputed by the Applicant. In these circumstances, on-going review of the Applicant’s progress is essential.
In accordance with Briginshaw, requiring that the Tribunal feels:
“an actual persuasion”
the Tribunal finds it is unable to be satisfied that 12 months of 1:1 SIL is reasonable and necessary, so satisfying s 34 (1).
The Tribunal concludes that the provision of 1:1 SIL for six months is reasonable and necessary during a period when the Applicant will receive an incontinence assessment and then capacity building supports for 12 months. The Tribunal is conscious that difficulty in arranging, and delay in the commencement of, these supports may occur, but is not certain to occur. The Applicant is free to reapply for review by the Tribunal if the Respondent declines to adjust the provision of 1:1 SIL support should such delay occur. Conversely, the Tribunal concludes there is insufficient evidence that 1:1 SIL for twelve months is reasonable and necessary.
Reimbursement
The Tribunal does not propose reapplying all the evidence provided in consideration of 1:1 SIL in the preceding paragraphs to the question of reimbursement.
The Respondent submitted in its closing submissions that a request for reimbursement was outside the Tribunal’s jurisdiction but that:
it does have the power to determine that a support is reasonable and necessary in any plan it has jurisdiction to review. If the Tribunal finds a support is reasonable and necessary in accordance with the Act, …then the Agency is required to reimburse that participant.
What the agency considers is necessary to provide reimbursement is solely a matter for itself and its auditors.
The parties agreed and the Tribunal accepts that the Tribunal had jurisdiction to determine that the support was reasonable and necessary because it was part of the decision under review of 25 May 2022, when 1:1 SIL support was changed to 1:2 SIL.
The Tribunal notes that the Respondent confirmed, in the cross examination of Ms Denny, that the Applicant’s supports were reduced on 25 May 2022. The Tribunal further notes that the Applicant lived with a co-resident for nine days in January, but that the parties did not seek to have this period excised from the estimate of reimbursement.
The Applicant requested reimbursement of the difference between 1:1 SIL high intensity and 1:2 SIL standard level for the period 12 September 2022- 7 December 2022, the detox period, and from 8 December 2022 to the Tribunal’s decision date at the standard intensity level. The Respondent agreed that those were the relevant dates. Subsequently, the Respondent agreed to provide 1:1 SIL standard intensity for seven months, commencing 9 November 2023 and the Tribunal therefore considers the two relevant periods under consideration to be:
- 12 September 2022- 7 December 2022 1:1 SIL at high intensity and
- 8 December 2022- 8 November 2023 at standard intensity.
Period of 12 September 2022- 7 December 2022
The Respondent opposed the reimbursement of support at the high intensity rate for this period, the period of the detox trial, contending that there was insufficient evidence provided that the requirements of high intensity SIL had been met, as listed in the NDIS Price Guide and NDIS Practice Standards. The following paragraphs deal with each of those NDIS Price Guide requirements in turn.
NDIS Price Guide (a) and (b): The Applicant is required to exhibit challenging behaviours once per shift (six hours) that require intensive positive behaviour support to manage.
The Respondent claimed no documentary evidence was provided that the Applicant had exhibited behaviours of concern at least once every six hours during the detox period, or that positive behaviour support to manage those behaviours had been provided.
The Respondent relied upon the evidence from Chrysalis and from Ms Savidis, who told the Tribunal that:
Ryan’s behaviours of concern reduced during the time of October and during the detoxification program generally. Ms Denny gave evidence that Ryan’s behaviours did not amount to psychosis and that they did not increase anywhere near as much as she anticipated that they would.
The Applicant relied upon the evidence of two witnesses, Ms Denny and Ms Howell, who gave evidence that Ryan’s support workers were required to manage challenging behaviours at least once a day, and Ms Howell’s evidence that this was “even up to several times a day”.
The Applicant submitted that not all incidents would give rise to documented reports and that in any case:
“The focus is on the management and the assistance. Not necessarily on the actual behaviours being documented in an incident report or occurring”. In the Applicant’s view, the provision of high intensity SIL was precautionary:
“That support was there to manage those risks should they arise. That was what the high intensity support was for”.
The Tribunal notes the terms of the NDIS Pricing Arrangements, while not retrospective, are not prospective either, since the assistance “is required to manage challenging behaviours that require intensive positive support” (present tense). As the Respondent contended, some evidence is therefore required. While it might have been reasonable to assume behaviours of concern would increase during a reduction in anti-psychotic medication, at the very least, the Applicant was also required to provide persuasive evidence that this had occurred and that intensive positive behaviour support was provided at least once during every shift. The Applicant’s Clinical Detox Overview plan included the requirement that he be seen by unidentified medical staff daily and that all SIL team members be assessed as competent in implementing the detox plan, but nothing to suggest, as the Respondent concluded, that the support workers implemented:
“the skills or positive behaviour support to manage those behaviours to a sufficient standard that could satisfy the Tribunal that the high intensity supports were absolutely required”.
The Applicant did not provide evidence that behaviours of concern were more frequent than they had been before the Detox, when the Applicant had relied upon standard 1:1 SIL, or that the support provided by the staff when these incidents occurred amounted to “intensive positive behaviour support” for behaviours that would, as the Respondent contended:
“fall outside the scope of the ordinary standard of support intensity”.
The Applicant also submitted that he required high intensity support for:
“the period he underwent his risperidone detox which included a period of planning and support getting him ready prior to the reduction in the medication itself”.
The Tribunal notes NDIS Price Guide requirements for high intensity supports do not include any planning period for implementation and therefore does not consider the planning period of relevance to the level of SIL funding.
The Applicant also relied upon the evidence of Ms Denny that during the detox period there was much closer monitoring of Ryan, including a significant amount of data collection:
“to manage the potential risk to his health such as his food intake, soiling frequency, his mood and any adverse events. I refer here to pages 249 10 to 254 of the hearing bundle, which is the detox plan, as to the adverse medical events which would have required closer and more intensive monitoring of Ryan.”
The Respondent contended that monitoring:
“does not amount to a high intensity support”.
The Tribunal accepts the Respondent’s contention that the requirements of high intensity SIL are, as the Applicant said, concerned with managing incidents of concern, rather than monitoring or recording them.
The Tribunal finds, on the balance of the evidence provided to it, that the requirements of the Price Guide, (a) and (b), have not been met for high intensity.
The NDIS Price Guide (requirements (c) and (d)) reflect upon the capacity of support workers, who are required to have one or more high intensity support skills and have implemented these during the relevant period.
The Respondent submitted there was insufficient evidence that the Applicant received support from staff with high intensity skills:
“Ms Denny gave evidence that during the course of the detoxification program Ryan was supported by medical staff, however it is unclear…what qualifications that staff had and what assistance that staff provided to Ryan during the detoxification program”
Additionally, the Respondent submitted it had not been demonstrated that during the relevant period of time, the Applicant’s support workers implemented the high intensity support skills.
In final submissions, the Applicant relied upon an update report from Monique Collie, then team leader, which stated:
“during the month of October during the detox staff were closely monitoring Ryan’s blood pressure, temperature, respiration and oxygen levels.”
For reasons previously given, the Tribunal does not accept that monitoring basic health indicators satisfies the NDIS Guidelines for high intensity support, which requires evidence of management of conditions.
The Applicant also relied upon the evidence of his history of falls, but no evidence was provided that the support staff had high intensity skills which would have assisted with falls during the detox period, had they occurred.
Overall, considering all the evidence provided, the Tribunal finds there is insufficient evidence to demonstrate that 1:1 SIL provided during the detox program (12 September-7 December 2022) meets the Guideline requirements for high intensity support. However, that does not mean that 1:1 SIL at the standard level was not required during this period. The Respondent submitted in its opening submissions that no reimbursement should be provided at all, because the Respondent had not found the requested support to be reasonable and necessary under s 34 of the Act and, relying upon s 46 (1), that the Applicant was required to “spend the money in accordance with the participant’s plan”. Accordingly, the Tribunal finds it is appropriate to now consider whether the provision of 1:1 SIL at the standard level from 12 September 2022 until 9 November 2023 was a reasonable and necessary support. Since submissions were confined to the period 8 December until, effectively, 9 November 2023, the Tribunal will consider the question of reimbursement based on submissions regarding the period commencing 8 December but will apply them to the period commencing 12 September 2022.
The Applicant contended that the provision of 1:1 SIL at standard intensity from 8 December 2022 until 9 November 2023 was a reasonable and necessary support, given his complex disabilities and behaviours of concern.
The Respondent, having relied upon ss 34 (Reasonable and Necessary Supports) and s 46 (1) (the provider must comply with the Applicant’s plan), also contended in closing submissions:
“one-to one SIL is not reasonable and necessary from 8 December [2022] until 9 November 2023 because the evidence does not demonstrate that during that period of time he engaged in sufficient capacity-building supports”… “had he engaged in the capacity-building supports recommended by his treating practitioners and/or that were considered to be reasonable and necessary, he would not have required 24/7”.
The Respondent provided ample evidence of the Applicant’s failure to engage with capacity-building supports in that period, which the Applicant did not dispute, although contended there had been several reasons for this which were often beyond the Applicant’s control.
Fundamentally however, the Applicant rejected the Respondent’s contention that had he engaged with capacity building, he would not need 1:1 SIL, claiming in closing submissions that the logic linking the absence of capacity building to the possibility he would now not need 1:1 SIL 24/7 was:
“just pure speculation”
And that it was:
“almost punitive”
on the Respondent’s part.
The Tribunal finds, considering the evidence, that there is insufficient evidence to support the Respondent’s contention that the Applicant would not have needed 1:1 SIL if the capacity building supports had been in place. There was substantial evidence that created doubt about the Applicant’s capacity to respond to additional supports and the rate at which he might respond. The Respondent’s contention is therefore not accepted by the Tribunal.
The Applicant also relied upon the Respondent’s decision to recommence the funding of 1:1 SIL 24/7 from 9 November as reasonable and necessary, to contend:
The [Respondent] has reconsidered their position and now agrees that 1:1 is necessary.
The Respondent submitted that the difference in approach was for the:
“very reason that the respondent has made a suite of offers for capacity-building supports that can be engaged alongside receiving one-to-one SIL which was not the case between 8 December and the date of the Tribunal’s decision’.
The Tribunal accepts the evidence that the Applicant had not received sufficient capacity building support during the period in question but does not consider that to be the test of whether such a support, 1:1 SIL 24/7, was reasonable and necessary, when the alternative was to place a co-resident with the Applicant during that period, without capacity building supports.
Furthermore, if the previous trial had been repeated later in 2023, several witnesses told the Tribunal that a co-resident would have been in danger, or endangered the Applicant, and, for several reasons already traversed in this decision, the requirements of Rule 5.1 (a) would not have been met. It would also have been unreasonable to place another eligible person into a home where the co-resident’s defecation and skin-picking were not resolved. Ms Denny also told the Tribunal that they had been searching for a suitable co-resident, but without success.
There was considerable evidence that the trial of co-residency, a necessary condition if 1:2 SIL were to be provided, was a failure and any future trial would require careful planning. The Tribunal accepts that conclusion, which the Respondent supported, and finds, based on the evidence, that until capacity building supports such as those outlined by Ms Kmita, are introduced, monitored and adjusted as necessary until the Applicant’s capacity has met an acceptable level for cohabitation, that 1:1 SIL, 24/7, remains the only feasible reasonable and necessary support for this Applicant. The provision of 1:2 SIL for any period of the Applicant’s day necessitates a co-residency which, from the evidence available to the Tribunal, would not be beneficial to the Applicant and, without careful preparation, would satisfy the exclusions provided inf R 5.1 (a), that is, cause harm to the Applicant or pose a risk to others, and would not be funded.
CONCLUSION
The Tribunal concludes that it is reasonable and necessary for the Applicant to receive 1:1 SIL, 24/7, at the standard rate, for six months, plus a further month while a review of the Applicant’s progress is conducted. The Tribunal has concluded the Respondent will accept the outcome of that review and considers it is necessary that the plan remain of 12 months duration to ensure the capacity building supports are continued without uncertainty for providers and support staff.
The Tribunal concludes that the provision of 1:1 SIL 24/7 was a reasonable and necessary support for the duration of the plan commencing 25 May 2022 and accordingly that the Applicant’s provider is entitled to reimbursement of the difference between 1:1 SIL and the 1:2 SIL funding provided by the Respondent from the 12 September 2022, standard intensity, to 9 November 2023 at the prices applying at the time.
DECISION
Pursuant to subsection 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and remits the matter to the Chief Executive Officer of the National Disability Insurance Agency in accordance with the following direction:
a)The decision under review is varied to provide 1:1 SIL funding for a period of seven months, during which time the Applicant’s capacity to live with a co-resident is to be reviewed.
b)The Applicant’s SIL provider be reimbursed for the difference between 1:1 SIL and 1:2 SIL support provided between 8 September 2022 and 9 November 2023 at the standard intensity rate prices applying at the time.
I certify that the preceding 121 (one-hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Goward
.........................[SGD].............................................
Associate
Dated: 16 January 2024
Date of hearing:
20-22 November 2023
Counsel for the Respondent:
Solicitor for the Respondent:
Ms Alisa Green
Ms Shaana Dekker
Representative for the Respondent:
Ms Gabrielle Gutmann
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