Munday and National Disability Insurance Agency
[2018] AATA 355
•2 March 2018
Munday and National Disability Insurance Agency [2018] AATA 355 (2 March 2018)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2017/1720
Re:Gregory Munday
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Professor R McCallum AO, Member
Date:2 March 2018
Place:Sydney
The decision under review is varied as follows:
Instead of funding a Glide Centro, Mr Munday is to receive funding to purchase a Zoom ATV with a speed inhibiter preventing it from travelling more than 10 kilometres an hour
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Professor R McCallum AO, Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – hereditary spasticity paraplegias – powered wheelchair/mobility device – whether applicant’s preferred device can be used on public footpaths – whether support represents value for money – whether support is effective and beneficial having regard to current good practice – whether support is likely to cause harm to the participant or pose a risk to others – decision under review varied
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 33, 34, 100, 103, 209
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) rules 3.1, 3.2, 3.3, 5.1
Road Rules 2014 (NSW) rules 4, 15
Road Transport Act 2013 (NSW)
SECONDARY MATERIALS
Transport for NSW Centre for Road Safety, Motorised Wheelchairs
( viewed 15 February 2018
Zoomability Inc., Zoom a Swedish innovation made for joy and freedom( viewed 15 February 2018
REASONS FOR DECISION
Professor R McCallum AO, Member
2 March 2018
INTRODUCTION
The Applicant, Mr Gregory Munday, lives in rural New South Wales and he is aged in his thirties.
Mr Munday has Hereditary Spasticity Paraplegias (HSP). Put briefly, HSP is a group of inherited degenerative disorders characterised by impaired walking due to spasticity and weakness of the legs. The condition is generally progressive, with its symptoms worsening over time.
Mr Munday wrote a disability report dated 15 March 2017 which is before the Tribunal. Under the heading “About Me”, he wrote about his HSP as follows:
I suffer from Hereditary Spasticity Paraplegias. This is a neurological condition affecting the signals in my brain to control my body movements. This means that I don’t have the ability to move quickly and it takes 100% of my concentration to keep my balance and stay upright. It constantly feels like my entire skeleton is twisting around inside my skin – just imagine Stephen Hawkins. When I’m really twisted it causes severe migraines which can last for days. It also affects the reflexes in my lower body. I’m unable to wear shoes because it takes away my balance and what little feet movement. I have to keep me staying up. Even though my condition has spasticity in the name, it only refers to my movement but is no reflection on any mental issues. I have full intellectual capabilities and faculties.
Mr Munday has been in receipt of Disability Support Pension for approximately five years. He lives on his own with his dog and his cat in private rental accommodation. Mr Munday has applied for emergency housing.
Mr Munday used to drive a car, but owing to his HSP, he stopped driving in about January 2016. For the last two years he has been housebound and relies on friends to assist him with shopping and other chores.
Mr Munday Becomes a Participant in the NDIS
In October 2016, Mr Munday became a participant in the National Disability Insurance Scheme (NDIS) which was established by the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
His first participant plan commenced on 31 October 2016. This plan did not make provision for a motorised wheelchair.
On 20 January 2017, Mr Munday sought an internal review of his plan. On 8 March 2017, a delegate of the CEO of the National Disability Insurance Agency (NDIA) decided to alter Mr Munday’s plan.
The delegate wrote in part as follows:
On 20 January 2017 you requested an internal review of the decision by the National Disability Insurance Agency (NDIA) to decline your request for additional therapy support, assistive technology, home modifications, and capacity building support to assist with employment and support coordination. I have reviewed this decision.
Summary of your requests:
· Funding for Occupational therapist and Physiotherapist assessments
· Funding for a power wheelchair (Zoom power device)
· Funding for repairs to mobility scooter
· Funding for walking aids
· Funding for home modifications
· Funding for ongoing support coordination
· Support to find employment
…
Summary of findings against your reasons for review request:
Funding for home modifications
In our conversation yesterday, you demonstrated your intent is to relocate to more appropriate housing, stating that you have completed an application for social housing. I acknowledge that this application may take some time to be approved. I am not satisfied that there would be long term benefits to completing home modification to this property, as you plan to move from this residence in the future (NDIS Act 2013, Section 34(1)c).
The Occupational Therapy assessment, completed by Aimee Prosser reported that your current rental property has a number of access issues and is in a state of disrepair. In our conversation yesterday, you identified concerns with the bathroom and driveway. The evidence provided by Aimee identifies portable, low cost aids that should be implemented to ensure your safety in the home and maintain your independence until more suitable accommodation is sourced. This assistive technology is more reasonable to fund than home modifications. Funding will be included in your remediated NDIS plan to include funding for assistive devices as recommended by Aimee Prosser.
Funding for a powered wheelchair (Zoom power device)
The Occupational Therapy report dated 27 February 2017, completed by Aimee Prosser states that she does not recommend the Zoom power device, reporting that it is a recreational 4WD, that it does not meet your transfer requirements and is not able to be adjusted if your needs change. Aimee has reported that this power device also has a larger footprint when using indoors and is not safe for public transport. In our conversation yesterday you stated that you plan to alter the device to increase the speed above the Roads and Maritime NSW Safely standards. In my research of the Zoom power device from their website ( I note that it is described as an ‘all-terrain vehicle for recreational use’. I acknowledge your wish to have this Zoom device so you can participate in activities you enjoy, like going to the snow, beach and bush adventures. I am not satisfied however, that there is sufficient evidence to demonstrate how the Zoom meets your functional mobility requirements. As this device has also been identified as not the most suitable to meet your needs, I am not convinced funding this device is effective and beneficial with regard to current good practice (NDIS Act 2013, Section 34(1) d).
Your diagnosis of Hereditary Spastic Paraplegia (HSP) is described as being a degenerative disease from the HSP Research Foundation. In our conversation yesterday you confirmed this statement. As the assessment report from Aimee Prosser (OT) identifies that this Zoom power chair is unable to be altered if your functional needs change, it is not reasonable to fund this device. The support does not represents value for money in that the costs of the support isn’t reasonable relative to the benefit (NDIS Act 2013, Section 34 (1)c).
Funding will be included in your remediated NDIS plan for the Glide Centro TDS as recommended by Aimee Prosser (Occupational Therapist – Recovery Station). This wheelchair has been trialled and considered effective and beneficial and in regards to best practice (NDIS Act 2013, Section 34(1)d). This device will support you to access the community and participate in employment.
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Your NDIS plan will include funding for Coordination of Support services. Your Coordinator of Supports can assist you to access mainstream services to support you to find and prepare for employment.
For these reasons, my decision is to Vary the reviewable decision (S.100(6)b). This mean that part of your plan will change (It will now include funding for therapy support, assistive technology – including a power wheelchair, walking aid and tools to support independence with daily activities) but not all of your plan. The home modifications, funding for a Zoom power device and employment support, are declined.
This decision was implemented in Mr Munday’s second participant plan which commenced on 9 March 2017.
Mr Munday Applies to the AAT for Review
On 30 March 2017, Mr Munday applied to the NDIS Division of the Administrative Appeals Tribunal for review of the 8 March 2017 decision. He did not wish funding to purchase a powered wheelchair like the Glide Centro TDS which I shall refer to as the Glide Centro. Instead, Mr Munday asserted that he should receive funding to purchase a Zoom 4WD Electric All-Terrain Vehicle which I shall refer to as the Zoom ATV.
Under section 103 of the NDIS Act, the Tribunal has jurisdiction to review the decision of 8 March 2017 as it was made pursuant to subsection 100(6)(b) of the NDIS Act.
Counsel for the Respondent did not seek to argue that the Tribunal lacked jurisdiction to hear this matter.
THE RELEVANT LEGISLATION
Section 33 of the NDIS Act sets out the content of participant plans as follows:
Matters that must be included in a participant’s plan
(1)A participant’s plan must include a statement (the participant’s statement of goals and aspirations) prepared by the participant that specifies:
(a) the goals, objectives and aspirations of the participant; and
(b)the environmental and personal context of the participant’s living, including the participant’s:
(i) living arrangements; and
(ii)informal community supports and other community supports; and
(iii) social and economic participation.
(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:
(a)the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c)the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d)the management of the funding for supports under the plan (see also Division 3); and
(e) the management of other aspects of the plan.
(original emphasis)
Mr Munday says that in his circumstances, a Zoom ATV is a necessary and reasonable support which should be funded by the NDIA pursuant to subsection 33(2)(b) of the NDIS Act.
Subsection 34(1) of the NDIS Act sets out the criteria for the funding of necessary and reasonable supports as follows:
Reasonable and necessary supports
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the 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.
Of course, subsection 34(1) is only one provision in a detailed statute governing the NDIS. This provision must be interpreted having regard to the entire statute and subsection 34(1) must be read in conformity with the purposes and objects of the Act. The Parliament of Australia has expressly provided objects and principles in the NDIS Act to give guidance on the interpretation of the statute and these apply to the interpretation of subsection 34(1).
It is not necessary to set out the objects and principles in their entirety, but for the purposes of this decision I reproduce the following objects and principles.
3 Objects of Act
(1) The objects of this Act are to:
(a)in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
(b)provide for the National Disability Insurance Scheme in Australia; and
(c)support the independence and social and economic participation of people with disability; and
(d)provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and
(e)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports;
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(3) In giving effect to the objects of the Act, regard is to be had to:
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(b)the need to ensure the financial sustainability of the National Disability Insurance Scheme;
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4 General principles guiding actions under this Act
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(4)People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5)People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
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(11) Reasonable and necessary supports for people with disability should:
(a)support people with disability to pursue their goals and maximise their independence; and
(b)support people with disability to live independently and to be included in the community as fully participating citizens; and
(c)develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
(12)The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.
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(17)It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:
(a)the progressive implementation of the National Disability Insurance Scheme; and
(b)the need to ensure the financial sustainability of the National Disability Insurance Scheme.
WHEELCHAIRS AND MOBILITY VEHICLES
Mr Munday did participate in trials of wheelchairs at his home on 7 March 2016 and on 22 August 2016. On 7 March 2016, Mr Munday trialled the Glide Centro, the Quickie QM710 and the Zoom ATV. On 22 August 2016, Mr Munday trialled the Glide Centro and the Zoom ATV.
On 6 September 2016, Ms Kuba McCormack, who is a Senior Occupational Therapist with the Central Coast Local Health District, completed a request form to purchase for Mr Munday a Glide Centro TDS motorised wheelchair.
On this form, the wheelchair trials are described as follows:
f) Trial of recommended equipment: Describe duration, location and outcome of trial. If trial was not conducted provide details
TRIAL OF GLIDE CENTRO x2 150mins house, and local street to local shop/post box, steep ramp to enter shops 7/3/2016, 22/8/2016
GOAL and Equipment type:
Powered Mobility Devices for indoor mobility, access to local shops, post office, restaurants, buses, walking dog, bushwalking, snow access, and leisure/recreation
Date of trials: 22/8/2016 and 7/3/16 Length of trial: 150 minutes
Trial location: Client’s home and local area.
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Person’s present:
Greg Munday and Diane Munday (Client and mother)
Andy Fisher (Technical rep), Suzanne Kenny (OT) SWCO.,
Kuba McCormack (OT and Anne Rowlands (Service Coordinator) Community Allied Health Team
Specifics of trial:
Demonstration of Zoomability Zoom; 4wd, electric all terrain vehicle “Zoom is a light, small and electric all-terrain vehicle for recreational use” [SPECIFICATION] available on website
Information provided by SWCo rep that equipment was for use on private property, for recreational purposes. Discussed limitations eg can’t use in local community, in shops, bus etc. This would need to be funded privately by client or via NDIS or charity funds
GLIDE CENTRO XT version: Trialed for 90mins in client’s home/yard including entering property (unable to drive past bookshelf as was not moved by client as requested).
XT managed 1:2 ramp to vehicle (to simulate bus transport), and drove up/down steep block, across block through deep/unsealed ground. Greg was observed to drive in neighbourhood at top speed (10km/hr) with appropriate consideration of traffic and other pedestrians. Greg happy with same but concerned about top speed 10km/hr and threat from other dogs/“muggers”
Greg managed to following during the trial:
Trialed access to property including locking/unlocking and closing front door, and securing dog on lead
Access to toilet/bathroom, Kitchen and transfer to/from lounge (180 degree pivot transfer) simulated due to large furniture item in the way.
Drove WC over rough terrain and steep front yard with loose gravel, steep rolled gutters, driveway and kerb ramps, 8cm step down from front door
Tilt used to manage door locking and transfers
Independently assist to remove footplates and position feet with manual footplates
Outcome:
Greg managed this powered WC in his home, yard and local area with minimal assistance.
Recommendations:
Glide Centro, MWD power WC, XT model.
Subsequently this order to purchase a Glide Centro was cancelled as Mr Munday decided that he wished to purchase a Zoom ATV.
The Glide Centro
In a quote for the Glide Centro from the Wheelchair Company Pty Ltd, dated 18 November 2016, the features of the Glide Centro are set out as follows:
Model & features:
CENTRO Power Wheelchair
- Includes:
- Batteries and Charger
- Crash Tested 175 Kg
- RNET Controller LCD 120amp
- Electric & Manual Brakes
- Armrest Flip Up H/Adj. Sliding
- Vehicle Tie down Points
- Comprehensive Adj. Seating Frame
- Waterfall Armpads
- Puncture Proof Gel All Tyres
- 9” Front Castors
- 14” Wide Drive Tyres
- 8” Rear Castors
- CJSM-2 Joystick
- 42cm Low Seat Height
- Aluminium Seat Pan
- Centre Mount Footboard
- Calf Pads
- Australian Made
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Price
17,331.00
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ADDITIONAL FEATURES: Light Kit Complete
PG Lighting modules upgrade / CJSM-2 … $480.00
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PG Lighting Module ISM-LT … $550.00
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Lighting kit Glide (Front & Brake) … $460.00
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SEATING & POSITIONING:
Java Back Grande Deep 1622 … $1,385.00
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Cushion Jay Union 1620 … $442.00
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Headrest Cobra Mount -10” plush … $440.00
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Hip Belt Evoflex padded … $219.00
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Total Ex GST 21,607.00
GST 30.00
Total Incl GST 21,637.00
The Zoom ATV
In a quote for the Zoom ATV from the Wheelchair Company Pty Ltd, dated 17 January 2017, some aspects of the Zoom ATV are set out as follows:
MODEL & FEATURES:
Zoom 4x4 … 20,000.00
- Swivel Seat
Roho LTV Black Ultraleather cover (Seat pad) … [Quantity] 2 … 546.00
Delivery/Set up of Zoom … 300.00 … [GST] 30.00 … Total 330.00
A more detailed description of the Zoom ATV is set out on the manufacturer’s website ( [FACTS]
Zoom is a light, small and electric all-terrain vehicle for recreational use. It has a permanent symmetrical 4-wheel drive designed for use in rough terrain. The patented frame design ensures that all four wheels stay in contact with the ground regardless of the type of surface. This provides continuous 4-wheel drive performance under all conditions. As the Zoom chair is only a 220 pounds you can roll it around by hand and two men can lift it into a SUV, pick-up truck or small trailer but we recommend using the aluminum ramps we offer.
Zoom has a maximum speed of 12,6 mph and is suitable for use off-road, where one generally can walk without climbing. If local laws permit use on sidewalks, a ‘walking pace’ of 3 mph should be maintained. Helmet on is mandatory for safe use. Driving in sand, snow, mud, uphill or up sidewalks is a pure pleasure. You just need to keep clear from salt water. Recommended to mount front and back lights when driving in the dark. You drive a Zoom sitting down, using arms and hands only which makes it a safe, but extraordinary driving experience.
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TECHNICAL [SPECIFICATION]
Permanent symmetrical 4-wheel drive
Hub motors: 4 three phase 0-vxl [forward/reverse]
Aluminum wheels
Black mudguards
Maximum speed: [12,6 mph]
Acceleration: 0-12,6 mph [less than 2 seconds]
Torque: 4 x 52,5 NM [210 NM]
Output: 4 x 1000 W [4 kW]
Batteries: 2 x 48V / 10Ah [LiFePO4 Battery Cells]
Theoretical maximum range: [25 miles]
Number of charging cycles: >800
Charging time: approx. 2-4 hours
Frame: steel
Weight: [220 pounds]
Ground clearance: [7 inches]
Length with foot plate folded: [47 inches]
Length with foot plate unfolded: [53 inches]
Hight with steering lowered: [30 inches]
Width: [30 inches]
Track width, center/center: [26 inches]
Tires 16×2.5” air-rubber tire with cross tread pattern
Speed control: Motorcycle-style twist grip
Brakes: Two-circuit hydraulic, disk brake system
Cruise control
Fixed speed regulator (3 mph, 6 mph and 12 mph)
Recommended maximum weight of driver: [220 lbs]
Minimum age of driver [16 years]
Mandatory when driving: Always wear a helmet [use front and rear lights if driving in the dark]
Options:
Swivel seat
Expandable, aluminum ramps [for loading and unloading on a trailer or SUV]
Rubber insert for seat [for very thin adults]
Extension of foot plate [for tall adults]
Recommended accessories: Lights at the front and rear [recommended when driving in the dark]
The Zoom ATV and the NSW Road Rules
The Zoom ATV is described as an all-terrain vehicle with a top speed of 12.6 miles per hour, or 20.28 kilometres per hour.
Its website states that “If local laws permit use on sidewalks, a ‘walking pace’ of 3 mph should be maintained”. Three miles per hour is 4.8 kilometres per hour.
The Road Rules 2014 (NSW) (the Road Rules) were promulgated under the Road Transport Act 2013 (NSW).
Rule 15 of the Road Rules is the key provision defining vehicles. Rule 15 provides as follows:
15 What is a vehicle
A “vehicle” includes:
(a) a motor vehicle, trailer and tram, and
(b) a bicycle, and
(c)an animal-drawn vehicle, and an animal that is being ridden or drawing a vehicle, and
(d) a combination, and
(e)a motorised wheelchair that can travel at over 10 kilometres per hour (on level ground),
but does not include another kind of wheelchair, a train, or a wheeled recreational device or wheeled toy.
The terms “Wheelchair” and “Wheeled recreational device” are defined in the dictionary (see rule 4 of the Road Rules) as follows:
“wheelchair” means a chair mounted on 2 or more wheels that is built to transport a person who is unable to walk or has difficulty in walking, but does not include a pram, stroller or trolley.
...
“wheeled recreational device” means a wheeled device, built to transport a person, propelled by human power or gravity, and ordinarily used for recreation or play, and:
(a)includes rollerblades, rollerskates, a skateboard, scooter, unicycle or similar wheeled device, but
(b)does not include a golf buggy, pram, stroller or trolley, a motor-assisted device (whether or not the motor is operating), or a bicycle, wheelchair or wheeled toy.
It can be seen from Rule 15(e) of the Road Rules that a motorised wheelchair will be a vehicle if it “can travel at over 10 kilometres per hour (on level ground)”.
Without modifications to its speed, a Zoom ATV will be classified as a vehicle which cannot be used on footpaths. If a Zoom ATV was altered to ensure that its top speed of travel was not more than 10 kilometres per hour, would it come within the exception in Rule 15(e) and not be a vehicle?
Counsel for the Respondent referred me to information on motorised wheelchairs which appears on the NSW Centre for Road Safety website and which the Respondent attached to its summary of position as annexure B. This material can be found at >
I note that this material appears to be out of date because it refers to the Road Rules 2008 which have been repealed and replaced by the current Road Rules.
Counsel took me to the following words, “A motorised wheelchair in NSW must … Not have the capacity to travel faster than 10 km/h”.
Counsel for the Respondent, as I comprehended the argument, equated the word “capacity” with the word “design”. Thus, if a motorised vehicle was designed to travel more than 10 kilometres an hour, even if it was modified not to do so, it would be a vehicle and would not come within the exception in rule 15(e) of the Road Rules.
While there is some force in this argument, I prefer an interpretation based on the actual words of Rule 15(e) of the Road Rules. In my view, the words “that can travel” cover motorised wheelchairs which can actually travel more than 10 kilometres an hour. I find that where a Zoom ATV has been altered with the fitting of a speed inhibiter so that it cannot travel more than 10 kilometres an hour, it is not a vehicle for the purposes of the Road Rules. However, where a speed inhibiter has not been fitted, a Zoom ATV will be a vehicle and cannot travel on public footpaths, even if its speed is less than 10 kilometres an hour.
In my view, this purposive interpretation will not inhibit the significant technological advances which are occurring in the design and operation of motorised vehicles which assist persons with disabilities.
TWO REPORTS
Before detailing the evidence given in the hearing, extracts from two significant reports will be set out as some of the evidence refers to these documents. These reports appear in Tribunal Document 11 which was forwarded by the NDIA to the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
The Report of Ms Kuba McCormack
A report dated 16 January 2017 was signed by Ms Lauren Curtis, Senior Physiotherapist, Ms Kuba McCormack, Senior Occupational Therapist, and Ms Stephanie Jamieson, Social Worker, who were all from the Central Coast Local Health District.
The occupational therapy section of this report which was written by Ms Kuba McCormack reads as follows:
Greg has considerable support needs to assist him to organise himself and coordinate his care. Greg has above average intelligence but has difficulties with self-regulation, planning, organisation and problem solving. Greg requires case management to assist with negotiation with health professionals, coordination of care, advocacy and monitoring due to his psychosocial issues. Greg has benefited from Social Worker attending appointments with Greg to assist him to follow through administrative steps (eg completing EnableNSW or HousingNSW applications).
Greg lives alone and is unable to drive currently so will require regular care hours for care workers to assist him to be transported to GP, meetings, shopping centres, pharmacy and specialist appointments as his family are unable to sustain the amount of support Greg seeks from them. This would be a budget for at minimum fortnightly escorted trips for appointments etc throughout the first year.
I am concerned that the budget for equipment and home modifications is inadequate. Greg’s goals are to continue to drive (requiring modification to a suitable vehicle), including budgeting for OT driving assessment for licensing and transport and assistance to organise paperwork/appointments/modifications. Greg‘s goal is to be able to mobilise in his local area to men’s shed, and walk his dog, and catch a bus safely. These goals require OT hours for power wheelchair assessment, power wheelchair training, equipment assessment and equipment trials, and budget for additional equipment if eligible (including hiring a scooter whilst having electric bike/scooter repaired).
• Greg has his own vehicle but would benefit from OT assessment and medical review re driving independently (with vehicle control modifications and licensing if eligible).
• Greg has some equipment products in mind that meet these goals with a budget of approx. $20000. Zoomability powered device needs further assessment by an Occupational Therapist in consultation with Greg.
• Greg has a quote (attached) for electric bike/scooter repairs so he can access his local area $720. Greg will require hire of a suitable electric scooter/bike during this period of repairs estimated 4 weeks as well as care worker assistance to transport his scooter for repairs.
• Greg requires access modifications to his rental home (front glass screen door installation, wedge ramp and platform). He requires funding for OT assessment and administrative hours to liaise with landlord, review client need, prepare specifications and provision of trades to complete the modifications. This is likely to require 15-20hours of OT and up to $10000 in modifications materials/trades.
• Greg has cancelled his application to EnableNSW 6/9/16 for a Glide Centro TDX power WC for use for grocery shopping, buying food, walking his dog, and using the bus. Greg requires immediate private OT assessment for a suitable alternative that the client agrees to.
(original emphasis)
The Report of Ms Prosser
Ms Aimee Prosser wrote an assessment report concerning Mr Munday dated 27 February 2017. This report is both lengthy and detailed, however, for the purpose of this decision I reproduce the following extracts.
Physical Function:
Mobility
Mr Munday currently mobilises with one walking stick that is in poor repair (has two walking sticks taped together to make one stick). Mr Munday also has a mobility scooter which he stated is not in good working order (needing new battery, wheel bearings, seat and handlebars). Mr Munday uses his walking stick for very short distance mobility and reported he has been house bound for extended periods due to lack of appropriate mobility aid. Mr Munday was observed to mobilise with knees extended, using a scissor gait pattern. Mr Munday was observed to transfer by turning into a prone position, fully extending his hips and knees and then using his upper body to pull himself up into a standing position while lower limbs are locked into extension. Mr Munday stated this is the only way he can transfer from sitting to standing. This transfer technique is placing him at a high risk of falls.
History of Falls
Mr Munday reported he experiences approximately three falls per week when mobilising and transferring.
Standing
Mr Munday reported he is able to stand unsupported for a maximum of 30 seconds. This was observed during the assessment.
Seating
Mr Munday was observed to shift positions regularly when seated and stated his sitting tolerance is limited by pain.
Lying
Mr Munday reported he has difficulty with bed mobility and transfers due to limited lower limb mobility.
Reaching
Mr Munday was observed to be unable to reach to the floor or his lower limbs when seated or standing.
Lifting
Mr Munday has a weight lifting tolerance of less than 5kg due to his reduced limb strength and poor balance if attempting to lift or carry items when standing or mobilising.
Hand Function
Mr Munday reported he is able to complete all functional activities with his hands however ataxic hyper-extension through his interphalangeal joints was noted in both hands.
Skin Integrity
Mr Munday reported nil history of pressure areas.
Driving
Mr Munday stated he surrendered his drivers license several years ago as he felt he no longer had the reaction speed required to operate his vehicle safely.
Possible Areas of Concern:
-Mr Munday does not have suitable equipment to support his mobility of indoors/ short distances.
-Mr Munday does not have suitable equipment to support his community access and long distance mobility.
-Mr Munday demonstrates significantly reduced standing tolerance and a frequent falls history.
-Mr Munday is unable to reach below his knees for daily living tasks when seated or standing.
-Mr Munday currently uses an alternative transfer technique which limits the height and size of surfaces he is able to transfer to/ from, and increases his risk of falls (turning into a prone position, fully extending his hips and knees and then using his upper body to pull himself up into a standing position while lower limbs are locked into extension).
Transfer and Mobility skills:
Type of transfer / mobility
Environment
Observed function
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Access points to house
Very steep and uneven dirt access driveway with no curb/ guttering from street and significant water run off issues evident
Mr Munday reported he takes a “run up” with his scooter to make it up the front access, and then is required to zigzag up the front yard as the scooter does not have enough power to manage the rough terrain and gradient. Mr Munday stated he has not been able to do that at present due to the poor repair of his scooter, and that this is never possible if the ground is wet.
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PSYCHO SOCIAL ASSESSMENT
Communication
Mr Munday was observed to have no difficulty with verbal communication during the assessment.
Cognitive function
Mr Munday became fixated on the topic of his wheelchair needs during the assessment. He was observed to be very concrete in his thinking patterns and showed reduced thought flexibility and reasoning skills.
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Interests and hobbies
Mr Munday identified that he would like to be able to take his dog for a walk, go out with his niece / nephew when they are on their bikes, and go to the beach or the snow with his friends. Mr Munday identified that he needed his specialised wheelchair for all of these activities.
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RECOMMENDATIONS
Problem Area of Concern:
Recommendation/s:
Mobility
-Mr Munday does not have suitable equipment to support his mobility indoors/ short distances.
-Mr Munday does not have suitable equipment to support his community access and long distance mobility.
-Mr Munday demonstrates significantly reduced standing tolerance and a frequent falls history.
-Mr Munday currently uses an alternative transfer technique which limits the height and size of surfaces he is able to transfer to/ from, and increases his risk of falls (turning into a prone position, fully extending his hips and knees and then using his upper body to pull himself up into a standing position while lower limbs are locked into extension).
· Mr Munday was prescribed a Glide Centro TDX which was approved through ENABLE in September 2016. Mr Munday cancelled this application as he felt this wheelchair would not suit his needs.
· Mr Munday has stated he will not consider any power wheelchair other than the Zoom (please see attached letter from Mr Munday) as he feels no other wheelchair trialed meets all of his needs.
· Mr Munday has also stated he will modify the Zoom if prescribed to allow the full 20km/ hr speed to be achieved as he feels he requires this. Please see attached summary from previous treating OT Central Coast Community Service which outlines trials and applications already completed.
· OT Recommendation at this time:
-The Zoom powered wheelchair is not suitable as it is a recreational 4WD vehicle which Mr Munday states he will alter to exceed NSW safety standards. It also does not meet his transfers requirements and is not able to be adjusted if his needs change with progressive symptoms. It is not appropriate/ safe for use on public transport, and has a larger footprint when attempting to use in any indoor area.
-Prescription of the Glide Centro TDX or equivalent powered wheelchair
-Repairs to existing scooter for community use
-Addition of travel funding in his plan for transport to/ from shopping center and medical appointments
-Assistance to locate more appropriate housing -Counselling to manage mental health issues and suicidal tendencies
-Client can then look at independent fundraising to purchase the Zoom as a recreational vehicle at a later date as this is what this vehicle is designed for.
THE HEARING
Mr Munday attended the hearing by telephone and he represented himself. Mr James Miller, who is a disability advocate, also attended the hearing by telephone to support Mr Munday. Mr Munday and Mr Miller were on separate telephones. In other words, they were not present together in the same room.
The respondent was represented by counsel who also attended the hearing by telephone.
The Evidence of Mr Munday
Mr Munday gave evidence by affirmation over the telephone.
Mr Munday found it difficult to represent himself. His sole focus was on obtaining NDIA funding for the Zoom ATV. At times, Mr Munday became rather emotional, and at one point to give him time to settle down the hearing was adjourned for about 15 minutes. However, in all of the circumstances, I am of the view that Mr Munday did his best to assist the Tribunal.
In describing his disability of HSP, Mr Munday stated that what he had written in his disability report, which is quoted above, is correct.
In relation to the Zoom ATV, he said that he would never use it at a speed of more than 10 kilometres an hour when riding on a footpath. It was put to Mr Munday that Ms Prosser wrote in her report, which is quoted above, that he said that he would drive it as fast as he likes. Mr Munday responded that he did not say that. He added that if he was given the wrong wheelchair he was going to have to cut it up, change the wheelbase etc.
Mr Munday said that he did not want the Glide Centro because its wheel base is not balanced to go on the hill up to his house.
Mr Munday said that one of his sports is to go mushing with his dog.
Mr Munday said that he did suffer from depression. He was asked how the depression affected him. He said that he can’t get out. He was stuck in a trap at the bottom of a hill. If he has a house fire, he said “I’m dead”.
Mr Munday said that the Zoom ATV will give him a full life – not 10% of a life.
Mr Munday was asked whether he could get in and out of the Zoom ATV because on its website it is stated that it is designed for persons with mobility problems who have strong trunks. He said that he has a strong trunk.
In cross-examination, Mr Munday was taken to the report of Ms Prosser which is quoted above. It was put to Mr Munday that he had told Ms Prosser that he had some weakness developing in his upper limbs. Mr Munday said that he can feel his body twisting in the upper limbs. He added that he never said that he was weak. He said that the report is wrong.
Mr Munday was asked to talk the Tribunal through his symptoms in his upper limbs and torso. Mr Munday said that his back is twisting, and he feels it. However, he added that it hasn’t affected his strength. He was asked whether these symptoms affected his transfer technique and he said that it did not affect them.
Mr Munday was asked whether there was a chance that as his disability progresses he might lose the ability to stand up. He said that maybe he wouldn’t be able to stand up in ten years.
Mr Munday was taken to his second and third participant plans. He was asked about the money provided for supports such as for assistive technology and for support coordination. He said that he had not used this money as he simply wanted the Zoom ATV. He said that he did spend the weekly allowance for transportation.
Evidence of Ms Aimee Prosser
Ms Aimee Prosser gave evidence by affirmation over the telephone.
Ms Prosser recounted that she is a senior occupational therapist and that she is in her seventeenth year of practice. She was taken to her report which is quoted above.
Ms Prosser said that she visited Mr Munday’s home on 15 February 2017. She said that she did not bring wheelchairs with her on this visit. She said that she has not observed Mr Munday in a wheelchair.
Ms Prosser was taken to the report of Ms Kuba McCormack which is quoted above. She said that she had read this report and found it to be thorough.
Ms Prosser said that she made her own assessment which is set out in her report. She said that her report is correct.
Ms Prosser said that in discussing recommendations of wheelchairs at the conclusion of her report she stated that it should be a Glide Centro. Ms Prosser said that Mr Munday uses a transfer technique “which limits the height and size of surfaces he is able to transfer to”. She said that the Zoom ATV does not meet his transfer requirements. Its seat is not height adjustable. She said that the Zoom ATV can have a swivel seat, but it is not adjustable.
Ms Prosser was asked to explain her observations of Mr Munday. She said that in the movement available at his finger joints he is starting to get tonal changes and he is not being able to control fine motor movements and having as much strength through his upper body.
Ms Prosser was asked to explain why the Zoom ATV does not meet Mr Munday’s needs. She stated that the Zoom ATV is too wide to go in Mr Munday’s door. Ms Prosser explained that it doesn’t have tie down safety points for travelling in a vehicle. In other words, Mr Munday could not sit in the Zoom ATV while it is being driven in the back of a vehicle. This means that somebody would need to lift it in and out of a vehicle and Mr Munday would need to transfer to the vehicle as a passenger.
Ms Prosser said that the Zoom ATV is not safe on public buses. In these buses there is a section for wheelchairs. The Zoom ATV is too long to fit into this section comfortably.
Ms Prosser said that she believed it was possible to put a speed inhibiter onto a Zoom ATV to restrict its speed.
Ms Prosser was asked to comment on the suitability of the Glide Centro for Mr Munday. She said that the Glide Centro is only one of possibly four wheelchairs that could potentially meet Mr Munday’s needs. For example, Mr Munday could look at the Magic Mobility wheelchair. These wheelchairs have better suspension, fully adjustable seating systems, and positioning for lower limbs. They also have anterior and posterior tilting and supportive backrests.
Ms Prosser said that in her report, her recommendation was that Mr Munday have a powered wheelchair such as the Glide Centro or another wheelchair, and then perhaps the Zoom ATV could be purchased with funding for a leisure/recreation vehicle. Ms Prosser said that the Glide Centro is suitable for indoors and for public transport. It is also suitable in wheelchair accessible taxies as it has tie down points and meets all Australian safety standards. Finally, it could be modified to suit Mr Munday’s changing needs.
CONSIDERATION
The sole issue before this Tribunal is whether the purchase of a Zoom ATV for Mr Munday is a reasonable and necessary support which can be funded under the NDIS pursuant to section 33(2)(b) of the NDIS Act.
The relevant provisions of the NDIS Act have been set out above.
The criteria for the funding of reasonable and necessary supports is set forth in section 34(1) of the NDIS Act. Even though this provision has been quoted above, in order to more easily comprehend the reasonable and necessary supports issues it is reproduced here as follows:
Reasonable and necessary supports
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the 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.
Importantly, the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Support Rules) address the assessment and determination of “reasonable and necessary supports” that will be funded by the NDIA. By virtue of section 209 of the NDIS Act, the Support Rules form part of the legislation.
It is essential to appreciate that the opening words of section 34(1) of the NDIS Act require the CEO to be satisfied of each of the six lettered paragraphs in this provision. Put differently, if the criteria in five of the six paragraphs is fulfilled, the item in question will not be a reasonable and necessary support because one of the lettered paragraphs has not been satisfied.
Paragraphs (a), (b), (e) and (f)
It is clear on the evidence before me that paragraphs (a), (b), (e) and (f) of section 34(1) of the NDIS Act are satisfied in this instance. Indeed, counsel for the Respondent stated that the primary focus of the Respondent’s position was that paragraphs (c) and (d) were not satisfied, and neither was rule 5.1(a) of the Support Rules.
Mr Munday’s goals are specified in his first participant plan as follows:
Part 2: My goals
This part of my Participant Statement lists the goals I want to work towards during this plan.
My First Goal is:
During this plan: Greg would like to independence, to access his community and social networks eg. Men’s shed
My Second Goal is:
During this plan: Greg would like to participant in outdoor activities utilising a 4WD motorised chair
My longer term goals and aspirations are:
Goal: To remain independent as possible with a motorised chair
Relates to: Where I live
His first and second goals of independently accessing the community and of participating in outdoor activities will be furthered by the purchase of a Zoom ATV which satisfies paragraph (a).
Similarly paragraph (b) is satisfied because the Zoom ATV will assist Mr Munday in undertaking activities to facilitate his social and economic participation.
Paragraph (e) is not applicable here because it focuses upon what is reasonable for families and the community to provide etc., which is not relevant in this instance.
Finally, paragraph (f) does not apply because there are no other general systems of service, such as the health systems, which could more appropriately purchase the Zoom ATV.
Does the Zoom ATV Represent Value For Money Within the Meaning of Paragraph (c)?
Rule 3.1 of the Support Rules, puts flesh on the bones of section 34(1)(c). Rule 3.1 is as follows:
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).
It is not contested that the cost of the Glide Centro is pretty much the same as the cost of the Zoom ATV. From the quotes which are set out above, the price of the Glide Centro is $21,607, and the price of the Zoom ATV is $20,000.
The Respondent asserts that when the Zoom ATV is examined on its own, it does not represent value for money owing to its limitations.
In its statement of position, the Respondent asserts that a key difference between the Glide Centro and the Zoom ATV is that the Zoom ATV is a recreational vehicle which cannot be used on public footpaths. Having regard to the interpretation of rule 15(e) of the Road Rules which I adopted above, if a Zoom ATV is fitted with a speed inhibiter limiting it to no more than 10 kilometres an hour it can be used on public footpaths.
The Zoom ATV allows Mr Munday to pursue the second goal set out in his first participant plan, namely, to participate in outdoor activities.
The Zoom ATV does have limitations when compared with the Glide Centro. As the Zoom ATV does not have tie down safety points it cannot be put into a wheelchair taxi. It could be lifted into a vehicle, but of course Mr Munday would have to transfer into that vehicle as a passenger. I accept the evidence of Ms Prosser which she gave to this Tribunal, that the Zoom ATV is not safe on public buses.
Finally, the Respondent asserts that because the Zoom ATV cannot be adjusted to take account of the progressive nature of Mr Munday’s HSP it does not represent value for money. For example, the seat in the Zoom ATV is not adjustable. On the other hand, the Glide Centro has fully adjustable seating, as well as anterior and posterior tilting and supportive backrests.
I accept the evidence of Ms Prosser in her report and before this Tribunal that there are signs that Mr Munday’s upper body strength is lessening owing to the progressive nature of his HSP.
From the evidence before me, it is difficult to assess the rate of the progression of Mr Munday’s HSP. It appears at the trials in March and August 2016 that Mr Munday had no difficulty in driving, and getting in and out of the Zoom ATV. Ms Prosser’s evidence concerned her observations of Mr Munday which she made in February 2017 which is more than one year ago.
My understanding is that the life of a powered wheelchair is from three to five years in duration. Therefore, when assessing the likely deterioration of Mr Munday’s strength to operate a Zoom ATV the time scale is from three to five years.
When interpreting section 34(1)(c) of the NDIS Act, I have done so in accordance with the objects and principles of the NDIS Act which have been set out above. In particular, I note section 3(1)(e) which requires an interpretation which will “enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports”.
Having regard to the benefits to Mr Munday of receiving a Zoom ATV to pursue his goals, when balanced against the limitations of the Zoom ATV, I find that the Zoom ATV represents value for money within the meaning of section 34(1)(c) of the NDIS Act.
Is the Zoom ATV Effective and Beneficial for Mr Munday, Having Regard to Current Good Practice Within the Meaning of Paragraph (d)?
Rules 3.2 and 3.3 of the Support Rules, put flesh on the bones of section 34(1)(d). Rules 3.2 and 3.3 are as follows:
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.
When unpacking the value for money criterion in section 34(1)(c) of the NDIS Act, I examined the limitations of the Zoom ATV, when compared with the Glide Centro. The reasons for holding that with a speed inhibiter the Zoom ATV could be driven on public footpaths were set forth. Comment was made on the progression of Mr Munday’s HSP.
When interpreting section 34(1)(d) of the NDIS Act, I have done so in accordance with the objects and principles of the NDIS Act which have been set out above. In particular, I note section 4(4) which requires an interpretation which will enable people with disabilities to “be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports”.
Having regard to the benefits to Mr Munday of receiving a Zoom ATV to pursue his goals, when balanced against the limitations of the Zoom ATV, I find that the Zoom ATV will be, or is likely to be, effective and beneficial for Mr Munday, having regard to current good practice within the meaning of section 34(1)(d) of the NDIS Act.
Will the Zoom ATV be Likely to Cause Harm to Mr Munday or Pose a Risk to Others Within the Meaning of Rule 5.1(a)?
Rule 5.1(a) of the Support Rules is as follows:
5.1 A 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;
If the Zoom ATV is fitted with a speed inhibiter so that it cannot be driven faster than 10 kilometres an hour, in my opinion it is not likely to cause harm to Mr Munday or pose a risk to others.
In her report which is set out above, Ms Prosser wrote that Mr Munday “can then look at independent fundraising to purchase the Zoom as a recreational vehicle at a later date as this is what this vehicle is designed for”. I infer from this statement that Ms Prosser did not regard the Zoom ATV as being unsafe for Mr Munday if properly used.
If owing to the progression of his HSP, Mr Munday is no longer able to transfer in and out of the Zoom ATV and is thus unable to drive it, he runs the risk of being housebound again. Mr Munday is an adult and he must live with the consequences of seeking a Zoom ATV.
If the Zoom ATV did not have a speed inhibitor, or if its speed inhibitor was altered or removed, then in my view it is likely to cause harm to Mr Munday and could pose risks to other persons.
I note here the following comment by Ms Prosser in her report which is reproduced above. Ms Prosser wrote as follows: “Mr Munday has also stated he will modify the Zoom if prescribed to allow the full 20km/ hr speed to be achieved as he feels he requires this”.
In his evidence before this Tribunal, Mr Munday stated that he would never use the Zoom ATV at a speed of more than 10 kilometres an hour when riding on a footpath. Mr Munday made this statement on affirmation over the telephone and in my assessment he took the Tribunal proceedings seriously.
In my judgement, it is highly unlikely that if given a Zoom ATV with a speed inhibiter, Mr Munday would alter or remove the speed inhibiter. In any event, it would be open to the NDIA to inspect the Zoom ATV at reasonable times and after giving due notice to Mr Munday.
FINDINGS
For the reasons which have been set out above, I find that the provision of a Zoom ATV with a speed inhibiter is a necessary and reasonable support within the meaning of section 34(1) and related provisions of the NDIS Act.
In particular, I find that the Zoom ATV represents value for money, would be beneficial to Mr Munday, and when properly used would not pose risks to Mr Munday and other persons.
DECISION
The decision under review is varied as follows:
Instead of funding a Glide Centro, Mr Munday is to receive funding to purchase a Zoom ATV with a speed inhibiter preventing it from travelling more than 10 kilometres an hour.
I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member
...............[sgd].........................................................
Associate
Dated: 2 March 2018
Date of hearing: 12 February 2018 Applicant: By telephone Solicitors for the Respondent: Ms A Briffa, Australian Government Solicitor
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