NJSC and National Disability Insurance Agency
[2022] AATA 4449
•23 December 2022
NJSC and National Disability Insurance Agency [2022] AATA 4449 (23 December 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2021/1930
Re:NJSC
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
Decision
Tribunal:Member P Smith
Date:23 December 2022
Place:Sydney
The decision under review is affirmed.
...............................[SGD]...................................
Member P Smith
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – application for review of a reviewable decision - young boy with severe and complex Autism Spectrum Disorder who engages in dangerous and unsafe behaviours – older siblings also have a diagnosis of severe Autism Spectrum Disorder – whether supports are reasonable and necessary – whether supports represent value for money – whether supports are effective and beneficial – whether the supports are most appropriately funded or provided through the NDIS and not more appropriately funded or provided through other systems of service delivery or support services - whether insufficient evidence to make assessment of reasonable and necessary supports - decision under review affirmed
Legislation
National Disability Insurance Scheme Act 2013 (Cth), ss.3, 9, 31, 32, 33, 34, 35, 48(5), 117, 118, 119, 209(1)
Administrative Appeals Tribunal Act 1975 (Cth), ss.35, 42D, 42D(4)(a)
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth)Cases
National Disability Insurance Agency v WRMF (2020) 276 FCR 415
McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121
MDCT and National Disability Insurance Agency [2020] AATA 6036
Comcare v Holt [2007] FCA 405
Sharman v Evans (1977) 138 CLR 563
Comcare v Holt [2007] FCA 405
MDCT and the National Disability Insurance Agency [2020] AATA 697
LWVR and the National Disability Insurance Agency [2021] AATA 4822
BIJD and the National Disability Insurance Agency [2018] AATA 2971Secondary Materials
NDIS Pricing Arrangements and Price Limits 2021-22 (previously published as the NDIS Price Guide)
NDIS Pricing Arrangements and Price Limits 2022-23 (previously published as the NDIS Price Guide)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth), rr.1.1, 3.2, 3.3, 3.4, 3.5, 5.1, 7.8, 7.9, 7.10
National Disability Insurance Scheme Operational Guidelines
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth), r.17REASONS FOR DECISION
Member P Smith
23 December 2022
THE APPLICATION
NJSC (the Applicant) is a three-and-a-half-year-old boy. He lives in Brisbane with his mother (Ms NJSC) and father (Mr NJSC) (collectively, the Applicant’s parents) and his older brother and sister. The Applicant has been a participant of the National Disability Insurance Scheme (NDIS) since 24 December 2020. He has a diagnosis of Autism Spectrum Disorder (ASD) of level 3 severity requiring very substantial supports[1] and a diagnosis of comorbid Attention Deficit Hyperactivity Disorder (ADHD)[2]. The Applicant’s brother and sister also have a diagnosis of ASD with level 2 severity requiring substantial supports as well as a diagnosis of ADHD. They too receive supports funded under the NDIS.
[1] See the Confidential Psychological Report at T1C of the T-documents the Respondent lodged with the Tribunal on 28 April 2021, prepared by Ms R, Registered Psychologist at Read Clinic on 24 September 2020.
[2] See the letter at T1E of the T-documents prepared by the Applicant’s Paediatrician, Dr L, Consultant Paediatrician confirming the Applicant’s diagnosis of comorbid Attention Deficit Hyperactivity Disorder.
Ms NJSC made an application to the Tribunal on 23 March 2021[3] on behalf of her son seeking a review of an internal review decision made by a reviewer of the National Disability Insurance Agency (the Respondent). The reviewer, after conducting the internal review[4], decided to vary[5] the decision made by a delegate of the Chief Executive Officer (CEO) of the Respondent on 24 December 2020 to approve a statement of participant supports (the SOPS) in the Applicant’s Plan under subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) for a 12-month period commencing on 24 December 2020 and ending before 24 December 2021[6].
[3] See T1 of the T-documents for a copy of the Application for Review of Decision Ms NJSC made to the Tribunal online on 23 March 2021.
[4] See T4 of the T-documents for a copy of the letter of 4 March 2021 from Ms NJSC to the Respondent to conduct an internal review of the decision made by a delegate of the Chief Executive Officer of the Respondent on 24 December 2020 to approve a statement of participants support in the Applicant’s Plan under subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth).
[5] See T8 of the T-documents.
[6] See T7 of the T-documents.
In the course of this proceeding, the Tribunal considered it appropriate on two occasions[7] to remit the reviewable decision to the Respondent’s delegate under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) for further consideration. The most recent order of the Tribunal is the one made on 16 June 2022. The Respondent’s delegate reconsidered the reviewable decision on 30 June 2022. It resulted in the Respondent’s delegate making a new decision to approve another SOPS in the Applicant’s Plan[8]. As a new decision was made by the Respondent’s delegate on remittal on 30 June 2022, this decision is now the decision that is under review for the purpose of this review application[9].
[7] Member Smith made orders under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) on 21 April 2022 and again on 16 June 2022.
[8] The statement of participants supports approved on 30 June 2022 is identified as R1 in the index to the Respondent’s Tender Bundle.
[9] See subsection 42D(4)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
The SOPS approved in the Applicant’s Plan by the Respondent’s delegate on remittal on 30 June 2022 that is now the decision under review commenced on 30 June 2022 for a six-month period to be reviewed by the CEO of the Respondent before 29 December 2022, the date by which the Respondent must review the Applicant’s Plan as is required under Division 4 of the NDIS Act[10].
[10]See subsection 48(5) of the National Disability Insurance Scheme Act 2013 (Cth).
Supports sought for the Applicant in the review proceeding
In email correspondence to the Tribunal dated 13 April 2022, Ms NJSC confirmed that for the purpose of the Applicant’s application for review, Ms NJSC seeks the approval of the following seven supports[11]. The seven supports confirmed by Ms NJSC are as follows:
[11] See the document that was attached to Ms NJSC’s email of 13 April 2022 entitled ‘UPDATED Confirmation of Supports Sought for NJSC’. This document is also identified as A1 in the index to the Applicant’s Tender Bundle.
1)1:1 support of in-home care of constant supervision of the Applicant, 24 hours each day and each night.
2)1:1 support for swimming lessons to be held between the Applicant and a Swimming Instructor from AUTISM SWIM three times per week for 30 minutes a session at a cost of $55.00 per lesson.
3)Modifications to the fence of the family home by increasing its height to two metres at a cost of $6,185.00 (inclusive of materials, installation and labour).
4)$760.00 to purchase the ‘Explore and Learn Package’ Climbing Frame Equipment for the Applicant to use in the family home.
5)Modifications to the kitchen cabinetry to the family home with magnetic locking doors and an induction stove top to be installed at a cost of $8,781.52 (inclusive of material, delivery and installation of the cabinets, magnetic locks, and stove top).
6)The implementation of a Behaviour Management Plan ($6,126.00) to be allocated to Capacity Building Improved Daily Living (in addition to the existing $17,071.12 allocated).
7)Funding for intensive early intervention therapy for the following specialists:
i.weekly occupational therapist sessions for 48 weeks of the year;
ii.weekly speech therapy sessions for 48 weeks of the year;
iii.weekly exercise physiology sessions for 48 weeks of the year; and
iv.weekly neuropsychology, monthly parent coaching, eight collaborative meetings and five hours per annum for report writing.
Ms NJSC has requested the approval of the seven supports identified at paragraph [5] on the basis that the current funded reasonable and necessary supports in the Applicant’s Plan are inadequate as they do not meet the Applicant’s severe and complex disability support needs. It was submitted for the Applicant that he is very hypervigilant and engages in unsafe behaviours associated with his severe and complex ASD, inside and outside of the family home. The Applicant’s safety, both inside and outside of the family home, is the primary concern of the Applicant’s parents. It was submitted for the Applicant that the current funded supports fail to help the Applicant to make improvements to his skills in language and communication, emotional responses, physical capacities, and self-care, and fails to help the Applicant in the development of his social engagement skills. It was submitted for the Applicant that the current funded supports fail to provide the level of support to the Applicant’s parents to enable them to provide the appropriate level of care to their high supports needs son.
The table below provides a comparison between the reasonable and necessary supports that are currently included in the Applicant’s Plan and the amount that is allocated to fund those supports and the supports that are sought for the Applicant for the purposes of his application and, if approved the costs to fund those supports.
CURRENT REASSONABLE AND NECESSARY SUPPORTS INCLUDED IN THE APPLICANT’S PLAN AND THE SUPPORTS MS NJSC HAS REQUESTED FOR THE APPLICANT AND THE COSTS TO FUND THOSE SUPPORTS
SUPPORTS
CURRENT FUNDED SUPPORTS
REQUESTED SUPPORTS
CORE SUPPORTS BUDGET
1:1 support of in-home care
8. Funding has been allocated to the Applicant’s Core Supports Budget to fund support within the Applicant’s home environment to build capacity and implement strategies[12]. This consists of:
9.
· 20 hours per week of 1:1 support of in-home care over a six-month period from Monday to Friday;
· Assistance with self-care activities – standard weekday daytime ($57.23 x 520 = $29,759.60);
· Three hours every Saturday of 1:1 in-home care over a six-month period;
· Assistance with self-care activities – standard Saturday ($80.28 x 78 = $6,261.84).
· Three hours every Sunday of 1:1 in-home care over a six-month period;
· Assistance with self-care activities – standard – Sunday ($103.34 x 78 = $8,060.52);
· 52 hours of respite for the Applicant’s parents; and
· Specialised home-based assistance for a child ($51.22 x 52 = $2,663.44).
Total $46,745.40
Ms NJSC is seeking the approval of 1:1 support of in-home care for the constant supervision of the Applicant for 24 hours each day and night[13]. If approved, this would consist of:
· 14 hours of 1:1 support of in-home care of weekday daytime support[14] over a six-month period from Monday to Friday;
· Assistance with self-care activities – standard weekday daytime ($62.17 x 1,820 = $113,149.40);
· Four hours of 1:1 support of in-home care weekday evening support[15] over a six-month period from Monday to Friday;
· Assistance with self-care activities – standard – weekday evening ($68.50 x 520 = $36,620.00);
· Six hours of 1:1 support of in-home care weekday night support[16] over a six-month period from Monday to Friday;
· Assistance with self-care activities – standard – weekday night ($69.77 x 780 = $54,420.60);
· 24 hours of 1:1 support of in-home care Saturday support over a six-month period;
· Assistance with self-care activities - standard – Saturday ($90.14 x 624 = $56,247.36);
· 24 hours of 1:1 support of in-home care Sunday support over a six-month period;
· Assistance with self-care activities - standard – Sunday ($116.24 x 624 = $72,533.76);
· 52 hours of respite for the Applicant’s parents; and
· Specialised home based assistance for a child ($52.73 x 52 = $2,741.96).
Total $334,713.08
Swimming lessons
Funding in the amount of $600 has been allocated to the Applicant’s Core Supports Budget to fund the gap for specialized swimming lessons while suitable therapeutic strategies are implemented to assist the Applicant to develop the capacity to re-join mainstream lessons.
Total $600.00
Ms NJSC is seeking the approval of three 30-minute weekly lessons with a swimming instructor from AUTISM SWIM at a cost of $55 per lesson over a 26-week period at a total cost of $4.290.00.
Total $4,290.00
Explore and Learn Climbing Frame Equipment
NOT CURRENTLY FUNDED
· Ms NJSC is seeking the approval to purchase the Explore and Learn Package Climbing Frame Equipment from Fox Wood Co in the amount of $760.00.
Total: $760.00
TOTAL CORE SUPPORTS
$47,345.00
$339,763.08
CAPACITY BUILDING SUPPORTS BUDGET
Improved Daily Living (CB Daily Activity)
Allied health supports
Funding has been allocated to the Applicant’s Capacity Building Supports Budget for the provision of early childhood intervention support sessions two hours each week over a six-month period. This consists of:
· Assessment Recommendation Therapy and/or Training (Incl. Assistive Technology) Other Therapy ($193.99 x 52 = $10,087.48);
· Funding for an additional six hours over a six-month period for progress reports on outcomes of current goals and objectives and the participants ongoing functional needs; and
· Assessment Recommendation Therapy and/or Training (Incl Assistive Technology) Other Therapy ($193.99 x 6 = $1,163.94)
Total $11,251.42
Ms NJSC is seeking the approval of 26 hours of weekly neuropsychology over a six-month period. If approved, this would consist of:
· Assessment Recommendation Therapy or Training Supports – Occupational Therapist ($193.99 x 24 = $4,655.76);
· Weekly speech therapy sessions for 48 weeks of the year (24 hours over a six-month period;
· Assessment Recommendation Therapy or Training Supports – Speech Pathologist ($193.99 x 24 = $4,655.76);
· Daily (five days per week) exercise physiology for 48 weeks of the year (120 hours for six months); and
· Assessment Recommendation Therapy or Training Supports – Other Professional ($193.99 x 120 = $23,278.80).
Total $32,590.32
Improved Relationships (CB Relationships)
Behaviour Management Plan
Funding has been allocated to the Applicant’s Capacity Building Supports Budget for Specialist Behavioural
Intervention Support ($214.41 x 10 = $2,144.10); andBehaviour Management Plan Incl. Training in Behaviour Management Strategies ($193.99 x 10 = $1,939.90).
Total $4,084.00
Ms NJSC is seeking the approval weekly neuropsychology therapies
(26 hours per week over a six-month period). If approved, this would consist of:· Assessment Recommendation Therapy or Training Supports – Other Professional ($193.99 x 26 = $5,043.74);
· Monthly parent coaching (six hours over a six-month period);
· Assessment Recommendation Therapy or Training Supports – Other Professional ($193.99 x 6 = $1,163.94);
· Eight collaborative meetings (eight hours over a six-month period);
· Assessment Recommendation Therapy or Training Supports – Other Professional ($193.99 x 8 = $1,551.92);
· Five hours per annum for report writing (five hours over a six-month period); and
· Assessment Recommendation Therapy or Training Supports – Other Professional ($193.99 x 5 = $969.95).
Total $8,729.55
TOTAL CB SUPPORTS
$15,335.42
$44,465.71
CAPITAL SUPPORTS
Fencing
NOT CURRENTLY FUNDED
· Material and installation of a 2-metre-high fence
Total: $6,185.00
New kitchen
cabinets, magnetic
locking and induction stovetopNOT CURRENTLY FUNDED
· Material, delivery and installation of cabinets, cook top stove and magnetic locks
Total: $8,781.52
Total Capital Supports N/A
$14,966.52
TOTAL
$62,680.82
$401,225.31
[12] The existing funding that has been allocated to the Applicant’s Core Support Budget for support with the Applicant’s home environment is based on the costings taken from the NDIS Pricing Arrangements and Price Limits 2021-22 (previously published as the NDIS Price Guide).
[13] The funding for this support is based on the costings taken from the NDIS Pricing Arrangements and Price Limits 2022-23 (previously published as the NDIS Price Guide).
[14] A Weekday Daytime Support is any support to a participant that starts at or after 6am and before or at 8pm on a single weekday (unless it is a Public Holiday or Night-time Sleepover Support) as provided in the NDIS Pricing Arrangements and Price Limits 2022-23 (previously published as the NDIS Price Guide).
[15] A Weekday Evening Support is any support to a participant that starts at or after 8pm and before or at midnight on a single weekday (unless it is a Public Holiday or Night-time Sleepover Support) as provided in the NDIS Pricing Arrangements and Price Limits 2022-23 (previously published as the NDIS Price Guide).
[16] A Weekday Night Support is any support to a participant that commences at or before midnight on a weekday and finishes after midnight on that weekday or commences before 6am on a weekday and finishes on that weekday (unless it is a Public Holiday, Saturday, Sunday or Night-time Sleepover Support) as provided in the NDIS Pricing Arrangements and Price Limits 2022-23 (previously published as the NDIS Price Guide).
8.The Applicant’s statement of goals and aspirations prepared by the Applicant’s parents and included in the Applicant’s Plan as required under subsection 33(1)(a) of the NDIS Act is reproduced in the table below[17]. It specifies seven goals that the Applicant, together with his parents, want the Applicant to achieve in the short-term and in the medium or long-term. The table also details how the Applicant will be supported to achieve those goals, and how his parents will be supported to assist the Applicant in achieving those goals.
[17] A confidentiality order was made by Deputy President Meagher (as her Honour then was) on 8 April 2021 under section 35 of the Administrative Appeals Tribunal Act 1975 (Cth). Having regard to the confidentiality order that remains in force, references in the Applicant’s Plan to his name and to the names of his mother and father and brother and sister have been removed from the reproduced statement of goals and aspirations.
THE APPLICANT’S STATEMENT OF GOALS AND ASPIRATIONS
GOAL 1 (to be achieved by the Applicant in the short-term)
The Applicant’s parents want their son to keep safe, inside and outside of the home
The Applicant will achieve this goal, for example, by creating a safe environment inside the home by removing climbing devices, including handles from drawers, furniture with open shelving and replacing it with suitable enclosed fittings/furniture, locking away items that can cause harm, including school bags hanging from hooks that can be a choking hazard, storing knives and other kitchen utensils in lockable cupboards (not a safety latch). This goal will be achieved by increasing the fence height from 1.4 metres to 2.2 metres to ensure that the Applicant will be retained in the yard of the family home. The Applicant will be provided with other supports to stay safe in his car seat and will undertake intensive swimming lessons with a swim instructor from Autism Swim to make the Applicant water safe. The Applicant will develop his resilience in order to be able to move away from fixated tasks and this will reduce destruction.
The Applicant will be supported to achieve this goal by being provided with opportunities at home and in the community to practice skills and strategies to support all goals. A plan will be put in place that will assist the Applicant and his family to achieve this goal.
GOAL 2 (to be achieved by the Applicant in the short-term)
The Applicant’s parents would like their son to improve his language and communication skills
9. The Applicant will achieve this goal by undertaking intensive speech therapy and implement the Picture Exchange Communication System inside and outside of the home, including developing physical exchange cards and boards.
The Applicant will be provided with opportunities at home and in the community to practice skills and strategies to support all goals. A plan will be put in place that will assist the Applicant and his family to achieve this goal.
GOAL 3 (to be achieved by the Applicant in the medium or long-term)
The Applicant’s parents would like their son to develop his social and engagement skills
The Applicant will be provided with opportunities to interact with his peers. The Applicant will learn to acknowledge and engage with his peers. The Applicant will learn to understand his name. The Applicant will engage with specialists to work in both clinical and social situations to provide support to his carers.
The Applicant will be provided with opportunities at home and in the community to practice skills and strategies to support all goals. A plan will be put in place that will assist the Applicant and his family to achieve this goal.
GOAL 4 (to be achieved by the Applicant in the medium or long-term)
The Applicant’s parents would like their son to improve his emotional response skills
The Applicant will undertake sessions with a psychologist so his family can have a better understanding of his emotions and behaviours. The Applicant and his family will implement strategies to calm the Applicant, including the use of support items that involve movement or noise.The Applicant will be provided with opportunities at home and in the community to practice skills and strategies to support all goals. A plan will be put in place that will assist the Applicant and his family to achieve this goal.
GOAL 5 (to be achieved by the Applicant in the medium or long-term)
The Applicant’s parents would like their son to improve physical capacities
10.
11. The Applicant will improve his ability to sit on a chair safely while undertaking everyday tasks, such as eating or playing. The Applicant will be provided with opportunities to explore and climb in a safe environment, including climbing frames and safety mats. The Applicant will develop his fine motor skills such as utensils and stationery.
The Applicant will be provided with opportunities at home and in the community to practice skills and strategies to support all goals. A plan will be put in place that will assist the Applicant and his family to achieve this goal.
GOAL 6 (to be achieved by the Applicant in the medium or long-term)
The Applicant’s parents would like their son to improve his self-care skills
The Applicant will develop independence in feeding, dressing himself and increasing his tolerance during nappy changes, bath time and grooming.
The Applicant will be provided with opportunities at home and in the community to practice skills and strategies to support all goals. A plan will be put in place that will assist the Applicant and his family to achieve this goal.
GOAL 7 (to be achieved by the Applicant in the medium or long-term)
The Applicant’s parents require support for their high need’s child
The Applicant’s parents will be provided with resources to ensure that they have the ability to provide intensive supervision and care for him at all times, including in home support for caring for their son, respite leave from the family and psychological support.
The Applicant will be provided with opportunities at home and in the community to practice skills and strategies to support all goals. A plan will be put in place that will assist the Applicant and his family to achieve this goal.
THE TRIBUNAL HEARING
The Tribunal conducted a substantive hearing in this matter on 18, 19 and 20 July 2022 by video via Microsoft Teams from Sydney. Ms NJSC, representing the Applicant, appeared before the Tribunal via video from Brisbane, and gave her oral evidence to the Tribunal on 18 July 2022. Ms NJSC called Dr S (Dr S), a registered Clinical Neuropsychotherapist and Ms P (Ms P), a registered Senior Occupational Therapist to give evidence in support of her son’s application. Dr S gave her oral evidence to the Tribunal on 18 July 2022 and briefly again on the morning of 20 July 2022 via video from Brisbane. Ms P gave her oral evidence to the Tribunal on 18 July 2022, also via video from Brisbane.
Philip Nolan of Counsel (Mr Nolan), representing the Respondent, also appeared at the hearing via video from Brisbane, with his instructor, Suzy Dole (Ms Dole). The Respondent called one expert witness to give evidence in support of their case. Their expert witness, Ms E (Ms E), a registered Senior Occupational Therapist gave her oral evidence to the Tribunal on 19 July 2022, also via video from Brisbane.
At the conclusion of the hearing the Tribunal indicated to the parties that it would be assisted in determining the application by the provision of closing written submissions addressing the relevant issues in dispute and identifying the key evidence from the hearing. Ms NJSC indicated to the Tribunal that it was the preference of the Applicant to make closing written submissions to the Tribunal. To assist the parties in the preparation of their closing written submissions, the audio recording of the hearing was transcribed, and a copy provided to each party via email on 2 August 2022. Written submissions from the Respondent were lodged with the Tribunal and a copy provided to the Applicant and Ms NJSC on 17 August 2022 in accordance with the directions given by the Tribunal on 2 August 2022.
After giving the Applicant and Ms NJSC several opportunities to lodge closing written submissions with the Tribunal, Ms NJSC informed the Tribunal that due to herself and the Applicant suffering from long COVID-19, she is not able to provide written submissions on behalf of her son and asked that the Member finalise his decision.
The Tribunal has proceeded to determine the application without having had the benefit of receiving any closing written submissions from Ms NJSC on behalf of the Applicant. The Tribunal has also proceeded to determine the application before 29 December 2022 so that the CEO of the Respondent can commence her scheduled review of the Applicant’s Plan, as required under subsection 48(5) of the NDIS Act.
THE STATUTORY FRAMEWORK
The NDIS[18], implemented under the NDIS Act, established the statutory framework for a new national program for the delivery of supports and services funded under the NDIS to eligible people living with disability to help them in their everyday lives supporting their independence and social and economic participation and enabling them to exercise choice and control over the planning and the delivery of their supports.
The NDIS Act established the NDIA[19], the independent body responsible for the administration of the NDIS. The functions of the Agency are set out in section 118 of the NDIS Act. The powers of the Agency are set out in section 119 of the NDIS Act.
Chapter 1 of the NDIS Act outlines the objects and the general principles that underpin the legislation. The objects of the NDIS Act are set out in section 3 of the NDIS Act and include supporting the independence and social and economic participation of people with disability[20], providing reasonable and necessary supports, including early intervention supports, for participants[21], enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports[22], facilitating the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability[23] and promoting the provision of high quality and innovative supports to people with disability[24]. Subsection 3(2) of the NDIS Act identifies three ways in which the objects of the NDIS Act are to be achieved. These include providing the foundation for governments to work together to develop and implement the NDIS[25], adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability[26], and establishing a national regulatory framework for persons and entities who provide supports, and services to people with disability, including certain supports and services provided outside of the NDIS[27].
The NDIS Act is supplemented by the National Disability Insurance Scheme Rules (the NDIS Rules) and the National Disability Insurance Scheme Operational Guidelines (the NDIS Operational Guidelines) and other legislative instruments. The NDIS Rules are legislative instruments made by the Minister under section 209 of the NDIS Act. The NDIS Rules contain the operational and administrative details of the NDIS. The NDIS Operational Guidelines provide information on how the Respondent makes decisions under the NDIS Act. The information contained in the NDIS Operational Guidelines is based on the legislative scheme and the related rules.
18.Chapter 3 of the NDIS Act provides the guiding framework for participants and the development of individualised participants plans and how a person becomes a participant of the NDIS. Section 31 of the NDIS Act sets out several principles that should, so far as reasonably practicable, be considered in relation to the preparation, variation, reassessment and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan.
[18] National Disability Insurance Scheme is defined in section 9 of the National Disability Insurance Scheme Act 2013 (Cth) to mean the arrangements set out in Chapters 2 and 3.
[19] See section 117 of the National Disability Insurance Scheme Act 2013 (Cth).
[20] See subsection 3(1)(c) of the National Disability Insurance Scheme Act 2013 (Cth).
[21] See subsection 3(1)(d) of the National Disability Insurance Scheme Act 2013 (Cth).
[22] See subsection 3(1)(e) of the National Disability Insurance Scheme Act 2013 (Cth).
[23] See subsection 3(1)(f) of the National Disability Insurance Scheme Act 2013 (Cth).
[24] See subsection 3(1)(g) of the National Disability Insurance Scheme Act 2013 (Cth).
[25] See subsection 3(2)(a) of the National Disability Insurance Scheme Act 2013 (Cth).
[26] See subsection 3(2)(b) of the National Disability Insurance Scheme Act 2013 (Cth).
[27] See subsection 3(2)(c) of the National Disability Insurance Scheme Act 2013 (Cth).
From 8 April 2022, following the passage of legislative amendments to section 32 of the NDIS Act, as introduced by the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth), the CEO must, if a person becomes a participant of the NDIS, facilitate the preparation of a participants plan within 21 days of the person becoming a participant[28].
[28] See section 32 of the National Disability Insurance Scheme Act 2013 (Cth).
After a person becomes a participant of the NDIS, they develop a plan with the Agency in two parts. The first part to the development of a participant’s plan includes the preparation of a statement (the statement of goals and aspirations) that is prepared by the participant that specifies the goals, objectives and aspirations of the participant, the environmental and personal context of the participant’s living, including the participant’s living arrangements and informal community supports and other community supports and their social and economic participation[29].
[29] See section 33 of the National Disability Insurance Scheme Act 2013 (Cth).
The second part to the development of a participant’s plan includes the preparation of another statement (the statement of participant supports) that must be included in the participant’s plan as required under subsection 33(2) of the NDIS Act. This statement must be prepared with the participant and approved by the CEO, that specifies a number of matters, including the general supports (if any) that will be provided to, or in relation to, the participant, and the reasonable and necessary supports (if any) that will be funded under the NDIS, the date by which, or the circumstances in which, the Agency must reassess the plan under Division 4, and the management of the funding for supports under the plan[30] and the management of other aspects of the plan[31].
[30] See Division 3 of Part 2 to Chapter 3 to the National Disability Insurance Scheme Act 2013 (Cth).
[31] See subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth).
Subsection 33(3) of the NDIS Act provides that the reasonable and necessary supports that will be funded or provided under the NDIS may at the discretion of the CEO be identified in a participant’s plan specifically or generally, whether by reference to a specified purpose or otherwise.
Subsection 33(4) of the NDIS Act provides that the CEO must decide whether or not to approve the statement of participant supports either within the period worked out in accordance with the NDIS Rules prescribed for the purposes of this paragraph (which may take account of section 36 (information and reports))[32] or if there are no such rules – as soon as reasonably practicable, including what is reasonably practicable having regard to section 36 (information and reports)[33].
[32] See subsection 33(4)(a) of the National Disability Insurance Scheme Act 2013 (Cth).
[33] See subsection 33(4)(b) of the National Disability Insurance Scheme Act 2013 (Cth).
Subsection 33(5) of the NDIS Act sets out several matters that the CEO must have regard to when deciding whether to approve a statement of participant supports. These include the participant’s statement of goals and aspirations as discussed at paragraph [20][34], whether the supports are reasonable and necessary supports as required under section 34 of the NDIS Act[35], whether any relevant assessments have been conducted in relation to the participant[36], whether any methods or criteria specified in the NDIS Rules for deciding the manner in which, and by whom, the reasonable and necessary supports will be funded or provided[37], the principle that it is desirable for a participant to manage their plan to the extent that they wish to do so[38], and the operation and effectiveness of any previous plans of the participant[39].
[34] See subsection 33(5)(a) of the National Disability Insurance Scheme Act 2013 (Cth).
[35] See subsection 33(5)(b) of the National Disability Insurance Scheme Act 2013 (Cth).
[36] See subsection 33(5)(c) of the National Disability Insurance Scheme Act 2013 (Cth).
[37] See subsection 33(5)(d) of the National Disability Insurance Scheme Act 2013 (Cth).
[38] See subsection 33(5)(e) of the National Disability Insurance Scheme Act 2013 (Cth).
[39] See subsection 33(5)(f) of the National Disability Insurance Scheme Act 2013 (Cth).
Subsection 33(6) of the NDIS Act provides to the extent that the funding for supports under a participant’s plan is managed by the Agency, the plan must provide that the supports are to be provided only by a registered NDIS provider.
A participant’s plan may include additional matters as prescribed in the NDIS Rules[40], and a participant’s statement of goals and aspirations must be in writing or recorded by the Agency in writing[41].
[40] See subsection 33(7) of the National Disability Insurance Scheme Act 2013 (Cth).
[41] See subsection 33(8) of the National Disability Insurance Scheme Act 2013 (Cth).
Section 34 of the NDIS Act sets out the mandatory criteria of which the CEO must be satisfied in relation to the funding or provision of each support provided to a participant, to ensure that they are ‘reasonable and necessary’ to assist the person. This must be considered when a statement of participant supports is being developed.
All supports that will be funded under the NDIS must be assessed by the CEO, or for present purposes, the Tribunal, against the reasonable and necessary criterion under section 34 of the NDIS Act and the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Support for Participants Rules). These Rules, made by the Minister, by legislative instrument, on 18 June 2013, under subsection 209(1) of the NDIS Act, for the purposes of sections 33 and 34 of the NDIS Act, are about the assessment and determination of the reasonable and necessary supports that will be funded for participants under the NDIS.
The NDIS Operational Guidelines on reasonable and necessary supports provides information on how the Respondent makes decisions on reasonable and necessary supports under the NDIS Act. The information contained in the NDIS Operational Guidelines on reasonable and necessary supports is based on the legislative scheme and the related NDIS Rules.
To be considered reasonable and necessary for the purposes of making an assessment against the criteria in section 34 of the NDIS Act, a support must firstly assist the participant to pursue his or her goals, objectives and aspirations in the participant’s statement of goals and aspirations as required under subsection 34(1)(a) of the NDIS Act. Secondly, the support must assist the participant to undertake activities, as to facilitate the participant’s social and economic participation as required under subsection 34(1)(b) of the NDIS Act. Thirdly, the support must represent value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support as required under subsection 34(1)(c) of the NDIS Act. Fourthly, the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice as required under subsection 34(1)(d) of the NDIS Act. Fifthly, 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 as required under subsection 34(1)(e) of the NDIS Act. Sixthly, the support is most appropriately funded or provided through the NDIS, 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 or support services offered as part of a universal service obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability as required under subsection 34(1)(f) of the NDIS Act.
The phrase ‘reasonable and necessary’ is not defined in the NDIS Act. In National Disability Insurance Agency v WRMF[42] (WRMF), the Full Federal Court observed that the phrase ‘connotes supports which meet a threshold which justifies – be reference to the context, objects and guiding principles of the [NDIS] Act and the facts of the case – the expenditure of public funds for that support, for a particular participant’. Reasonable and necessary is a composite phrase, and each limb of which must be given work to do[43]. In McGarrigle v National Disability Insurance Agency[44] (McGarrigle), Mortimer J explained the two limbs in the following terms:
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports.
[42] (2020) 276 FCR 415 at [151].
[43] WRMF at [149].
[44] (2017) 252 FCR 121 at [91].
Determination of whether a support meets the reasonable and necessary criterion must be made on the basis of probative evidence[45].
[45] Ibid at [93].
Subsection 34(2) of the NDIS Act provides that the NDIS Rules may prescribe methods or criteria to be applied or matters to which the CEO is to have regard, in deciding whether he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
Section 35 of the NDIS Act permits NDIS Rules to be made about the content of a participant’s statement of supports. Subsection 35(1) of the NDIS Act provides that the NDIS Rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding, the reasonable and necessary supports or general supports that will be funded or provided under the NDIS[46], reasonable and necessary supports or general supports that will not be funded under the NDIS[47], and reasonable and necessary supports or general supports that will or will not be funded or provided under the NDIS for prescribed participants[48].
[46] See subsection 35(1)(a) of the National Disability Insurance Scheme Act 2013 (Cth).
[47] See subsection 35(1)(b) of the National Disability Insurance Scheme Act 2013 (Cth).
[48] See subsection 35(1)(c) of the National Disability Insurance Scheme Act 2013 (Cth).
THE ISSUE
The issue for the Tribunal to determine is whether the requested supports identified at paragraph [5] are reasonable and necessary within the meaning of section 34 of the NDIS Act and where applicable, the relevant criterion in the Supports for Participants Rules that are relevant to the assessment of approving a statement of participants support.
THE EVIDENCE
Evidence given by Ms NJSC
Ms NJSC is 40 years of age, and her husband is 46. They have three children. Their daughter is the eldest of the three children. She is eight years of age. The Applicant’s brother is five years of age and the Applicant, their youngest, is three-and-a-half-years old.
In late February or early March 2022, the Applicant and his family were required to move out of their family home due to a build-up of extensive black mould and because of damage caused to the home by flooding in parts of Brisbane in late February 2022. The Applicant and his family remain living in temporary accommodation while they await the completion of remediation and restoration work of the family home
Ms NJSC’s daughter is a Grade 2 student at a mainstream primary school close to the home that the Applicant and his family have been temporarily residing since late February 2022 or early March 2022. The Applicant’s brother started prep in 2022, however Ms NJSC described in her evidence his transition to prep as poor thus resulting in a deterioration in his anxiety and autism.
Ms NJSC is employed on a full-time basis as a Town Planner. She commenced her current employment a few weeks before the substantive hearing was held. Her office is in the Brisbane CBD. It is a requirement of Ms NJSC’s employment that she attends the office in person, from Monday to Friday between the hours of 9.00am and 5.00pm. However, in her evidence Ms NJSC also said that her employer is considering allowing her to work from home on a part time basis.
Ms NJSC said in her evidence that Mr NJSC[49] works as a casual hospital orderly, a job he has been doing for a few years. He is however qualified to work in pathology. Ms NJSC said in her evidence that Mr NJSC’s employment with Queensland Health is subject to a contract that can change on a monthly basis. Ms NJSC said in evidence that her husband usually does not work less than 40 hours each week. Ms NJSC said in her evidence that some days her husband can work up to 16 hours a day because of the current staff shortages affecting the healthcare sector, and he may not know about the extra hours of work until after he begins a shift.
[49] Mr NJSC was not called as a witness to give evidence at the hearing.
Ms NJSC said in her evidence that sometimes her husband has been responsible for taking the children to school on weekday mornings and collecting them after school in the afternoon. However, when Ms NJSC worked from home for a previous employer, this responsibility largely fell to Ms NJSC who described the experience as one of the worst experiences of her life because of the behaviours the Applicant engaged in. Ms NJSC acknowledged in her evidence that she can take the children to school in the mornings and collect them in the afternoon. However, she also said that it is not ideal for her to do so, namely due to the stress this puts her under. In some circumstances, Mr NJSC is able to collect the children after school, however, because of the location of his place of employment, he can be late on arrival which can cause the Applicant’s brother to become distressed.
Prior to January of 2022, Ms NJSC was in a better position to take the children to and from school because her parents were able to provide care to the Applicant at their home. This arrangement provided some respite to the Applicant’s parents for short periods of time and allowed Ms NJSC to return home to start work on time. However, in January of 2022, Ms NJCS’s relationship with her parents deteriorated following an incident involving them and the Applicant. The Applicant’s parents were also assisted up until March of 2022 by a neighbour who would provide care to the Applicant in his home while Ms NJSC or her husband took the Applicant’s siblings to school and collected them in the afternoon. It is noteworthy that in March of 2022, the neighbour relocated to the United Kingdom. This arrangement with the neighbour also provided some short-term respite to the Applicant’s parents during school drop offs and pick-ups.
Ms NJSC was questioned about what other informal supports she and her husband had in helping with the care and supervision of the children. Ms NJSC said in her evidence that there is limited support available from her family and the family of her husband either because of their locality or personal circumstances.
Ms NJSC confirmed in her evidence that the Applicant receives a total of 26 hours per week of 1:1 support of in-home care provided by an unqualified worker. Ms NJSC said in her evidence that the Applicant’s current in-home support worker has informed her and her husband that she will be relocating to the Australian Capital Territory to commence a new employment opportunity, thus the current care arrangements will cease in or around February of 2023.
Ms NJSC was questioned about her experience of NDIS Support Co-ordinators. In her evidence, Ms NJSC said that she contacted the Benevolent Society and the NDIA to obtain appropriate contacts for the Applicant. Ms NJSC said in her evidence that no contacts were provided or that the services from both the Benevolent Society and the NDIA were unhelpful. It appears from Ms NJSC’s evidence that she found the co-ordination system too complex to navigate despite contacting both providers.
Ms NJSC said in her evidence that she had been providing early intervention therapies for her children for more than six years. When she was questioned by Mr Nolan about having a qualified support worker to provide care to the Applicant at his home, to best meet the needs of Ms NJSC, she said that a qualified worker was not a requisite because in her view it has to be about what works for her children, including the Applicant, and the family as a collective.
Ms NJSC said in her evidence that her details are registered with various people and organisations who are care providers. However, the current in-home care arrangements provided by the current support worker appears to be helpful. As noted at paragraph [44], the Applicant’s current support worker has indicated to his parents that she will commence a new employment position in February of 2023.
Ms NJSC said in her evidence that she and her husband were trialling the Montessori school for young children to determine whether it was an appropriate setting for the Applicant. Ms NJSC said that the Applicant attended the Montessori school independently, albeit for short periods, without his support worker. Ms NJSC spoke in her evidence about the challenges she experienced in preparing him for school each morning. Moreover, Ms NJSC said in her evidence that when she dropped him off in the morning, she would face further challenges due to his behavioural problems. This resulted in her having to remain on the school grounds for extensive periods of time to help ameliorate his distressing behaviours. Ms NJSC said that when the Applicant attended the Montessori school, he was unable to stay in class past 12.30pm. Ms NJSC also said in her evidence that the Applicant’s support worker would collect him in the afternoon in order to provide a consistent routine for the Applicant.
During cross-examination, Ms NJSC was referred to a letter written by the Montessori school on 10 June 2022[50]. The letter states that the Applicant arrived for classes at 8.00am and stayed until 1.00pm to 1.30pm. There appears to be a conflict in the evidence given by Ms NJSC and the Montessori school about the hours and days of schooling attended by the Applicant.
[50] See A26 of the Applicant’s Tender Bundle.
Ms NJSC said in her evidence that she looks after her son at home each Thursday and Friday. This is enabled by Ms NJSC extending her workdays on other weekdays and also with the assistance of the Applicant’s current support worker. Ms NJSC said that the Applicant needs a very rigid schedule and routine to ensure consistency and to ensure that his behaviours remain stable.
Ms NJSC was questioned about the current care arrangements provided to the Applicant on Thursdays. Ms NJSC said in her evidence that for three weeks (as of 18 July 2022 when giving her evidence to the Tribunal) she had not been providing care to the Applicant. She said that sometimes Mr NJSC provides care to the Applicant on Thursdays. Ms NJSC said also that sometimes, albeit reluctantly, the Applicant’s current support worker provides care to the Applicant at his home when she can. Ms NJSC said that when there are changes to the care schedule it can be difficult to secure a care provider for the Applicant and Mr NJSC can be unreliable at providing the details of his work schedule.
Ms NJSC said in her evidence that the Applicant’s support worker presently provides in-home care to the Applicant at his home for two hours in the mornings. Ms NJSC confirmed that in respect of the Applicant’s brother, he receives 10 hours each week to be used to pay for a support worker to take him to school. It was also confirmed that the funds to cover that support are yet to be utilised.
Ms NJSC was questioned about Mr NJSC’s involvement as a parent to their children, including the Applicant. Ms NJSC said in her evidence that she does not regard her husband to be capable of managing the children’s autistic behaviours. Ms NJSC gave examples in her evidence of her husband’s incapacity to provide care to the children. For example, Ms NJSC states that on one occasion while being looked after by Mr NJSC, the Applicant crawled out of a window that was open and was standing on the roof of the second story of the building that the Applicant and his family temporarily reside. Ms NJSC said that Mr NJSC is also incapable of anticipating the Applicant’s needs and providing appropriate care to him and ensuring his safety. Ms NJSC said, based on her observations, that Mr NJSC has basically withdrawn from the family both emotionally and physically. Ms NJSC said that she sometimes does not attend work because she is reluctant to leave all children in the care of her husband. Ms NJSC said that her husband is possibly autistic and/or has ADHD. But this is yet to be confirmed by a suitably qualified expert and if correct renders Mr NJSC incapable of providing appropriate care to his children. Ms NJSC said it is possible that she too may have ASD and/or ADHD.
Ms NJSC was questioned about the supervision of the Applicant while working from home and caring for the Applicant. Ms NJSC said in her evidence that her current employer will be unhappy with her if she undertakes a primary parenting role during business hours. Ms NJSC said in her evidence that it is difficult for her to balance the two competing interests at the same time. Ms NJSC said in her evidence that the Applicant cannot be left unsupervised in the yard due to the Applicant’s propensity to engage in dangerous and unsafe behaviours. Ms NJSC gave an example in her evidence of the Applicant banging on the door wanting to be let outside. Ms NJSC said that she has to let him out to avoid the Applicant breaking a glass door. Ms NJSC acknowledged in her evidence that when she lets the Applicant outside, she can sit on the patio and supervise him, but that she cannot always supervise him.
In her evidence Ms NJSC referred to the impact that the Applicant’s illness has had on him from December 2021 onwards when he was hospitalised and diagnosed as immunocompromised. Ms NJSC also referred to the significant impact caused to the children because of the breakdown of the relationship each child had with their maternal grandparents and the impact of having to move out of the family home. Ms NJSC said that these factors have caused behavioural problems between the Applicant and his brother as well as individual behavioural problems. Ms NJSC said that the Applicant’s brother has also become violent and destructive.
Ms NJSC said in her evidence that it was her preference for the Applicant to attend longer day care as comparable to her older children and perhaps with Autism Queensland. Ms NJSC said that from her perspective the Applicant is miserable being at home without peers and only in the presence of adults. Ms NJSC said ideally, she would prefer to not have support workers provide care to the Applicant, but rather that the Applicant be in an environment that is safe and secure. This is advocated by allied health professionals and Dr S. Ms NJSC said that if the Applicant were to enrol as a student at Autism Queensland, they would need to have a support worker that could transport the Applicant to and from the school and the relationship with that support worker would need to be close for this to be a viable arrangement. Moreover, the three days per week attendance arrangement would cost more than $64,000.00 per annum and the days of attendance at the school are shorter but correspond with the school terms.
Ms NJSC was questioned about the appropriateness of mainstream kindergartens and schools for the Applicant to attend. Ms NJSC said in her evidence that she had formed the view that mainstream kindergartens and schools were not an appropriate learning environment for her son because of his special needs and the lack of safe infrastructure This included mainstream schools commencing in the school year of 2023.
Ms NJSC was questioned about the proposed modifications to the family home and the recommendations made by Ms P. In her evidence, Ms NJSC confirmed that Ms P had never visited the family home to conduct any assessments. Ms NJSC said although Ms P had not been to the family home, she had been provided with copies of plans, photographs, and a video. Ms NJSC also said in her evidence that during earlier periods of COVID-19, she would have regular video meetings via the Zoom platform with Ms P and during those meetings Ms NJSC would walk around the home with the Applicant to allow Ms P to form views regarding the Applicant and his safety in and around the family home. Ms NJSC said based on these observations, Ms P became fully aware of the layout of the family home.
It was put to Ms NJSC during cross-examination that given no functional capacity assessment had been conducted by an Occupational Therapist, in order, to determine whether the proposed home modifications sought for the Applicant are reasonable and necessary and thus appropriate to meet the Applicant’s disability support needs. Ms NJSC said that the areas within the home were assessed by Ms P and Ms M, but no formal assessment was made.
Ms NJSC was questioned about the request made for the Applicant in respect of the 1:1 swimming lesson to be provided by a swim instructor from AUTISM SWIM for 30 minutes three times per week. Ms NJSC said in her evidence that the Applicant had not attended a swimming lesson since 15 December 2021 due to him becoming ill. Ms NJSC also said that the Applicant’s swimming lessons need to be made a priority to keep him from drowning due to his obsession with water.
However, this evidence is somewhat inconsistent with what Ms NJSC told Ms E during the telephone interview which ensued between them in April 2022. In her email of 18 May 2022 to Ms Dole, Ms E stated:
[Ms NJSC] said swimming lessons are not a priority at present, and it will take some time to build [NJSC] up to being able to attend again due to emotional trauma after his illness in Dec 2021 causing a regression in his behaviour and tactile sensitivity. The plan would be for him to continue when this has passed. I suspect that would be after they have returned to their home, and after winter due to the increased risk of infections (note he is immunocompromised) so that could make it approximately September 2022[51].
[51] See R7 of the Respondent’s Tender Bundle.
Ms NJSC said in her evidence that the Applicant would sometimes attend swimming lessons two to three times a week subject to his capacity to cope. This evidence appears to be inconsistent with the evidence that the swimming lessons requested are reasonable and necessary for safety reasons.
Ms NJSC confirmed in her evidence that she relies on the letter written by TD, Learn to Swim Co-ordinator, UQ Sport dated 12 June 2021 and the attachment written by TB[52] in respect of the request made for the Applicant for weekly swimming lessons to be provided by a swim instructor from AUTISM SWIM for 30 minutes three times per week.
[52] See A16 of the Applicant’s Tender Bundle.
In his cross-examination, Mr Nolan questioned Ms NJSC as to whether she planned on using the $600.00 that is already allocated to the Applicant’s Core Supports Budget to be used for swimming lessons (not group lessons) before additional funding is allocated for this purpose. Ms NJSC disagreed with this line of reasoning. Although the current funds remain unutilised, Ms NJSC said in her evidence that the primary purpose for seeking the additional support is because the Applicant needs to be water safe and without it, she proposed that his life is endangered. Ms NJSC said that the existing funding ($600.00) is insufficient for what she believes the Applicant needs and will not cover many lessons. Ms NJSC said the request for this support was verbally advised to her by the swim instructors at UQ.
Evidence given by Dr S, Clinical Neuropsychotherapist
Dr S holds several undergraduate and postgraduate university qualifications. She holds a Bachelor of Arts in Psychology, a Bachelor of Psychology (Hons), a Master of Counselling and Psychotherapy, a Master of Special Education specialising in educational practice, a Master of Education, a PhD centring around neuropsychology, and is currently undertaking a Master of Neuroscience through the University of New England. Dr S is registered to practice as a Psychotherapist and a Counsellor in Queensland through the Australian Counselling Association. Further, Dr S is registered with the International Association of Applied Neuroscience. She is also registered as a specialist teacher in vision impairment through study. Finally, Dr S is a Member of the Australian Psychological Society and an Affiliate member of the American Psychological Association.
Dr S provides early childhood intervention supports to children under the age of seven. Part of her professional practice is to help children develop cognitive skills through different forms of therapies. Dr S has prepared two reports regarding the Applicant that include a BMP to be implemented and provided by her with different costings. The report dated 21 April 2022 is for present purposes the relevant report[53].
[53] See A6 of the Applicant’s Tender Bundle.
Dr S said in her evidence that the opinion in her report is about a plan that she has developed to assist the Applicant modify his problematic behaviours. Dr S said that her report has been prepared for several purposes regarding the Applicant. Firstly, that the report was prepared as a method of development of a dialogue of communication between the Applicant’s various care providers in order to provide them with an understanding of the Applicant’s subjectivity or identity. Importantly, the report of Dr S develops a safety plan to help provide a plan for the Applicant if he poses a risk to himself or others. Another relevant aspect of Dr S report is to enable a platform to support the Applicant’s care providers in how to approach behavioural interventions in the event of problematic behaviours. Broadly speaking, the report of Dr S provides a broad framework in respect of intervention therapies to help those involved in the Applicant’s ongoing care to manage any problematic behaviours.
Dr S confirmed in her evidence that she recommended that the Applicant receives fortnightly therapies from Dr S over 48 weeks of the year. Dr S said that her proposed fortnightly therapy sessions should be reviewed following 48 weeks of therapy due to the severity of his clinical presentation. Dr S said that there is likely to be improvements in the Applicant’s behaviour after six months of intensive therapy. This evidence suggests that there would be some areas which improved more than others. Dr S also said that a regular review helps maintain the level of improvement in the Applicant’s therapy goals. Dr S recommends long-term therapy for the Applicant due to the complexity and severity of the Applicant’s disability. Dr S also makes note of the fact that the Applicant is a high risk behaviourally and his condition if untreated may escalate. Moreover, it is expected in the therapy that there may be regressions in the Applicant’s behaviour whilst improvements in others.
Dr S said in her evidence that in her opinion the Applicant requires 1:1 level of care to maintain the benefits of therapy in the long-term. Dr S recommends that the Applicant receive 1:1 support of in-home care of constant supervision, 24 hours each day and night in order to give the Applicant the best chance of achieving his goals and remaining safe. Dr S highlighted the need for an early childhood development program that provides support rather than a mainstream school. This would mean that people who are specialised would be assisting the Applicant reach his behavioural goals. Without the supports recommended, according to Dr S, the Applicant may regress significantly and is unlikely to make any improvements. The Applicant needs ongoing therapy to reinforce appropriate behaviours.
During cross-examination, Dr S was asked about whether informal supports such as the familial unit were equipped to provide the level of in-home care and support as requested for the Applicant. Dr S said in her evidence that it is possible for the Applicant’s family, including his parents to engage in 1:1 support of in-home care to the Applicant, however, she also makes the point that qualified or specialised workers may be of assistance.
Dr S recommended in her evidence that the Applicant’s parents attend parenting coaching because of the importance of a whole of family approach. This is so the Applicant has the best opportunity of having his learning and development goals reinforced and achieved with the assistance of his parents.
Dr S discussed in her evidence the pertinence of a specialised school for the Applicant to attend in order to achieve his goals and aspirations in collaboration with the Applicant’s allied health care providers.
Dr S was questioned about the Applicant’s attendance in the Early Childhood Development Program that he had until recently attended one day per week. Dr S was questioned about the appropriateness of the Applicant attending mainstream childcare or kindergarten as opposed to the education programme run by Autism Queensland. Dr S was also referred to the opinion given by Ms E in her supplementary report of 15 July 2022. Dr S said in her evidence that it would be counter-intuitive for the Applicant to attend a mainstream school due to there being a risk to the Applicant and others. This evidence by Dr S conflicts with that of Ms E.
Evidence given by Ms P, Senior Occupational Therapist
Ms P is a qualified Occupational Therapist and registered to practice in Queensland. Ms P has provided early intervention therapy to the Applicant since January 2020. In addition to her oral evidence, three reports prepared by Ms P and dated 8 August 2020, 4 June 2021 and 3 June 2022 were lodged with the Tribunal.
During cross examination, Ms P was questioned regarding the absence of a specific number of recommended hours of in-home support in her reports. Mr Nolan asked Ms P whether she had sufficient information to give an opinion on the appropriate number of hours of in-home support. Although Ms P said that she believed she had enough information, she went on to say that she had not undertaken a functional capacity assessment of the Applicant, and that as an early intervention specialist, her reports are developmental assessments which review the Applicant’s annual progress. Ms P then deferred to Dr S’ opinions relating to the in-home support worker. As noted by the Respondent in their written submissions, Dr S’ opined that a functional capacity assessment was “very appropriate” to determine the recommended number of hours of in-home support.
Ms P was also questioned in relation to her recommended modifications of the family home including the erection of a higher fence, an installation of an induction stove and cabinetry with magnetic locks. In her evidence, Ms P accepted that she had not been to the family home and that her recommendations were based on the photographs she had been provided.
Ms P also provided evidence in relation to the Applicant’s request for climbing equipment. In her report dated 3 June 2022, Ms P opines that due to the Applicant’s diagnoses of ASD and ADHD, the Applicant requires deep pressure and movement input in the home environment. In this report, Ms P recommends that the Applicant be provided with an ‘Explore and Learn Package’ which would enable the Applicant to receive deep pressure and movement input in the home environment and divert the Applicant from engaging in unsafe climbing behaviours.
Evidence given by Ms E, Senior Occupational Therapist
The Tribunal also heard evidence from Ms E, Senior Occupational Therapist (‘Ms E’). Ms E’s qualifications include a Bachelor of Health Science (Occupational Therapy) and a registration to practice as a Senior Occupational Therapist by the Australian Health Practitioner Regulation Agency.
Three reports prepared by Ms E were lodged with the Tribunal. An initial report dated 17 May 2022, and two supplementary reports dated 15 July 2022. An email from Ms E to Ms Suzy Dole dated 18 May 2022 was also filed. Ms E also provided oral evidence at the substantive hearing.
During evidence in chief, Ms E was asked what would ordinarily be required to provide an opinion on the number of hours or type of in-home supports that would be required to meet an individual’s needs. Ms E said that generally, a functional capacity assessment would be completed, which would involve interviewing the participant’s parents as well as observing the child in their home environment.
The Respondent also asked Ms E about what would be required to provide an opinion on proposed home modifications. Ms E said that an in-person assessment of the home would be required to be compliant with the “OT Board Code of Conduct”[54] and that for complex home modifications, Ms E indicated that an occupational therapist with extensive experience in this area would be appropriate.
[54] See page 90 of the Transcript dated 19 July 2022.
During cross-examination, Ms E was asked questions regarding the Applicant’s request for 1:1 support of in-home care of 24-hour constant supervision. As a viable alternative, Ms E opined that the Applicant could be enrolled in a Queensland Kindergarten program in 2023. Further, that the Applicant would be eligible for the assistance of an Inclusion Support Worker and/or Kindergarten Inclusion Support Scheme. This opinion seems ambitious as Ms E was asked whether the Applicant would be “well placed” to commence kindergarten in 2023, and in response, Ms E answered:
“Without being able to assess [the Applicant] I just wouldn’t be able to be in a position to answer that question as accurately as [Ms NJSC] would like”[55].
[55] See page 96 of the Transcript dated 19 July 2022.
Ms E was also unable to answer whether an inclusion support program would be sufficient as she had not assessed the Applicant.
Ms E was questioned regarding the alternative recommendation that the Applicant receive support from babysitters, family and friends in lieu of 1:1 24-hour constant supervision. Ms E was asked why this recommendation did not specify an individual that it well-versed in autism. Ms E said she believed that that a babysitter can be trained to support children with additional needs and that her recommendation would allow the Applicant’s parents to have additional flexible support as required and did not necessarily mean that a babysitter would work in isolation with the Applicant.
Ms E was asked questions relating to her recommendation that motion detectors be installed in the doorways in-lieu of 1:1 24-hour supervision. However, Ms E was unable to comment further on this recommendation as she had not seen the home environment. Ms E was questioned regarding her recommendation the Applicant participate in a 1:1 swimming lesson twice per week. In making this recommendation, Ms E said she took into consideration that children typically participate in swimming lessons once a week, the other therapies in the Applicant’s weekly schedule, and the potential benefit to the Applicant from additional exposure to water outside of swimming lessons. Ms E said beneficial additional exposure may include supervised “bath-time” play. In her oral evidence, Ms E departed from her recommendation in her report dated and indicated one swimming lesson a week combined with additional exposure would be sufficient for a three-year old, given that there would be the expectation of constant supervision. Ms E went on to say that she was unable to find evidence that a higher frequency of more than one 1:1 swimming lesson per week would be beneficial to the Applicant’s safety.
Ms E was asked a series of questions in relation to the requested fencing modifications. Ms E said that the Applicant’s safety would be considered as a part of a functional capacity assessment. As a general point and as an alternative to the requested fencing modifications, Ms E said she would look at other options to reduce the need for the Applicant to climb and identify the underlying reason for this behaviour and attempt to manage it accordingly.
In response to questions regarding kitchen modifications, Ms E went on to say:
This is where the importance of a home assessment is really important to be able to do the functional capacity assessment and also do a home assessment to be able to explore all of those options and discuss those with you as parents of what that would mean. We would obviously have an understanding of the behaviour why that child was at risk in the kitchen and look at prevent that from happening first. So if there was a sensory need that wasn’t being met, we would look at the most least-restrictive ways that we could do first and whether that putting a locked box for sharps and utensils to be put away, for the stove main switch to be off so that the child couldn’t turn the stove on at all, we would look at those options and then work our way to the more complex modifications if that was required. But we would do that in conjunction with the behaviour supports as well and other stakeholders. Often we look at the reasons for those underlying behaviours and it could be related to communication, it could be related to sensory, it could be a wide range of reasons and it’s really important that we understand that first before we make recommendations. Ms E went onto say:
Obviously children with autism are at a higher risk due to their behaviours and lack of safety awareness, so absolutely that is something we would discuss and take seriously as part of a functional capacity assessment and we would look at alternatives with assistive devices that could keep him safe but the understanding would be that a three year old generally has supervision at all times[56]
[56] See page 112 of the Transcript dated 19 July 2022.
Ms E was questioned in relation to the Applicant’s request for a climbing frame. Ms E indicated that the frame would not be beneficial to the Applicant and said that she would not encourage a child who is engaging in dangerous climbing behaviours to climb other objects and said this “would just be developing their climbing skills and making them more proficient”. Similar to the above, Ms E went on to say that from an occupational therapy perspective, she would attempt to identify “the underlying reason why [the Applicant’s] body is seeking those climbing behaviours[57]” and attempt to manage this behaviour.
[57] See page 13 of the Transcript dated 19 July 2022.
DISCUSSION
Consideration of the Applicant’s request for 1:1 support of in-home care of constant supervision of the Applicant, 24 hours each day and night
89.The first support the Tribunal must consider relates to the Applicant’s request for approval of 1:1 support of in-home care of constant supervision of the Applicant, 24 hours each day and night. If approved, this will enable carers and/or support workers to provide constant supervision of the Applicant in his home, 24 hours each day and night at a cost of $334,713.08 over a six-month period, or at an annual cost of $669,426.16.
90.This support is sought by Ms NJSC because of the Applicant’s hypervigilant and unsafe behaviours, both inside and outside of the family home. In support of her request, the Applicant relies on the report of Dr S dated 21 April 2022, and in particular the recommendation she gives at page 16 of her report[58]. Relevantly, at page 16 of her report, Dr S opines:
[58] See A6 of the Applicant’s Tender Bundle.
Given the complexity of [NJSC’s] family with two other siblings with ASD and his significant needs on a full-time basis, NJSC and his family require full-time care day and night to bring a manner of normality to the family’s capacity to function. The severity of [NJSC’s] functional deficits grossly exceed his family’s capacity to meet his needs. It is strongly recommended that [NJSC’s] NDIS funding framework be adjusted to provide him and his family the support they need.
91.In her oral evidence given on 20 July 2022, Dr S stated that it was ‘very appropriate’ to see a functional capacity assessment that showed NJSC being observed within his home environment and interviewing both parents, to determine the level of 1:1 support of in-home care that should be provided to the Applicant. In addition, Dr S said that it was ‘absolutely’ appropriate when asked by Mr Nolan about whether talking with other clinicians, educators and other care providers was suitable in developing an appropriate level of 1:1 support of in-home care regarding the Applicant.
92.Ms P, when giving her oral evidence, was referred to two of her reports[59] regarding the Applicant’s progress from the early intervention therapies he has received from Ms P since on or around January 2020. In those two reports, Ms P opines that 1:1 support of in-home care should be provided to the Applicant however she does not in her two reports specify the number of hours. When asked in cross-examination whether she believed she had sufficient information to give that opinion, Ms P said[60]:
[59] See Ms P’s progress report dated 4 June 2021 at A3 of the Applicant’s Tender Bundle and Ms P’s progress report dated 3 June 2022 tendered at the hearing on 18 July 2022 and marked by the Tribunal as Exhibit R6.
[60] See page 31 of the Transcript dated 18 July 2022.
Yes, I believe I have. However - I mean I haven’t done a functional capacity
assessment. I’m an early intervention specialist, so his reports - when I say,
“occupational therapy report,” they’re developmental assessments. So they
reviewed his annual progress. And I would defer to [Dr S’s] recommendations for support worker. So, it may be irrelevant. My comment may have confused you, but my reports that I do are developmentally based, which is - which matches the report that you have - in terms of our annual progress.93.Although in her oral evidence Ms P said she believed she had sufficient information when giving her opinion in her two reports on the number of hours of 1:1 support of in-home care, it was qualified by acknowledging that she had not performed a functional capacity assessment of the Applicant, and that she would ‘defer’ to the recommendations of Dr S.
94.The Tribunal observes that Ms NJSC was asked by the Respondent to give her consent to the Applicant participating in an in-home functional capacity assessment with and Occupational Therapist. However, Ms NJSC refused[61]. Arrangements were then made by the Respondent for Ms E to review the materials lodged with the Tribunal and from her interview with Ms NJSC. Ms E has on that basis prepared three reports[62].
[61] See Exhibit R7.
[62] See Ms E’s primary report dated 17 May 2022 at R3 of the Respondent’s Tender Bundle and Ms E’s two supplementary reports both dated 15 July 2022 tendered at the hearing and marked by the Tribunal as Exhibits R3 and R4.
95.The Tribunal observes from her primary report[63], Ms E made recommendations on the level of in-home care following her review of the materials lodged with the Tribunal and from her interview with Ms NJSC. At pages 8 and 9 of her primary report, Ms E states:
[63] See Ms E’s primary report dated 17 May 2022 at R3 of the Respondent’s Tender Bundle.
Level of Support
[NJSC] would benefit from 1:1 support worker assistance, especially during high care needs times of the day due to the higher level of supervision and hands-on assistance required. This could include the mornings and afternoons/early evenings where his parents are required to perform a high level of multi-tasking and completing activities such as bedtime routines with [NJSC] and his siblings.
For these reasons it is believed the same outcomes could be achieved by a
lower number of core support services and combined with parental caregiving, childcare services (when available) and capacity building services.
The family however is currently in a challenging situation with an increased risk of injury or harm to [NJSC] as he is not able to attend childcare and is in a new and unfamiliar home environment that appears to have caused a regression in his behaviour. This living situation however is temporary and won’t be an issue once he has returned home and has regular routines and usually environment.
In addition to this [NJSC’s] parents appear to be under a high level of stress at present. His mother reports high levels of stress and is a risk of parental burnout. His father also reports high levels of stress, and his GP [Dr K] supports this. In order for parents to be able to take on behavioural strategies and recommendations, they do need to be capable of learning i.e. not stressed and have opportunities to practice the strategies and therefore require a higher level of temporary support to achieve this.
It is recommended for a 6-month period that [NJSC] receive the following level of 1:1 support which will then be reviewed and recommendations to be made accordingly.
It is recommended that for a 6-month period [NJSC] receive 26 hours of supports per week over a 6- month period in addition to two 24-hour in-home respite. This would consist of the following:
• Core Support - 4 hours of core support per day during the weekday and a block of 6 hours to be used over the weekend (this could be 3 hours per day or used as a block in one day) or 26 hours per week to be used in a way that best serves the family. This could be best utilised in the busier, more multi-tasking times of the day such as the morning and early routines.
• Weekend Respite - 2x in home 24-hour weekend respite (in the 6- month period) to enable the parents to have some respite and quality time with their other children and rest. This would include the 6 hours already allocated.
96.The Respondent’s delegate on remittal on 30 June 2022 decided to approve and include the recommendations of Ms E in the Applicant’s Plan. Following Ms NJSC’s request for her son to receive 1:1 support of in-home care, Ms E was asked by the Respondent to provide her opinion regarding that request by way of a supplementary report. In her supplementary report dated 15 July 2022, Ms E opined at page 7:
…
Given the letter provided by [Dr L] recommends [NJSC] does not attend mainstream daycare and the letter from [Ms G] from Montessori Children’s House highlighting the challenges of [NJSC] attending their centre due to insufficient support and supervision, additional support hours may need to be considered.
Given there has not been an opportunity for the therapy and capacity building supports to take place for a long enough period to take effect I am unable to determine their effectiveness and therefore not in a position to comment on a specific number of support hours required to be used in conjunction with the capacity building supports.
97.Ms E states further in her supplementary report of 15 July 2022 the following:
A review of the current NDIS plan in 6 months’ time would allow for the
following:
− For [NJSC] and his parents to build trust and meaningful relationships
with the new support worker/s and determine how 26 hours of support worker assistance works for [NJSC’S] needs and the impact on the family.− For a Behaviour Management plan to be developed and strategies to be
implemented to reduce or eliminate behaviours of concern.− For Occupational Therapy services to develop a sensory program to
assist in [NJSC’S] emotional regulation, develop a family routine and offer
capacity building services such as toilet training.
− For additional allied health services as per the plan to commence
including Speech & Language therapy and psychology.
− For the family to return to their home environment.
− For the family to explore suitable childcare options for now and for Kindy
next year.
− To have further information to determine the effectiveness of the supports
and intervention and if the support needs are required to be adjusted.
98.In her oral evidence, Ms E, responding to the question as to what would need to be done in order for her to provide an expert opinion, including on matters such as the number of hours of 1:1 support of in-home care required for the Applicant, Ms E said:
We would generally do what’s called a functional capacity assessment which would involve interviewing the parents of the child and observing the child in their home environment. That may take place over one extended session or over multiple sessions if we feel like we needed more time. It may then also involve talking to other people who are caregivers in that child’s life, so that may include educators, and it would be also done in conjunction with other therapists and clinicians involved in the care and the intervention provided for that child, to make a comprehensive decision on that.
99.The oral evidence of Dr S and Ms P and Ms E, taken together, goes to the essence of determining whether the Applicant’s request to receive 1:1 support of in-home care, 24 hours each day and night is reasonable and necessary within the meaning of section 34 of the NDIS Act. The consequences of an Applicant to a proceeding before the Tribunal refusing to participate in an independent medical assessment were observed by the Tribunal in MDCT and National Disability Insurance Agency[64] (MDCT):
[64] [2020] AATA 6036.
An unsurprising natural consequence of refusing a request to gather further such information may be that, in some cases, the decision-maker will conclude that it does not have sufficient information to approve particular supports sought by the participant be included in the plan. On review, the consequence of an applicant continuing to refuse to consent to the gathering of certain evidence may lead the Tribunal to conclude that it does not have sufficient information to determine that particular supports sought to be included in the plan are reasonable and necessary and should be funded by the NDIS. It may therefore be in the interests of an applicant for review to participate in the gathering of any relevant evidence[65].
[65] See MDCT at [25].
100.Having regard to the observations made by the Tribunal in MDCT, it was submitted for the Respondent that subsection 34(1)(c) of the NDIS Act is not satisfied in the present case. Subsection 34(1)(c) requires the CEO of the Respondent, or for present purposes, the Tribunal to consider 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’. Part 3 of the Supports for Participants Rules deals with aspects of the criteria in section 34 of the NDIS Act. Rule 3.1 of the Supports for Participants Rules is directed at subsection 34(1)(c) of the NDIS Act. Relevantly, it provides:
Value for money
3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
a. whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
b. whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
c. whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
d. for supports that involve the provision of equipment or modifications:
i.the comparative cost of purchasing or leasing the equipment or modifications; and
ii.whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
e. 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).
101.Subsection 34(1)(c) of the NDIS Act looks at the costs of the support relative to both the benefits achieved and the costs of alternative supports. The analysis goes beyond simply assessing whether there is alternative support with equivalent benefit available at a lower cost. There may be circumstances where the support is unreasonable because the extent of the anticipated benefit does not justify the expense involved in the circumstances[66].
[66] See Comcare v Holt [2007] FCA 405 at [25]-[26], per Mansfield J.
102.If the cost of the support is great but the benefit is only slight or speculative, the support would more readily be seen as unreasonable. Conversely, if the cost is slight but benefit significant, the support would be found to be reasonable. For example, when the factors are more evenly balanced, an evaluative judgment must be made by the decision maker[67].
[67] See Sharman v Evans (1977) 138 CLR 563 at 574, per Gibbs and Stephen JJ.
103.In circumstances where there is alternate support available, there may need to be a balancing assessment involved where the potential benefit of the alternate support is less, but the cost is significantly less. Thus, the extent to which the support has been utilised in the past and the degree of its success should also be relevant. There may be cases, where support like the proposed support in the past has had some therapeutic benefit. However, this may no longer be reasonable due to the extent of the benefit no longer being justified in light of past experience[68].
[68] See Comcare v Holt [2007] FCA 405 at [25]-[26], per Mansfield J.
104.When weighing up the cost and benefit analysis, it must be borne in mind that the purpose of the NDIS Act is to “enable people with disabilities to live as normal a life as possible having regard to their disability. It is not to provide a different category, so as to satisfy every want”[69]. Thus, in making decisions about the provision of support under the NDIS Act, ‘difficult judgments will often need to be made as to how limited health funds can best be allocated to the maximum advantage of the maximum number of recipients of those funds’[70].
[69] See MDCT and the National Disability Insurance Agency [2020] AATA 697 at [62].
[70] See LWVR and the National Disability Insurance Agency [2021] AATA 4822 at [12].
105.In the present case the cost to fund the 1:1 support of in-home care at the level that has been requested is substantial. Accordingly, the potential benefit of the support needs to meet a high threshold before the Tribunal can be satisfied that the benefit of the support outweighs the significant cost of the support. As has been established, the evidence thereof does not demonstrate to the Tribunal that the potential benefit of the support outweighs the significant cost of the support. In the circumstances, an in-home functional capacity assessment of the Applicant in his family home is required as without this assessment the Tribunal cannot make an objective assessment of whether the requested support is reasonable and necessary within the meaning of subsection 34(1)(c) of the NDIS Act.
106.Although the Tribunal is satisfied there are serious concerns relating to the Applicant’s safety, the lack of a functional capacity assessment by a suitably qualified Occupational Therapist creates an evidentiary gap that prevents the Tribunal from making an objective assessment of the Applicant’s needs and therefore leaves the Tribunal unable to determine whether the requested support is reasonable and necessary within the meaning on s34(1)(c) of the NDIS Act.
107.It was submitted for the Respondent that subsection 34(1)(e) of the NDIS Act is also not satisfied in respect of the Applicant’s request to receive 1:1 support of in-home care. Subsection 34(1)(e) of the NDIS Act requires the CEO of the Respondent, or for present purposes, the Tribunal to consider whether 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. Rule 3.4 of the Support for Participants Rules expands on the terms of subsection 34(1)(e) of the NDIS Act. In relation to children, Rule 3.4 states:
3.4 In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
(a) for a participant who is a child:
(i) that it is normal for parents to provide substantial care and support for children; and whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age; and
(iii) the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and
(iv) whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing.
…
108.The Respondent referred the Tribunal to the NDIS Operational Guidelines to elaborate on the matters provided for in Rule 3.4 of the Support for Participants Rules:
When we fund supports under the NDIS, we have to think about whether it’s reasonable to expect your informal supports to provide that support. We can’t fund supports that an ordinary person would think is reasonable to expect friends, family or the community to provide for you.
Informal supports are the help and support you get from friends, family and the community. They are called ‘informal’ because you don’t pay for them, and they’re not part of a formal agreement. They are the usual things friends and family do for us, and with us.
Most of us get some kind of help and support from friends and family. In our society, we expect that friends, family and our community will support each other and help each other out when they need it.
A good example is families who have young children. In our community, we expect families will provide most of the support a young child needs. They will change a child’s nappy, make sure they are safe and drive them around places.
Grandparents, uncles and aunties often have a role to play in supporting young children as well. Neighbours and friends might also help care for the child.
As a child gets older, our society’s expectations of the role of the family and community in caring for the child changes. For example, we expect schools to help support the child’s learning needs.
We also usually expect the role of family in providing personal care for a child would reduce as they get older and develop new skills and independence. But families are usually still responsible for things like food, emotional support, decision-making and providing a safe home.
109.The Respondent also referred the Tribunal to the observations of Deputy President Humphrey’s in BIJD and National Disability Insurance Agency[71] on determining whether it is reasonable to expect a participant’s family to provide support. The observations made by Deputy President Humphreys are set out below:
[71] [2018] AATA 2971.
…
[83] Secondly, it is important to focus on the nature of the support being sought in
order to determine whether it is reasonable to expect (in this case) the participant’s family to provide that support. The support being sought here, as put to the Tribunal by BIJD, is therapeutic and developmental assistance to [BIJD] in the form of in-home care, the principal form for which assistance is interaction by [BIJD] with his carer and, to a lesser extent, with other adults outside his home. The Tribunal must ask itself whether this – the postulated primary purpose of the support – is reasonably delivered by the NDIS rather than by [BIJD’S] family members.[84] It seems to me that, so characterised, the support is one which is most
reasonably delivered by James’s family. Providing benefits to a developing child
of that kind (benefits which, according to the literature, are important
for all children, able-bodied and disabled) are commonly the responsibility in
contemporary Australia of a child’s own family, whether through interactions
facilitated by family members or through the provision of childcare – indeed,
very often by both. The fact that [BIJD] cannot access childcare does not
detract from the observation that the expectation of the community would be
that his family would facilitate these interactions, interactions that come at littleexpense and without the need for specialist intervention or facilitation. Paragraph (e) refers to what it is reasonable to expect families, carers... to provide; it does not say what it is reasonable to expect the participant’s family, the participant’s carers... to provide. The choice of language makes it clear that the test is one of community expectation of what should be the responsibility of a family in general, rather than of the particular family seeking this support. Notwithstanding that childcare is sometimes taxpayer subsidised, it is the general expectation of the Australian community that families bear the cost of the care of children below school age. Similarly, I consider that it would also be the community’s expectation that a child unable, for medical reasons, to interact with other children would obtain the benefits of interaction with adults through the activities of their own families, and not at community expense.
[85] BIJD’s submissions on paragraph (e) placed emphasis on the risk to her mental
health of not being able to undertake paid employment during the days James obtains in-home care, and on the financial impact on the family of such a decision. I doing so, she invoked the criterion referred to in Rule 3.4(a)(iii) – family wellbeing. I accept, as indicated above, that there is some risk to the psychological and financial well-being of James’s family if the support is not provided. However, the criteria in Rule 3.4 cannot supplant the criteria in the Act itself, specifically s 34(1)(e). The latter elevates the question of community expectations regarding the responsibility of families to the higher order of a decision maker’s consideration. In any case, Rule 3.4 suggests that no greater weight should be given to the wellbeing of the family than to the premise that it is normal for parents to provide substantial care and support for children (3.4(a)(i)).110.The primary purpose of the 1:1 support of in-home care has been requested for the Applicant based on there being a need for the Applicant to be constantly supervised because of his hypervigilance and dangerous and unsafe behaviours associated with his severe and complex ASD. The requested support is also sought because the Applicant’s parents are unable to provide the high level of care and supervision to their son at all times.
111.Accepting that the Applicant’s care needs are substantially greater than those of other children of a similar age, it was submitted for the Respondent that any child of that age requires constant supervision. This suggests to the Tribunal that the Respondent’s position seeks to compare what are two very different, and in this case, complex situations. This appears to be an overly simplistic observation, made without having proper regard to the evidence, including the Applicant’s parent’s responsibility of raising three young children with complex needs requiring a greater level of supervision.
112.It is however difficult at this time for the Tribunal to engage in an objective assessment regarding the number of hours of 1:1 support of in-home care the Applicant should receive to keep him safe and appropriately supervised in the absence of an in-home functional capacity assessment by a suitably qualified Occupational Therapist.
113.Lastly, it was submitted for the Respondent that subsection 34(1)(f) of the NDIS Act is also not satisfied in respect of the Applicant’s request to receive 1:1 support of in-home care. Subsection 34(1)(f) of the NDIS Act contemplates whether the support is most appropriately funded or provided through the NDIS and is not more appropriately funded or provided through other systems of service delivery or support services. Rules 7.8 to 7.10 of the Support for Participants Rules state:
Early childhood development
7.8 The NDIS will be responsible for personalised supports, specific to a child’s disability (or developmental delay), which are additional to the needs of children of a similar age and beyond the reasonable adjustment requirements of early childhood development service providers.
7.9 The NDIS will be responsible for early interventions for children with disability (or developmental delay) which are:
(a) specifically targeted at enhancing a child’s functioning to undertake activities of daily living, but not supports which are specifically for the purpose of accessing a universal service such as school readiness programs that prepare a child for education; and
(b) likely to reduce the child’s future support needs, which would otherwise require support from the NDIS in later years, including through a combination and sequence of supports.
7.10 The NDIS will not be responsible for:
(a) meeting the early childhood education and care needs of a child with a developmental delay or disability required by children of a similar age including through inclusion supports that enable children to participate in early childhood education and care settings; or
(b) supports, which are clinical in nature provided in the health system, including acute, ambulatory or continuing care; or
(c) new-born follow-up provided in the health system, including child and maternal health services.
114.The Tribunal is also of the view that it is not possible for the Tribunal to make an objective assessment of whether the 1:1 support of in-home care is reasonable and necessary for the purposes of subsection 34(1)(f) of the NDIS Act and Rules 7.8 to 7.10 of the Supports for Participants Rules because there is no in-home functional capacity assessment and engagement with the Applicant’s relevant care providers.
Consideration of the Applicant’s request for three 30-minute weekly swimming lessons with a swim instructor from AUTISM SWIM at a cost of $55 per lesson.
115.The second support that the Tribunal must consider relates to the Applicant’s request for additional weekly swimming lessons to enable the Applicant to attend three 1:1 30-minute lessons each week with a swim instructor from AUTSIM SWIM at a cost of $55.00 for each lesson over a 26-week period at a total cost of $4,290.00. This support is sought by Ms NJSC because she wants the Applicant to develop swimming skills to become water safe.
116.This request is in addition to the $600.00 that has been allocated to the Applicant’s Social Community and Civic Participation Supports Budget to fund the gap for specialised swimming lessons while suitable therapeutic strategies are implemented to assist the Applicant to develop the capacity to re-join mainstream lessons.
117.Ms NJSC confirmed in her evidence that the Applicant has not attended a swimming lesson since around 15 December 2021 when he was hospitalised and diagnosed as immunocompromised, and he that the $600.00 remains unutilised in the Applicant’s Social Community and Civic Participation Supports Budget.
118.As $600.00 remains unutilised, the Tribunal is of the view that subsection 34(1)(d) of the NDIS Act is not satisfied. Subsection 34(1)(d) of the NDIS Act requires the CEO of the Respondent, or for present purposes, the Tribunal to be satisfied that the support being requested will or is likely to be effective and beneficial to a participant, having regard to current good practice. Rule 3.2 and 3.3 of the Support for Participants Rules expands on the terms of subsection 34(1)(d) of the NDIS Act. Rules 3.2 and 3.3 are set out below:
Effective and beneficial and current good practice
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
119.As the Applicant has not attended swimming lessons for over a year, this suggests that there is a lack of an evidentiary basis to establish that the additional requested support will be, or is likely to be, effective and beneficial for the Applicant, having regard to current good practice.
Consideration of the Applicant’s request for the purchase of the Explore and Learn Package Climbing Frame Equipment
120.The third support the Tribunal must consider relates to the Applicant’s request for the purchase of the Explore and Learn Package Climbing Frame Equipment from Fox Wood Co in the amount of $760.00[72].
[72] See T3C of the T-documents for a copy of print out from the internet of and A10 of the Applicant’s Tender Bundle. However, the document at A10 does not appear to contain any information about the Explore and Learn Package Climbing Frame Equipment from Fox Wood Co. Rather, it contains information about the cost to purchase a ‘Pikher Jungle Gym – W3 – TINNITOTS – Montessori Inspired Indoor gym for $899.00’.
121.In their Assistive Technology Report dated 18 June 2021[73], Ms P and Ms M (Occupational Therapist) note that due to the Applicant’s diagnosis of ASD and ADHD, he requires deep pressure input to support his regulation. They recommend the purchase of the Climbing Frame Equipment to allow the Applicant to access safe ways to receive deep pressure and movement input at home. They say that the Climbing Frame Equipment will be used by the family to divert the Applicant from unsafe activities (such as climbing on furniture, and on kitchen benches and over fences) to engage in more safe and appropriate activities. They note that the Applicant’s family are unable to take him to the park as he often runs away. The report states that the climbing frame is a cheaper solution than long-term additional funding for support workers.
[73] See A9 of the Applicant’s Tender Bundle.
122.There is no evidence before the Tribunal that the Climbing Frame Equipment is a specifically disability related item. Rather, it appears that the item has been designed for use by children of any age. In her primary report, Ms E makes the following observations in respect of the Climbing Frame Equipment:[74]
[74] See Ms E’s primary report of 18 May 2022 at R3 of the Respondent’s Tender Bundle.
Climbing is a fun and age-appropriate skill to develop in a three-year-old. [NJSC] is already reported to be confident and proficient in climbing which has generalised into climbing less desired places around the house and the backyard fence.
The concern exists that by providing him with a climbing frame he will continue
to develop his climbing skills which may provide him with more strength and
abilities to climb these less desired places.There are other opportunities for him to receive deep pressure and regulation
benefits (that the climbing is providing him with) that don’t involve expensive
pieces of equipment such as the development of a Sensory Diet program that
can be pursued through capacity building supports.It is also believed that the cost of the climbing frame would fall under general
parent costs/responsibility and while it could be beneficial for child motor
development it does meet the criteria for reasonable and necessary as per
NDIS guidelines and is not specific to his diagnosis.
Ms E made further observations on the Climbing Frame Equipment in her oral evidence[75]:
[75] See Transcript at pages 113-14.
Just speaking generally from an occupational therapy perspective, if we had a child that was participating in high-risk climbing behaviours, I wouldn’t actually encourage them to climb other items such as the climbing frame because I would feel we would just be developing their climbing skills and making them more proficient at that stage. They’ve obviously got well developed climbing skills and that’s why they can climb fences and other furniture. What I’d be looking at is the underlying reason why their body is seeking those climbing behaviours, what are they getting from that. Whether
it’s attention-seeking, whether it’s proprioceptive input through their joints. If that was the case, I would be developing a sensory program that gave that child that input which can be done through star jumps and animal walks and jumping on the trampoline. Those sort of things is what I would incorporate into a sensory program and that would have to be occurring regularly to give that child what they need. But that would also need to be done in conjunction with a behaviour support program as well to manage that behaviour side of it too.
124.It was submitted for the Respondent that the climbing frame equipment is not likely to be beneficial to satisfy the threshold required to meet subsections 34(1)(a), (b), (c) or (d) of the NDIS Act. In fact, Ms E’s opinion is that it would not be beneficial to encourage further climbing behaviour in circumstances where a child is already participating in unsafe behaviour associated with climbing. Further, that this behaviour should be addressed through therapy supports. The Rules also provide the following criteria:
General criteria for supports
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; or
(b) it is not related to the participant’s disability; or
(c) it duplicates other supports delivered under alternative funding through the NDIS; or
(d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b) costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
125.The Operational Guidelines provide the following commentary in this respect:
Is the support related to your disability?
We can’t fund a support if it’s not related to your disability. This means there must
be a direct link or a connection between your disability and the supports we fund.
We look at whether the support addresses your disability support needs. Your
disability support needs are those that arise from, or are caused by, your
disability.
For example, we wouldn’t usually fund things like:
• standard televisions
• standard household furniture such as dining chairs
• upgrades to assistive technology and home modifications that are not related to disability needs, such as marble tiling or leather materials
• flights to go on a holiday
• a car to get to work because there are no public transport options
• a gym membership to get fit
• a swimming pool to relax in summer.This is because you’re unlikely to need these supports as a result of your disability
support needs. They are things that all people, with or without disability, might want or need.Usually, there won’t be a direct link or connection between these things and your disability support needs. Having a disability doesn’t usually affect whether someone needs or wants these types of things.
Example
Alan needs some changes to his house, so he can use his bathroom and kitchen
in his wheelchair. He also wants to set up an outdoor entertainment area for when
his friends visit. We may be able to fund home modifications so he can access
areas of his home such as his bathroom or kitchen. He needs the home
modifications because he can’t access those areas due to his disability and
needing to use a wheelchair. Alan needs the support because of his specific
disability support needs. Alan will need to pay for the outdoor entertainment area,
as it’s not related to his disability. He doesn’t need the entertainment area
because of his disability, it’s just something he would like so he can have his
friends over for a barbecue.126.The Climbing Frame Equipment is an item that all children, with or without disability, might
want or need. In the premises, the Tribunal considers that it is not related to the disability of the Applicant, pursuant to rule 5.1(b) of the Support of Participant Rules.
127.Furthermore, the evidence of Ms E suggests that the Climbing Frame Equipment may further develop the Applicant’s climbing activities which could lead to further unsafe behaviours. Therefore, the Tribunal considers the approval of the Climbing Frame Equipment contrary to rule 5.1(a) of the Support for Participants Rules.
Consideration of the Applicant’s request for weekly allied health therapy supports
128.The fourth support the Tribunal must consider relates to the Applicant’s request for weekly allied health therapy supports. On behalf of the Applicant, Ms NJSC sought occupational therapy supports over 48 weeks of the year and speech pathology supports over 48 weeks of the year.
129.Ms NJSC has lodged with the Tribunal evidence from Ms P which recommended the Applicant receive weekly occupational therapy supports over 48 weeks of the year[76]. This recommendation was also confirmed by Ms P on 18 July 2022 during her oral evidence.
[76] See Ms P’s report dated 4 June 2021 at A13 of the Applicant’s Tender Bundle and Ms P’s report dated 3 June 2022 tendered by the Respondent at the hearing and marked by the Tribunal as Exhibit R6.
130.Ms NJSC also lodged with the Tribunal and provided to the Respondent evidence from the Applicant’s Speech Pathologist, Ms R[77]. In her undated letter, Ms R recommended that the Applicant receive speech pathology therapy supports over 48 weeks of the year.
[77] See Ms R’s Speech Pathology Assessment Summary Report, undated, lodged with the Tribunal by Ms NJSC on 18 July 2022.
131.The Respondent accepts the recommendations of Ms P and Ms R.
132.Turning to the Applicant’s request for weekly exercise physiology therapy supports, Ms NJSC is seeking that the Applicant receive five days per week of exercise physiology over 48 weeks of the year or 120 hours over a six-month period at a cost of $23,278.80.
133.In support of her request, Ms NJSC has lodged with the Tribunal a letter from Ms W, Exercise Physiologist, Q Paediatrics, dated 4 June 2022[78]. In her letter, Ms W states that she assessed the Applicant at her clinic on 2 June 2022. Ms W recommended that the Applicant receive five days per week of exercise physiology over 48 weeks of the year or 120 hours over a six-month period at a cost of $23,278.80.
[78] See Ms W’s letter of 2 June 2022 at A5 of the Applicant’s Tender Bundle.
134.Ms W’s letter is brief and vague. It is not at all clear to the Tribunal whether Ms W is the Applicant’s treating Exercise Physiologist. Ms W provides no clinical reason(s) as to why she has recommended that the Applicant should receive five days each week of exercise physiology over 48 weeks of the year or 120 hours over a six-month period at a cost of $23,278.80. It is also not at all clear to the Tribunal from Ms W’s letter how long any treatment of the Applicant would go for. The Tribunal was not able to ask any questions of Ms W as she was not called as a witness to give evidence at the Applicant’s hearing. In these circumstances, the Tribunal cannot be satisfied that the reasonable and necessary criterion in section 34 of the NDIS is satisfied.
Consideration of the Applicant’s request for modifications to the Fencing, Cabinets and an Induction Stovetop
135.The fifth and sixth supports the Tribunal must consider relate to the Applicant’s request to modify the family home by increasing the height of the yard fence, installing new kitchen cabinetry with magnetic locks, and the installation of an induction stove top. These supports are being requested by Ms NJSC because Ms NJSC wants to keep her son safe.
136.The total cost to fund the modifications to the fence is $6,185.00[79] (inclusive of materials and installation and labour). The modifications to the kitchen cabinetry with magnetic locking doors and an induction cook top can be installed at a cost of $8,781.52[80] (inclusive of material, delivery and installation of cabinets including the refrigerator, magnetic locks, and stove top).
[79] See A18 of the Applicant’s Tender Bundle for a copy of the quotation of 27 June 2020 prepared by RR.
[80] See A22 of the Applicant’s Tender Bundle for a copy of the quotation given by Quick kitchens.
137.The Assistive Technology Report prepared by Ms P and Ms M, dated 15 June 2021 notes that the Applicant displays behaviours that are not typical for a child his age, including climbing on the fridge and on the kitchen bench and climbing over the fence and out of his cot, and starting the stove. He does not respond to direct requests and instructions due to his ASD, significant communication delays and sensory avoidance behaviours, resulting in frequent “flight” moments where he attempts to hide in small places including cabinets and the fridge. He is not at an age where safety concepts can be learned. Ms P and Ms M recommended in their report that minor home modifications are required to keep the Applicant safe in the home, namely a higher fence, an induction stove (he has previously turned on the gas stove to start a fire while his mother was out of the room), cabinetry and magnetic locks (new cabinets need to be installed so the magnetic locks can be installed, and the fridge needs to be placed inside a cabinet).
138.In late February 2022, the Applicant’s home was damaged by a build-up of extensive black mould in the kitchen and in the laundry, and the severe flooding that affected parts of Brisbane. The Applicant and his family currently reside in temporary accommodation while their home is being restored. It is unclear to the Tribunal when the Applicant and his family will return to their home.
139.Ms P accepted when giving her oral evidence to the Tribunal that she had not seen the Applicant’s home, when making the recommendations contained in her Assistive Technology Report. She said in her evidence that she had only seen “photos”[81]. none of which have been lodged with the Tribunal.
[81] See Transcript of 18 July 2022 at page 36.
140.Dr S accepted when giving her oral evidence to the Tribunal that in making home modifications, she would like to see an in-person assessment of the home be completed by an Occupational Therapist to determine what safeguards are appropriate, “provided such an individual is going to be [conducting] extensive interviews with the family”[82].
[82] See the Transcript of the 18 July 2022 at page 40.
141.In her oral evidence, Ms E made the following additional observations[83]:
[83] See the Transcript of the 19 July 2022 at page 90.
In order to be compliant with the OT Board Code of Conduct we would require
an in-person assessment of that home environment and that would – for
complex home modifications that would be an occupational therapist that has
extensive experience in working predominantly in that space too.142.Ms E spoke of the importance of there being an in-home functional capacity assessment being conducted by an Occupational Therapist[84]:
[84] See the Transcript of the 19 July 2022 at page 112.
This is where the importance of a home assessment is really important to be able to do the functional capacity assessment and also do a home assessment to be able to explore all of those options and discuss those with you as parents of what that would mean. We would obviously have an understanding of the behaviour why that child was at risk in the kitchen and look at prevent that from happening first. So if there was a sensory need that wasn’t being met, we would look at the most least-restrictive ways that we could do first and whether that putting a locked box for sharps and utensils to be put away, for the stove main switch to be off so that the child couldn’t turn the stove on at all, we would look at those options and then work our way to the more complex modifications if that was required. But we would do that in conjunction with the behaviour supports as well and other stakeholders. Often we look at the reasons for those underlying behaviours and it could be related to communication, it could be related to sensory, it could be a wide range of reasons and it’s really important that we understand that first before we make recommendations.
143.Given that the Applicant and his family are not presently living in the family home and given the serious safety concerns raised by Ms NJSC and the Applicant’s care providers, in the circumstances, an assessment of potential modifications to the family home that the Applicant is not presently living in, and is currently being restored, is purely speculation. The Tribunal is of the view that that the approval of home modifications as requested cannot be properly assessed until the Applicant and his family return home.
Consideration of the Applicant’s request for the implementation of a Behaviour Management Plan and Early Intervention Therapy
144.The seventh support the Tribunal must consider relates to the Applicant’s request for the implementation of a Behaviour Management Plan and Early Intervention Therapy. In her oral evidence, Ms NJSC spoke of difficulties in being able to access the funds in the Applicant’s Capacity Building Supports Budget for the implementation of a BMP and Early Intervention Therapy.
145.It has been confirmed by the Respondent that the funds can be accessed. The funds that have been allocated to the Applicant’s Capacity Building Supports Budget cannot be provided to Dr S to implement the BMP and Early Intervention Therapy she proposes in her report of 21 April 2022. This is because the BMP was developed by Dr S. Dr S confirmed in her oral evidence that she is not registered as a Behaviour Support Practitioner.
146.Rule 17 of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) (the Restrictive Practices and Behaviour Support Rules) provides that only a registered ‘Behaviour Support Practitioner’ can provide the specialist behaviour support services. The Tribunal has no discretion to waive the condition of registration.
147.Unless Dr S becomes registered, rule 17 of the Restrictive Practices and Behaviour Support Rules preclude her from implementing the BMP. The Tribunal notes that it is open to the Applicant to find an alternative provider, who is registered for the implementation of the BMP.
SCHEDULED REVIEW OF THE APPLICANT’S PLAN
As stated at paragraph [4], the Applicant’s Plan will end on 29 December 2022. A scheduled review of the Applicant’s Plan will be conducted by the CEO of the Respondent either before 29 December 2022 or sometime after that date.
The upcoming scheduled review presents an opportunity for the Applicant and his parents to participate in an in-home functional capacity assessment after they return to their family home on a permanent basis.
CONCLUSION
For the reasons given above, the Tribunal has decided to affirm the decision under review.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 151 (one hundred and fifty-one) paragraphs are a true copy of the reasons for the decision herein of Member P Smith
..................................[SGD]......................................
Associate
Dated: 23 December 2022
Date(s) of hearing: 18, 19 & 20 July 2022 Date final submissions received: 17 August 2022 Advocate for the Applicant: Ms NJSC Counsel for the Respondent: Mr P. Nolan Solicitors for the Respondent: Ms S. Dole, Sparke Helmore
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