NMFF and National Disability Insurance Agency [2024] AATA 3182 (6 September 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s):2022/10388
Re:NMFF
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member P French
Date:6 September 2024
Place:Sydney
The Tribunal orders:
Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal decides that the respondent’s decision made on 18 March 2024 pursuant to s 47A of the National Disability Insurance Scheme Act 2013 (Cth) be set aside and remits the matter for reconsideration with directions that:
1.The statement of participant supports specifies that the reasonable and necessary supports include:
‘Core supports’ category:
(a)Transport subcategory: transport funding in the amount of $6,240.00;
(b)Assistance with self-care subcategory:
(i)15 hours per week at weekday daytime rates;
(ii)3 hours per week at Saturday rates;
(iii)3 hours per week at Sunday rates.
‘Capacity building supports’ category:
(a)‘other professional’ sub-category:
(i) 47 hours of occupation therapy support, which is to include 7 hours to allow for assessment of home modifications;
(ii) 30 hours of psychology support, which includes 4 hours for report writing.
2.The support listed at paragraph 1.1(a) replaces the Applicant’s existing transport funding.
3.The support listed at 1.2(a)(i) replaces the Applicant’s existing support for occupational therapy.
4.The support listed at 1.2(a)(ii) replaces the Applicant’s existing support for psychology.
5.All other supports in the Applicant’s existing statement of participant supports, excepting any one-off assistive technology supports already used, are to be replicated pro-rata from the date on which the supports specified above are included in the Applicant’s statement of participant supports until the reassessment date.
6.The management of funding for reasonable and necessary supports under the Applicant’s plan is to remain the same as the management of funding for those supports as specified in the statement of participant supports dated 18 March 2024.
7.The date by which the Agency must reassess the Applicant’s plan is to remain the same as that specified in the plan dated 18 March 2024.
.......................[SGD].................................................
Member P French
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – National Disability Insurance Agency – reviewable decision of Chief Executive Officer – preparing participants’ plans – approval of statement of participant supports – reasonable and necessary supports – whether requested support will assist the participant to pursue her statement of participant goals and aspirations – whether requested support represents value for money – whether requested support is effective and beneficial – whether requested support is most appropriately funded or provided through the NDIS – decision under review set aside and remitted for reconsideration with directions
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 19A, 25, 26, 37, 38AA, 43
Disability Discrimination Act 1992 (Cth), ss 4, 22, 31
Disability Standards for Education 2005 (Cth), c; 1.5, 2.1, Parts 4 - 8.
National Disability Insurance Scheme Act 2013 (Cth), ss 3, 4, 17A, 24, 31, 32, 33, 34, 35, 47A, 48, 99, 100, 103, 206National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth), rr 3.1, 3.2, 3.3,…
Keep reading for free
Create a free CaseChat account to read NMFF and National Disability Insurance Agency and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2024] AATA 3182
- Decision Date
CaseChat Overview and Summary
The Administrative Appeals Tribunal (AAT) was required to determine whether the requested supports were "reasonable and necessary" within the meaning of the National Disability Insurance Scheme Act 2013 (Cth). This involved assessing whether the supports would assist the Applicant to pursue her stated goals and aspirations, whether they represented value for money, were effective and beneficial, and were most appropriately funded or provided through the NDIS. The Tribunal also considered whether certain requested supports, such as project management for home modifications, were already incorporated into the Applicant's existing plan.
The Tribunal, having considered the evidence presented by the Applicant, her mother and carer, and expert witnesses, along with submissions from the NDIA, determined that while some supports were already adequately provided for or not deemed reasonable and necessary, the NDIA had reconsidered its position on four categories of additional support. Consequently, the Tribunal set aside the reviewable decision and remitted it to the CEO for reconsideration with a direction that these specific supports be incorporated into the Applicant's participant plan. However, the Tribunal declined to direct the incorporation of the remaining disputed supports, finding they did not meet the criteria of being reasonable and necessary.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Applicant’s statement of goals and aspirations which is incorporated into her participant plan is as set out following.[9] As I understand the evidence, this has not changed since the Applicant’s first participant plan was issued:[9] Joint Tender Bundle, Tab C4, pages 575 – 576.My goalsThis is what I want to achieveShort term goalI would like to improve my independence, specifically with self-care routines.How will I achieve this goalNMFF will develop strategies and skills to improve her independence with self-care routines and be more willing to engage in self-care routines.Short term goalI would like to develop my ability to self-manage sensory processing.How will I achieve this goalNMFF will develop strategies and skills to manage her emotions in regards to sensory processing in order to improve her ability to engage in her community more often and engage in self-care routines more often.Medium or long-term goalI would like to improve my social skills and interactions.How will I achieve this goalNMFF will develop strategies and skills to engage in social interactions as well as developing the strategies to exit her home to participate in social activities more often.Medium or long-term goalI would like to have support to maintain good mental health.How will I achieve this goalNMFF will be supported to maintain her overall health and wellbeing.Medium or long-term goalI would like to become more independent with my medical needs.How will I achieve this goalNMFF will be support[ed] to become more independent with her medical needs.[10][10] The statement of goals and aspirations also includes in relation to each goal a section entitled ‘how I will be supported’. Against each goal the following is stated: ‘my family will continue to support me; my LAC will support me to connect with service providers’.The requested supports As already stated, despite the variation decision, the Applicant continued to dispute the adequacy of her statement of participant supports. On 4 April 2024 the Applicant’s Support Coordinator, Ms Gatt, provided the Agency and the Tribunal with a schedule which purported to set out the additional supports requested by the Applicant instead of, or in addition to, the supports that were incorporated into her current statement of participant supports. That document created uncertainty as it did not appear to distinguish those supports that had already been incorporated into the Applicant’s current participant plan from those requested supports that remained in dispute. It was for this reason that the Agency requested, and I conducted, a Telephone Directions Hearing on 19 July 2024 to clarify the position. In response to the directions I made at the conclusion of that Directions Hearing, on 20 July 2024, Ms XYZ and Ms Gatt gave the Agency and the Tribunal a further document which specified the additional or alternative supports sought by the Applicant as follows:[11][11] Email received from Ms Gatt 20 July 2024 at 10:39am.i.56 days of medium-term accommodation in a specified funding amount of $11,645.00, being for alternative accommodation while home modifications are completed);ii.four hours per day of support worker assistance (instead of three; that is, one additional hour);iii.Transport funding in the specified amount of $6,240.00;iv.Funding for 26 hours of occupational therapy (being for fortnightly occupational therapy sessions);v.Funding for 20 hours of occupation therapy (being for ongoing assessment during the progress of home modifications);vi.Funding for 26 hours per year of psychology (for fortnightly sessions);vii.Funding in the specified amount of $2,500.00 for project management of the home modifications;viii.Funding in the specified amount of $22,000.00 for ‘school leavers employment support’;ix.Funding in the specified amount of $35,000.00 for a wheelchair with an Efix power assist device.