NMFF and National Disability Insurance Agency

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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, 206

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth), rr 3.1, 3.2, 3.3,…

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Details
Case
[2024] AATA 3182
Decision Date

CaseChat Overview and Summary

This matter concerned an application by a young woman, the Applicant, for review of a decision made by the Chief Executive Officer of the National Disability Insurance Agency (NDIA). The Applicant, who lives with multiple impairments and disabilities including Cowden Syndrome, POTS, Autism Spectrum Disorder, Depression, Anxiety, and Post Traumatic Stress Disorder, disputed the adequacy of her NDIS participant plan, specifically the statement of participant supports. The dispute centred on various requested supports, including transport funding, home modifications, medium-term accommodation, and funding for a wheelchair.

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

I note that the Agency, after considering Ms XYZ’s evidence on the morning of 5 August 2024, sought and was granted leave to provide her with a further list of targeted questions in relation to two requested supports. The hearing resumed at 1pm on 6 August 2024 to allow time for those questions to be put, answered, and for Ms XYZ’s answers to be considered by the Agency.Background facts The Applicant is a young woman aged 16. She lives with impairments and disability that arise from Cowden Syndrome, Postural Orthostatic Tachycardia Syndrome (POTS), Autism Spectrum Disorder, Depression, Anxiety, and Post Traumatic Stress Disorder. The Applicant lives with Ms XYZ, who is her mother and primary carer, in a free-standing house which is owned by Ms XYZ subject to a mortgage, on a suburban block in a regional city in Victoria. The home has three bedrooms, a bathroom, kitchen, a combined living/dining area and an external garage.[3] [3] Joint Tender Bundle, Tab B36, Broughton Report, pages 463 – 4; Tab B37, Dewar Report, page 500; T-documents, Tab 1, “Existing and Demolition Floor Plan” Ellis Design Pty Ltd. The Applicant’s parents are separated. She sees her father once on a weekday each week, and every second weekend. The Applicant’s father does not have active involvement in her day-to-day care.[4][4] Ms XYZ evidence, Transcript Day 1 page 11, line 43 to page 12, line 19. Ms XYZ lives with a vision impairment and is also a NDIS participant. She does not have a driver’s license or own a motor vehicle. She reports having no family support and few friends.[5][5] Transcript Day 1, page 6, line 29 – 34; page 11, lines 1 -2. The Applicant is home-schooled by Ms XYZ and has been since at least 2019. Ms XYZ reports that the Applicant had to be withdrawn from school due to bullying. She is reported by Ms XYZ and Mr Broughton, Clinical Psychologist, to be socially isolated.[6][6] Broughton Report, pages 463 - 4; Ms XYZ evidence, Transcript Day , page 9, line 44 to page 10, line 23. On 11 August 2022, a planner delegate of the CEO approved a participant plan for the Applicant for the period 11 August 2022 to 11 August 2023 which included a statement of participant supports formulated in accordance with s 33(2) of the NDIS Act. On 12 September 2022, the Applicant requested an internal review of that decision under s 100(2). On 23 November 2022, the internal review delegate of the CEO decided to vary the decision under review and approve a new statement of participant supports for the period 22 November 2022 to 22 November 2023. The Applicant continued to dispute the adequacy of the statement of participant supports that was incorporated into her participant plan, and on 18 December 2022, instituted this proceeding. At that time several supports were in dispute, including transport funding, home modifications (installation of air-conditioning, a gradient ramp, and structural modifications to the bathroom to make it accessible for the Applicant), medium term accommodation while home modification work was completed, and the amount of funding allocated for the Applicant’s wheelchair.[7][7] The full- range of matters the Applicant considered in dispute at that time is set out in the Joint Tender Bundle, pages 25 – 28.

Evidence

Evidence Before The Court

Due to the original Member becoming unavailable, the proceeding was reconstituted to me on 22 May 2024. I conducted a pre-hearing Directions Hearing on 5 July 2024 and made a direction for the filing of a Joint Hearing Bundle. At the request of the Agency, I conducted a further Telephone Directions Hearing on 19 July 2024 to attempt to assist the parties to resolve a controversy that had arisen in relation to the requested supports that remained in dispute at that time. I issued some further pre-hearing directions to bring clarity to that issue, and in relation to the terms on which the Applicant’s professional witnesses had been engaged.Evidence and hearing I have considered the following material in reaching my decision:(i)Agency’s Statement of Facts, Issues and Contentions, dated 2 August 2024;(ii)Joint Tender Bundle;(iii)Confidential Psychological Report by Jeff Broughton, Clinical Psychologist, Clinical Psychology Victoria dated 1 July 2024 (Exhibit 1 “Broughton Report”);[1](iv)Occupational Therapy Functional Capacity Assessment Report by Carly Dewar, Occupational Therapist, DLS Allied Health, undated, filed 1 July 2024 (Exhibit 2 “Dewar Report”);[2](v)The documents filed by the Agency pursuant to ss 37 and 38AA of the AAT Act (the T-documents).[1] Joint Tender Bundle, Tab A3.[2] Joint Tender Bundle, Tab A4. The hearing was conducted by Video (MS Teams) on the morning of 5 August 2024 and the afternoon of 6 August 2024. The Applicant did not attend and participate in the hearing. She was represented by her mother, Ms XYZ, who gave oral evidence under affirmation. Ms A Gatt, the Applicant’s Support Coordinator, attended the hearing as an informal support person for Ms XYZ. The Applicant called as witnesses Mr J Broughton, Clinical Psychologist, and Ms C Dewar, Occupational Therapist, both of whom gave oral evidence under affirmation. The parties had the opportunity to make opening statements, present their evidence, ask the witnesses questions, and make final submissions to the Tribunal. I note that the Agency, after considering Ms XYZ’s evidence on the morning of 5 August 2024, sought and was granted leave to provide her with a further list of targeted questions in relation to two requested supports. The hearing resumed at 1pm on 6 August 2024 to allow time for those questions to be put, answered, and for Ms XYZ’s answers to be considered by the Agency.Background facts The Applicant is a young woman aged 16. She lives with impairments and disability that arise from Cowden Syndrome, Postural Orthostatic Tachycardia Syndrome (POTS), Autism Spectrum Disorder, Depression, Anxiety, and Post Traumatic Stress Disorder. The Applicant lives with Ms XYZ, who is her mother and primary carer, in a free-standing house which is owned by Ms XYZ subject to a mortgage, on a suburban block in a regional city in Victoria. The home has three bedrooms, a bathroom, kitchen, a combined living/dining area and an external garage.[3] [3] Joint Tender Bundle, Tab B36, Broughton Report, pages 463 – 4; Tab B37, Dewar Report, page 500; T-documents, Tab 1, “Existing and Demolition Floor Plan” Ellis Design Pty Ltd.

Decision

Reasons for decision

By operation of s 103(2)(b), (c)(i), and (d), of the NDIS Act the proceeding is now taken to be an application for review of the variation decision (the reviewable decision) despite s 26(1) of the AAT Act. This Tribunal has jurisdiction under s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to review this decision because it is designated a reviewable decision by s 99(1) (Item 6) of the NDIS Act. Prior to, and during, the review hearing the Agency reconsidered its position with respect four categories of additional support requested by the Applicant and agreed that the Applicant’s statement of participant supports should incorporate those items. At the Agency’s request, I have set aside the reviewable decision and remitted it for reconsideration by the CEO with a direction that these supports be incorporated into the Applicant’s participant plan. What remained in dispute were five requested supports, being 1 additional hour of assistance with self-care per day, the quantum of funding for medium term accommodation, funding for project management of home modifications, a request for Level 3 Support Coordination, and funding for a school-leaver’s employment support package. For the reasons I set out in detail as follows, I am satisfied that the requested home modifications project management support is already incorporated into the Applicant’s participant plan. In relation to the other requested supports, I am not satisfied that any of them are reasonable and necessary. I therefore decline to direct the CEO to incorporate these items into the Applicant’s statement of participant supports.Procedural history Following the filing of the application, the proceeding was referred for alternative dispute resolution in accordance with Division 3 of Part IV of the AAT Act. Three Case Conferences were held between February and August 2023. However, the dispute was not resolved by alternative dispute resolution. On 29 February 2024, the Deputy President responsible for the AAT’s NDIS Division constituted the proceeding for hearing to a Tribunal, differently constituted, in accordance with the President’s Directions made under s 19A of the AAT Act (the constitution). That Tribunal made procedural directions for the conduct of the proceeding to hearing and fixed the hearing for 5 and 6 August 2024. Due to the original Member becoming unavailable, the proceeding was reconstituted to me on 22 May 2024. I conducted a pre-hearing Directions Hearing on 5 July 2024 and made a direction for the filing of a Joint Hearing Bundle. At the request of the Agency, I conducted a further Telephone Directions Hearing on 19 July 2024 to attempt to assist the parties to resolve a controversy that had arisen in relation to the requested supports that remained in dispute at that time. I issued some further pre-hearing directions to bring clarity to that issue, and in relation to the terms on which the Applicant’s professional witnesses had been engaged.Evidence and hearing

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.